It’s Still The Same Pipeline, Same Route, & Same BL England Re-Powering Project
Still The Same Violation of Pinelands Forest Standards
Sham re-submission a test of the integrity and independence of Pinelands staff
‘Cause you’re still the same
You’re still the same
Moving game to game
Some thlngs never change
You’re still the same ~~~~ Still The Same (Bob Seger, 1978)
On Thursday May 21, 2015, South Jersey Gas Co. (SJG) submitted an amendment to their application to the Pinelands Commission seeking approval of the pipeline as “private development” under the Pinelands Comprehensive Management Plan (CMP).
Remarkably, according to news reports, if staff concur with SJG’s “new” arguments, the Pinelands Commission will not vote on the project (see process for review of “private development“), which would be an arrogant and incredible abuse of democracy and law.
Staff decisions are under the control of Executive Director Wittenberg.
As we’ve noted, Executive Director Wittenberg – a former lobbyist for the NJ Builders Association appointed by Governor Christie – is in the tank for South Jersey Gas and following orders of the Governor’s Office.
Don’t be fooled by news reports, which unfortunately were spun by SJG’s new media consultant and got the story wrong.
From news reports we select the worst, being the Press of Atlantic City story. That paper has editorialized in support of the pipeline and went along with SJG’s media strategy to embargo the announcement for maximum spin, but has since updated and revised that story, to include critics. To cover their tracks, the updated version conveniently deletes any mention of the embargo agreement:
- Part One – The “New” Spin
SJG offers a handful of talking points allegedly based on “new” information about why the “new” version of the pipeline meets the requirements of the Pinelands Comprehensive Management Plan (CMP).
SJG has blended the regulatory compliance demonstration points with media spin talking points.
- A) Compliance Arguments
We start first with SJG’s formal regulatory compliance arguments:
- The contractual agreement between South Jersey Gas and RC Cape May Holdings requires the pipeline to be used to supply natural gas to the B.L. England plant, located in the Pinelands, on at least 350 days out of the year.
- PJM Interconnection and the Department of Environmental Protection both have determined that absent significant electric transmission system improvements, repowering the B.L. England facility is necessary to avoid electric reliability violations inside the Pinelands and the surrounding region.
- A repowered B.L. England plant will supply about 86 percent of its electric output to the Pinelands once the Oyster Creek Nuclear Plant retires in 2019.
- A repowered B. L. England plant will help to reinforce electric reliability and reduce electricity congestion charges within the service territory of Atlantic City Electric, which supplies about 73 percent of all Pinelands residents, including the entire population of Atlantic and Cape May counties.
- A repowered B.L. England facility will dramatically reduce harmful air pollution within the Pinelands
We briefly rebut them in order:
1) The gas supply contract with BL England requires that SJG supply gas on 350 days/year – this allegedly shows that the pipeline “primarily serves” the Pinelands.
There is nothing “new” here. The supply contract was reviewed by the BPU 2 years ago.
In fact, BPU’s approval includes conditions that require that gas to the BL England plant be diverted from BL England plant and shifted to residential and commercial users under certain conditions, so this allegedly “new” information conflicts with an existing BPU Order.
Furthermore, the “new” information contradicts the prior justification for the pipeline, which was to provide “reliability” service to Cape May gas customers in the event of an emergency. This back up infrastructure was called “resilience”.
2) PJM and DEP reliability determinations, even if valid, are not “new” and have absolutely no legal relevance or factual bearing on the issue of whether the pipeline complies with the CMP Forest standards.
The forest standard requires that the pipeline “primarily serves” the Pinelands.
Aside from being irrelevant, the “reliability” arguments apply to the regional electric grid and gas infrastructure, which are located primarily outside the Pinelands region and therefore that argument contradicts the “primarily serves” argument.
3) The retirement of the Oyster Creek nuclear power plant has nothing to do with whether the gas pipeline complies with the CMP. It is an energy planning and policy issue outside the jurisdiction of the Pinelands Commission and the CMP.
As previously noted, the Oyster Creek plant – and the BL England plant – both produce power that is connected to and distributed by the 13 state regional PJM power grid.
By definition, those plants do not “primarily serve” the Pinelands region. The grid does not work that way.
4) Increased electric reliability and reduced congestion charges in the Atlantic City electric grid, even if valid, have nothing to do with whether the gas pipeline “primarily serves” the Pinelands and complies with the CMP.
As noted previously, these are energy regulatory matters that are outside the scope of the Commission’s jurisdiction and the requirements of the CMP.
The fact that Atlantic Electric serves 73% of Pinelands residents would be a fact that would be relevant to the issue of whether an Atlantic City electric infrastructure project “primarily serves” the Pinelands – but this is a South Jersey Gas Co. gas infrastructure project – wrong company, wrong type of project!
5) Whether a repowered B.L. England facility would dramatically reduce harmful air pollution within the Pinelands would be a factual question that would be relevant to whether a BL England plant project, conducted by owner RC Cape May Holdings, was consistent with the forest standards and the CMP.
But again, first of all, this is not “new” information or a “new” argument.
The air quality benefit argument was presented by DEPin December 2013 (see also this post, and note that all the links to the DEP documents have been shut down by DEP):
Second, the argument is not accurate – as I noted, the so called “air quality analysis” did not validly compare existing emissions with repowered emissions in light of days of operation. The analysis was based emission rates.
A very different conclusion would result if total emissions were considered, based on peak plant (a few hours per day on 25 days per year) versus base load (24 hour per day, 350 days per year) operation.
Furthermore, the air quality analysis did not consider lifecycle, secondary and cumulative emissions of greenhouse gases, which are regulated pollutants under NJ DEP regulations.
Finally, the BL England plant air emissions argument does not apply to a SJG gas pipeline project – different companies, different energy infrastructures.
