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Pipe Dreams

A Moratorium On Fossil Infrastructure Is Necessary

Local Resolutions, NEPA, & FERC Won’t Block Pipelines

“I’m not afraid to listen to Bill Wolfe when he has a good idea,”[Senate Environment  Committee Chairman] Smith said. Wolfe says he would like the Legislature to take a stronger stance with a bill to require action by the DEP. ~~~  Kirk Moore of thAsbury Park Press story on 9/27/10

[Intro Note: I understand that a State level moratorium is radical, complex, not a panacea that would solve all fossil infrastructure problems, and would NOT stop the Clean Water Act Section 401 water quality certification review clock for FERC pipelines. It is still a great idea. – 11/3//15 update, end]

NJ doesn’t have coal mines, oil wells, tar sands, or fracking wells to shut down – our challenge is infrastructure.

Aim high friends, this is what is necessary: along with a pledge of resistance and direct action to “throw your body on the gears of the machine” (Savio).

Dear Senator Smith:

I am writing to suggest the need for legislation and present a modest proposal for your consideration.

I assume you are familiar with the various pipeline controversies underway throughout the state, as well as the most recent climate science that warns that we must keep at least 80% of known fossil fuel reserves in the ground if we are to avoid catastrophic warming.

The PennEast gas pipeline capacity alone (1 billion cubic feet per day) would create 21.5 million tons per year of CO2 emissions – that’s more than NJ’s entire instate power sector (using US Energy Information Administration emission factors) – and that does not include far more potent methane emissions from upstream fracking wells and transmission.

Obviously, NJ can’t honor or attain the Global Warming Response Act emission reduction goals if we continue to build fossil infrastructure. 

While the Governor’s power to veto off shore LNG is well known, relatively few people are aware that the DEP has power to kill a FERC regulated pipeline under Section 401 of the Clean Water Act by denying a “water quality certification”. There is a sound legal and scientific basis to do so, given the fact that the PennEast pipeline would cross many (some estimate 31) Category One streams protected by NJ’s EPA approved Clean Water Act anti degradation policy of “no measurable or calculable change in existing water quality”.

(DEP could use State law and regulation to deny permits for non-FERC regulated and intrastate pipelines that impact C1 waters – and all reservoirs are C1 waters. A regulatory roadmap outlined in this post).

Similarly, the Pinelands Commission blocked the proposed South Jersey Gas pipeline, but BPU revived it and is poised to approve it via unilateral and highly dubious regulatory determinations by the Pinelands Commission’s Executive Director.

So, here’s my idea for legislation – it is modeled on the Newark Watershed Moratorium and the Gibson bill Pinelands/Cape May moratorium on water withdrawals:

Introduce a bill to impose a moratorium on State agency approvals of pipelines pursuant to Clean Water Act and NJ Water Pollution Control Act until DEP conducts a study of water quality and climate impacts and develops adequate regulatory safeguards.

There have been many moratoria in NJ –


Some have been declared by the Gov. via Executive Order and some by the Legislature via legislation and one by an administrative agency (DRBC fracking moratorium).

The Pinelands Act and the Freshwater Wertlands Act came about as the result of moratoria declared by Governors.

The common theme in all of them is the existence of an immediate and dire threat that requires some kind of time out until safeguards can be put in place.

The Pinelands Kirkwood-Cohansey aquifer study to determine ecologically safe amounts of withdrawals came about with a kind of a moratorium: as a response to salt water intrusion threats, a law was passed that funded the Pinelands Commission/USGS research and it prohibited additional water withdrawals in Cape May until science found a “safe” level”.

New York Times:

“Mr. Gibson’s bill, which was approved in 2001, called for a $2 million study of the projected population and water demands in Cape May County over the next 50 years. The bill also called for a moratorium on new permits to withdraw groundwater in Cape May County — unless the applicant could prove the withdrawal would not exacerbate the saltwater intrusion.


Statement on Gibson bill:

As amended by the committee, this bill would require the Pinelands Commission, in cooperation with the Department of Environmental Protection (DEP), Rutgers, the State University, and the United States Geological Survey (USGS), to assess and prepare a report on the key hydrologic and ecological information necessary to determine how the current and future water supply needs within the pinelands area may be met while protecting the Kirkwood-Cohansey aquifer system and while avoiding any adverse ecological impact on the pinelands area. This bill as amended would appropriate $5.5 million to the Pinelands Commission for that purpose.

Also, as amended by the committee, the bill would require the DEP, in cooperation with the USGS, to assess and prepare a report on sustainable water supply alternatives within Cape May county, but outside of the pinelands area, necessary to meet the current and future water supply needs of Cape May county while avoiding any adverse ground water or ecological impact on Cape May county.

During the assessment and preparation of the report, the bill allows DEP to issue approvals or allocations for increased ground water withdrawals in Cape May County only upon a finding that they will not accelerate salt water intrusion, lower existing stream base flow or harm ecological functions or wildlife. 


Here’s another example from North Jersey – the Newark Watershed development moratorium – which was linked to passage of legislation authorizing DEP to regulate buffers – that bill never passed and the moratorium remains almost 30 years later. The Appellate Division explained:

“The vehicle chosen was a moratorium on the transfer of watershed lands, to permit time for the DEP to study and report on the need for and means to secure watershed protection. Included in the proposed study was an evaluation of the effectiveness of establishing buffer zones around public water supply reservoirs for the purpose of protecting drinking water quality.

DEP was further directed to transmit its study, upon completion, to the Governor, the BPU and the Legislature. The Act provided for exemptions from the moratorium, but only upon a showing “that there is a compelling public need for the conveyance of the property, that the denial of the exemption would result in extraordinary hardship, or that the sale or development of the watershed property is otherwise consistent with the purposes of this act.” Applications for exemptions under the Moratorium Act were made subject to consideration by the Review Board, which was created by the Act, consisting of the Commissioner of DEP, the Commissioner of the Department of Community Affairs and the President of the BPU.”


We now are faced with a far more significant – in fact existential –  imminent and substantial threat of climate catastrophe that warrants a moratorium.

No more carbon fuel infrastructure until we know what the impacts of more greenhouses gases are going to be.

No need to be timid or reluctant in making this bold demand – similar moratoria have been enacted – This is politically feasible – and we are on firm scientific and historical grounds.



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