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Some PennEast Pipeline Opponents Want To Take Their Open Space Ball And Go Home

The Pipeline Battle Is About Climate Chaos And Fossil Infrastructure, Not Open Space

The Battle Will Be Won By Solidarity, Activism & Holding Government Accountable

I want to make a few points of contrast to explain why the response by conservationists to the 3rd Circuit Court of Appeals decision on the PennEast pipeline is so wrong headed, selfish, counter-productive, diversionary, and outright dangerous. You can read that response by Michele Byers of NJCF here:

Yesterday, I wrote a post that began as a summary of my comments on fatal flaws in the PennEast pipeline permit applications, but, as I was writing it, I got interrupted by news reports of the 3rd Circuit Court of Appeals decision that found PennEast could not condemn State owned lands.

My original intent was to illustrate how all pipelines and fossil infrastructure could be killed by informed activists pressuring Gov. Murphy to impose a moratorium on approval of new fossil infrastrucure and then direct DEP to enforce the federal Clean Water Act by denying a Section 401 Water Quality Certificate.

As I’ve written, the precedent and model for this two step policy is Gov. Florio’s 1990 moratorium that ended construction of more garbage incinerators, statewide. Florio didn’t target or kill a single project, he killed them all.

Exactly like the Florio moratorium and Solid Waste Plan revision, the CWA 401 WQC regulatory tool can be applied to virtually all fossil infrastructure .

The strategy I laid out was a combination of activism, democratic accountability, and regulatory enforcement, with a statewide focus and objective to prevent climate chaos.

That post was intended to support the Empower NJ campaign to pressure Gov. Murphy to impose a moratorium on all new fossil infrastructure.

That pressure is building and it comes at a critical time as the Murphy BPU is seeking public input on and is about to adopt the Energy Master Plan and PennEast and other fossil permit applications are pending before the Murphy DEP .

In other words, the timing is critical because fundamental State policy decisions that effect the future of the climate chaos issue are about to be made.

We are at a critical moment when all focus and attention need to be on Gov. Murphy and the climate crisis. We need to educate and mobilize the public to act now. We need a laser beam focus on the tools to hold the Gov. accountable to. We need a unified voice and solidarity.

In contrast, Michele Byers wants opportunistically and selfishly to refocus the entire debate and take her open space ball and go home.

This is not about open space. There will be plenty of open space if the climate crisis hits irreversible tipping points and the earth becomes unable to support agriculture or rising temperatures make the earth uninhabitable.

Byers’ Op-Ed never once even mentions the climate emergency, the Empower NJ moratorium campaign, the BPU EMP, or the CWA Section 401 WQC pending before DEP.

Just the opposite, she takes the pressure off the Gov. and DEP by claims that the PennEast permits are “in limbo”, without even mentioning all the other pending fossil infrastructure permits before DEP.

If DEP permits are “in limbo” and the Court’s decision “protected open space” and “stopped PennEast in its tracks”, that provides an excuse for the elite Hunterdon County conservationists to take their open space ball and go home. No need to remain active on climate chaos. No need to lend support to state, national and global climate campaigns, from Empower NJ, to the Green New Deal, to the Sunrise Movement and Extinction Rebellion

Byers’ unconditionally praises Attorney General Grewal, when she should link the PennEast legal issues to statewide concern and be demanding that AG Grewal act to enforce laws to block all pending fossil projects, not cherry pick one.

The praise amounts to green cover for the Murphy administration.

Byers exaggerates the precedential value of the decision and falsely claims that the decision was “groundbreaking” (see my prior post for explanations).

Importantly, Byers neglects to mention the specific “workarounds” that the 3rd Circuit Court specifically identified, including land condemnation by FERC and legislation by Congress. These “workarounds” undermine the value of the decision in terms of killing the project – and protecting preserved lands, her single objective – and the public needs to understand the “workarounds” to prevent them from happening. So let me repeat what the Court actually wrote about “workarounds”:

But our holding should not be misunderstood. Interstate gas pipelines can still proceed. New Jersey is in effect asking for an accountable federal official to file the necessary condemnation actions and then transfer the property to the natural gas company.

Byers’ sole focus on lawyers and courtrooms disempowers activism and undermines democracy.

The Byers Op-Ed diverts attention from the climate issue, from the fossil moratorium campaign, from the BPU Energy Master Plan, and from the pending DEP permit reviews.

Byers writes selfishly about a single project in the backyards of her elite members and contributors.

She does not write in solidarity with activist working on a statewide moratorium.

And this selfish diversion comes at an absolutely critical time.

All this is not helpful – it is dangerous.

[End Note: I predicted and warned about exactly these kinds of problems over 4 years ago, see:

[End Note #2 – In addition to the above political scandals, I want to emphasize that the legal rounds upon which the 3rd Circuit Court ruled are essentially reactionary, not progressive. The case was decided based on the 11th amendment “sovereign immunity” principle. That’s part of the “states right’s” doctrine, and it not only denies citizens access to justice to hold state officials accountable, but it has been used historically to exploit Native Americans. I would want no part of a win on those grounds, which are analogous to winning on “separate but equal” grounds. Shame.

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