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Missing The Point On Pipelines

[Update: 11/23/15 – my smart readers informed me that the Bergen Record article I criticize below was generated by a recent League of Municipalities conference panel.

Here is the League’s analysis of the regulatory issues the panel discussed.

The League made one serious error by claiming that DEP environmental review of gas pipelines is preempted by FERC.

As I’ve written numerous times now – backed up by case law and statute and EPA guidance –  the DEP is NOT preempted by the Natural Gas Act with respect to the exercise of State delegated Clean Water Act Section 401 and 404 powers or Coastal Zone Management Act powers.

By the same token, I have muddied the waters with respect to the preemption issue on oil pipelines. I suggested that preemption of local land use powers would result from BPU petition under the MLUL. That petition process applies only to gas pipelines as public utlities, it does NOT apply to oil pipelines.

However, it is likely that oil pipelines have eminent domain powers and preempt local land use review powers under other statutes and Court decisions, as discussed in the Leagues’s analysis.

Regardless, I find it remarkable that the League of Municipalities is better informed and BETTER FOCUSED than NJ environmental groups BY CALLING ON DEP TO CONDUCT STRICT ENVIRONMENTAL REVIEWS. ~~~ end update]

When environmental groups began their campaign against the Keystone XL pipeline, they did not expect the Mayor and Town Council of Fort Peck Montana to pass a local buffer ordinance to protect the Missouri River from the pipeline and thereby kill it.

[In case it is not obvious and clear – which it is not to a reader who just sent me an email – I am RIDICULING the notion of expecting a town in Montana to use a buffer ordinance to kill KXL. That does NOT mean I oppose a Town in Montana and the people living there from doing events and activism opposing the KXL. But I would urge them to focus their political energies on President Obama.]

Similarly, although the KXL required approval by the US State Department, pipeline opponents didn’t primarily focus on lobbying the Secretary of State or hold protests and get arrested at the State Department.

They targeted President Obama and held protests at the White House.

When Shell Oil announced plans to drill for oil in the arctic, environmentalists did not expect towns in Alaska to pass local ordinances to block the drilling.

While environmental groups did engage obscure permit requirements – such as  EPA air permits and USFWS drilling restrictions, the public campaign, protests, and the media all focused on President Obama.

Closer to home, when NY anti-fracking activists challenged fracking, they targeted Governor Cuomo.

They won. Cuomo issued a moratorium

For the same reason, off shore LNG opponents focused on Governors Cuomo and Christie’s regulatory power to veto the project.

They won. Cuomo vetoed the project (even Gov. Christie vetoed the prior proposed project, before he was running for President).

So why on earth are NJ oil and gas pipeline opponents and the press ignoring these huge wins and totally ignoring the correct target who has the political and regulatory power to kill the various pipelines?

[If the reader that just sent me that email needs a translation: this means mounting a public campaign targeting Governor’s Cuomo and Christie to use their Clean Water Act powers to deny State DEC and DEP permits, OK?]

In sharp contrast, their NY State colleagues get it right.

Why are they instead focusing all their resources, campaigning and organizing efforts on local Resolutions, local ordinances, symbolic political stunts like Legislative Resolutions, opinion polls, jobs impact studies, and FERC reviews under NEPA?

Today’s Bergen Record story is another perfect example of that total failure:

I found this particularly galling:

It’s a question about the possible extent of municipal power that appears untested in New Jersey — and one that activists say is crucial to protecting watersheds that supply millions of state residents.

The extent of my injuries if I jump head first off my roof onto the pavement is an untested question too.

[NJ is not Pennsylvania – we have no Constitutional Right to a healthy environment. The PA Supreme Court decision overruling Act 13 preemption in favor of home rule regulation fracking won’t work here. The NJ MLUL expressly provides for “utility” preemption of local power via petition and BPU routinely grants preemption petitions. Linear utility projects are exempt from the Highlands Act, but not DEP regulation.]

The legal responsibility to protect the water supply for people of NJ rests with the NJ DEP, pursuant to state and federal laws. Local governments have very little responsibility or legal power in this regard.

And just who are these “activists” who say this is a crucial issue? Whoever they are, they don’t know what they are talking about.

The reporter – in perhaps the biggest buried lead ever – tangentially refers to some of the real issues at play, but fails to focus on “the decider” or even mention the most crucial tool to kill the pipeline.