- B) Media Spin
South Jersey Gas Co. has hired a media consulting firm – here are some arguments they spun the press with:
1) There are “new” deed restrictions placed on connections along the pipeline route, thereby preventing new secondary development along the route through the Pinelands. Press of AC:
South Jersey Gas is also pursuing a deed restriction with the state Board of Public Utilities, so residents of the Pinelands Forest Area would not be allowed to tie into it, thus negating the fear it could spur development there.
“We are going to the BPU and asking them to tell us we are not allowed to connect unless ordered to do so by them,” Fatzinger said. “It puts teeth in a committment we already made.”
This also is an “old” argument.
In fact, the Pinelands Commission’s draft approval of the old MOA specifically included conditions that required such deed restrictions.
More importantly, the argument totally contradicts the “primarily serves the Pinelands” requirement. If connections in the Pinelands are prohibited, the pipeline clearly does not serve the Pinelands gas consumers.
2) There are design changes to the project – this was picked up by the Press of Atlantic City story:
The company has also changed some aspects of the pipeline design, Fatzinger said.
The interconnection station in Upper Township has been moved outside the Forest Area, and about four miles of pipeline would be laid using directional drilling rather than open-cut trenching to minimize surface impact, particularly in Forest Area, he said.
I got a kick out of this one – first of all, removing an interconnect from there forest area is irrelevant to whether other portions of the pipeline project that remain in the forest area comply with the CMP.
But more importantly, by admitting that the prior project would have “surface impact” in the forest area, it completely contradicts the original arguments that the pipeline route would have “minimal disturbance”, followed existing roadway right-of-way, and would haven little to no impact on the Pinelands!
- Part Two – Background – how we got here
We restate this for context and so that people remember why the Pinelands Commission staff found that the pipeline was not consistent with the forest area standards and violated the CMP.
I always thought it was an obvious bold lie for the South Jersey Gas Corporation (SJG) – a private, for profit, corporation – to attempt to use the Board Of Public Utilities (BPU) to seek a Memorandum of Agreement (MOA) with the Pinelands Commission to resolve conflicts with the forest standards of the Comprehensive Management Plan (CMP).
Under the Pinelands Commission’s CMP regulations, a MOA can resolve a conflict with a standard, if an “equivalent level of protection” of Pinelands resources can be demonstrated.
However, a MOA is limited to a “development initiated by a state or local public agency” (see NJAC 7:50-4.52) - it is obvious that SJG is not a “public agency” and that the pipeline was not to be “initiated” by the BPU.
That big lie failed, ironically for other reasons, when the Commission deadlocked in a 7 – 7- tie vote on the MOA on January 10, 2014.
But, as we repeatedly warned – particularly during the Assemblyman Fiocchi ethics challenge:
Wolfe also clarified that the matter was in fact still a live “contested case” as a result of the South Jersey Gas litigation, and the matter was still pending before the Appellate Division.
Despite the Commission’s 7-7 vote on the proposed MOA, the SJG pipeline application has never been withdrawn, thus the application technically still remains before the Pinelands Commission.
Although the MOA was defeated and SJG legally appealed that action by the Commission, SJG never withdrew their underlying original pipeline application, and it always remained before the Commission.
SJG now seeks to amend and revive Commission review
Under CMP rules, the pipeline is defined as “public service infrastructure”:
“Public service infrastructure” means sewer service, gas, electricity, water, telephone, cable television and other public utilities developed linearly, roads and streets and other similar services provided or maintained by any public or private entity.
“Public service infrastructure” is only allowed in the forest area under certain conditions.
The underlying reason that SJG try to rely on a MOA was because the pipeline would violate the forest standards of the CMP, which require that the pipeline (NJAC 7:50-5.23 (b)12)
Public service infrastructure intended to primarily serve the needs of the Pinelands
The Pinelands Commission staff found that the SJG pipeline project was not consistent with the forest standards of the CMP because the pipeline dod not “primarily serve” the Pinelands.
SJG agreed with and did not challenge that finding.
Nothing has changed – legally or factually – in the design of the project to alter that original staff finding.
The only thing that has changed is the political composition of the Pinelands Commission.
Staff must demonstrate their independence and integrity and reaffirm the original determination.
- Part Three – Conclusions and Future Directions
Here are the only talking points you need to know:
- There is nothing of legal or factual relevance that is “new”
- The same original conflict with the forest standards of the CMP remains
- The Staff’s credibility and integrity are on the line – they must not bow to political pressure and must reaffirm their original finding that the pipeline is not consistent with the forest standards because it does not “primarily serve” the Pinelands.
If staff re-affirm the prior determination that the pipeline is not consistent with the forest standards, then the only option (short of denial) is for SJG to seek “waiver of strict compliance”.
As we’ve previously noted, the CMP requires that waivers may only be issued for projects with a “compelling public need” and for which there are “no feasible alternatives” – the SJG pipeline does not meet wither of these standards.
Take a look at what Pines rules require::
7:50-4.64 Standards for establishing compelling public need
- (a) An applicant shall be deemed to have established compelling public need if the applicant demonstrates based on specific facts and the Pinelands Commission verifies that one of the following conditions exist:
- The proposed development will serve an essential health or safety need of the municipality or, in the case of an application serving more than one Pinelands municipality, the county in which the proposed development is located, and:
- The public health and safety require the requested waiver;
- The public benefits from the proposed use are of a character that override the importance of the protection of the Pinelands as established in the Pinelands Protection Act or the Federal Act;
- The proposed use is required to serve existing needs of the residents of the Pinelands; and
- No feasible alternatives exist outside the Pinelands Area to meet the established public need and that no better alternatives exist within the Pinelands Area;
No way this project can meet these standards. NO WAY (see also 7:50- 4.62).