After emphasizing local controls, way down towards the end of the story, we finally read this:

However, under state law, an interstate oil pipeline — unlike a natural gas pipeline — would be subject to full environmental review including wetland permits, Highlands approval and Flood Area Hazard Control rules.

On top of burying the lead and real story, the reporter got it only one quarter right overall, and made a crucial error with respect to gas pipelines.

Yes, oil pipelines are subject to environmental review and State permits.

[NY has an environmental impact statement review law called SEQRA – NJ does NOT. So it is not accurate for the story to state that the pipeline “would be subject to full environmental review”. That distinction is as important as oil v. gas and interstate v. intrastate and State v. local tactics.]

But the story left out the most important State regulatory power under the Clean Water Act and the fact that the NJ reservoirs and waters of the Highlands Preservation Area are all “Category One” (C1) waters protected by federal Clean Water Act based NJ State Surface Water Quality Standards (SWQS) from “any measurable or calculable change in existing water quality” (physical, chemical and biological characteristics). Enforcement of those SWQS could kill the pipeline. As I’ve written, Flood Hazard rules can not.

and there are no regulatory teeth in EPA Sole Source aquifer designation.]

The story got it flat out wrong with respect to natural gas pipelines.

Natural gas pipelines are subject to review by FERC under federal law and local ordinances are preempted.

But the State DEP has power to kill a FERC regulated interstate natural gas pipeline under Section 401 of the Clean Water Act that is not preempted.

I’ve been writing about this for months, so it is absurd that many of the NJ environmental groups opposing pipelines apparently still don’t get it and keep getting it wrong.

This is a major failure on their part and it is becoming intolerable.

Finally, to top it all off, the story closes with reporting this major flaw in pipeline regulation, which is attributed to Inside Climate News:

But the anti-pipeline group’s website cites an Inside Climate News finding that 135 inspectors oversee 2.6 million miles of pipelines, and only one fifth of that length has been inspected in the past eight years.

That really irks me because my organization, PEER, was the group that filed the FOIA and first disclosed those facts and broke that story, see:


Hundreds of Spills Draw No Inspection; 2 Million Pipeline Miles Remain Uninspected

[Update 11/23/15 – I just tracked down the source of the mistake. It rests with the Bergen Record reporter or editors, because the Inside Climate News story correctly attributed our work as follows:

According to an analysis of inspection records by the nonprofit Public Employees for Environmental Responsibility (PEER), only a fifth of the nation’s 2.6 million miles of pipeline have been inspected by PHMSA or its state partners since 2006. PEER obtained the records through the Freedom of Information Act.  ~~~ end update]

It’s bad enough that the “activists” and the press get the regulatory issues and political targets all wrong, but then they cite our work without attribution.


[PS- this has nothing to do with a small D democratic “grassroots activists strategy” versus a top down, Trenton based, elite professional, or insider lobbyist strategy.

Grassroots opposition to pipelines is necessary – but activists need to select the proper target: both political and regulatory.

It also has nothing to do with trying to limit and narrow the focus of activists to just DEP or water issues.

Again, there are multiple good reasons for opposing pipelines.

But regardless of the reason why people oppose a pipeline, they should be focused on the best tactics to KILL THE PIPELINE.

I’ve been doing this stuff for 30 years – probably longer than the lives of many of the well meaning but misguided activist that seem to be driving the news coverage.

pps – What is the true objective of the activists? To win? Or to lose and build on resentment for some larger battle?

To win? Or to canvass, organize, and fundraise?

To win? Or to cut a deal that avoids preserved lands, maximizes co-location and provides a huge pot of mitigation money?

Does the organizing model of these activists seek to build power by a win (i.e. killing the pipeline) or by a loss, i.e. reaping the anger of those who are pissed off after the pipeline is approved?

ppps – I just got a question from a Pinelands pipeline activist – both those are intrastate pipelines that need Pinelands Commission approvals.

I was focused on Pilgrim and PennEast north jersey pipelines
For the most part, the Pines pipelines battles are correctly focused  – those battles are driven by a well informed analysis of the regulatory buttons to push and the institutions and decision makers to pressure and the messages and tactics to push those buttons.
That is not the case in the north jersey battles – I should have made that clear.


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