In re N.J. Pinelands Commission's Approval of N.J. Nat. Gas's
| Decision Date | 29 April 2021 |
| Docket Number | DOCKET NO. A-1004-17,DOCKET NO. A-0925-17 |
| Parties | IN THE MATTER OF THE NEW JERSEY PINELANDS COMMISSION'S APPROVAL OF NEW JERSEY NATURAL GAS'S APPLICATION (NO. 2014-0045.001) FOR THE INSTALLATION AND OPERATION OF THE SOUTHERN RELIABILITY LINK PROJECT, COMMISSION RESOLUTION PC4-17-10 |
| Court | New Jersey Superior Court – Appellate Division |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
Before Judges Yannotti, Haas, and Natali.
On appeal from the New Jersey Pinelands Commission, No. 2014-0045.001.
Daniel A. Greenhouse argued the cause for appellant Sierra Club (Eastern Environmental Law Center, attorneys; Daniel A. Greenhouse, on the brief).
Paul Leodori argued the cause for appellant Pinelands Preservation Alliance (Law Offices of Paul Leodori, PC, attorneys; Amy Huber, on the brief).
Kristina Miles, Deputy Attorney General, argued the cause for respondent New Jersey Pinelands Commission (Gurbir S. Grewal, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Kristina Miles, on the brief).
Dennis J. Krumholz argued the cause for respondent New Jersey Natural Gas Company (Riker, Danzig, Scherer, Hyland & Perretti, LLP, attorneys; Dennis J. Krumholz, of counsel and on the brief; Michael S. Kettler, on the brief).
Sierra Club (SC) (A-0925-17) and Pinelands Preservation Alliance (PPA) (A-1004-17) appeal from the final decision of the Pinelands Commission to approve an application by New Jersey Natural Gas Company (NJNG) for the construction and installation of a natural gas pipeline known as the Southern Reliability Link (SRL) within the Pinelands Area. We address both appeals in this opinion. For the following reasons, we affirm.
In 2015, NJNG proposed the construction and installation of the SRL, an approximately thirty-mile, thirty-inch intrastate high-pressure natural gas transmission pipeline to service its existing customers in Burlington, Monmouth and Ocean Counties. The proposed pipeline would connect NJNG's existing natural gas system, which serves its customers in those counties, to a newinterstate supply point located in Chesterfield and operated by Transcontinental Pipeline Company (Transco). The SRL would run eastward through Chesterfield, North Hanover, Upper Freehold, Plumsted, Jackson, and Manchester Townships.
As proposed, a 12.1-mile section of the pipeline would cross the State-designated Pinelands Preservation Area running through three municipalities in Ocean County. That portion of the pipeline would be installed almost entirely within existing rights-of-way and roads. The SRL would cross three Pinelands Management Areas: (1) 10.45 miles in the Military and Federal Installation Area on the federal military's Joint Base, McGuire-Dix-Lakehurst (Joint Base); (2) 1.42 miles in a Rural Development Area (RDA); and (3) 0.21 miles in a Regional Growth Area (RGA). NJNG maintains a natural gas distribution system that serves many of the buildings and facilities in the Joint Base's Lakehurst section. Public Service Electric and Gas Company (PSE&G) services the larger remaining section of the Joint Base.
In April 2015, NJNG submitted an application to the Commission seeking approval to construct and install a section of the SRL in the Pinelands Area. NJNG also filed a petition pursuant to N.J.A.C. 14:7-1.4, seeking the Board's approval to install and operate a natural gas pipeline "with a maximum operatingpressure in excess of 250 psig [pounds per square inch gauge] within 100 feet of any building intended for human occupancy" (the Safety Petition); and a petition pursuant to the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, seeking a determination that the SRL is "reasonably necessary for the service, convenience or welfare of the public," N.J.S.A. 40:55D-19, along with an application to designate a "practicable" route for the pipeline pursuant to N.J.S.A. 48:9-25.4 (the MLUL Petition).
NJNG later revised the SRL's proposed route and submitted an amended application to the Commission and amended petitions to the Board. The Commission's staff reviewed NJNG's amended application pursuant to the coordinated permitting process in the Comprehensive Management Plan (CMP) Rules, N.J.A.C. 7:50-4.81 to -4.85. The staff issued a "certificate of filing" in December 2015, finding the SRL project was consistent with the minimum standards of the CMP. Thereafter, the Commission's Executive Director sent a letter to the Board dated March 10, 2016, stating that the project was consistent with the CMP. Various parties appealed to this court from the Executive Director's determination.
Meanwhile, in January 2016, the Board granted NJNG's petitions. Addressing the MLUL Petition, the Board found that the proposed SRL pipelinewas "reasonably for the service, convenience and welfare of the public pursuant to N.J.S.A. 40:55D-19." The Board noted that the SRL was intended to provide adequate supply, reliability and redundancy to the southern portion of NJNG's service territory, which includes the Joint Base. Thereafter, the Board submitted its record to the Commission, including all public comments and documents submitted as part of its proceedings.1
In November 2016, we issued our opinion in In re Petition of South Jersey Gas Co. (SJG), 447 N.J. Super. 459, 465 (App. Div. 2016), a case in which various parties had challenged the Commission's approval of a similar pipeline proposed by South Jersey Gas Company, arguing that the Executive Director did not have authority to issue a final decision on whether a particular use is consistent with the minimum standards of the CMP. We held that only the Commission had "the authority to render final decisions on CMP compliance . . . in the coordinated permitting process." Id. at 477. Consequently, we remanded the matter to the Commission with specific instructions on the mannerin which further proceedings on the application should proceed. Id. at 478-79, 484.
Following our decision in SJG, the Commission filed motions in the pending appeals from the approval of the SRL so it could re-review NJNG's amended application under the same procedural guidelines that we set forth in SJG. We granted the motions, remanded the matters to the Commission, and dismissed the appeals.
At its meeting on June 9, 2017, the Commission adopted Resolution No. PC4-17-10, which set forth its process for determining whether the SRL was consistent with the CMP's minimum standards. In the resolution, the Commission stated it would incorporate the extensive record developed before the Board on the MLUL and Safety Petitions into its own record.
The Commission decided that it would not refer the matter to the Office of Administrative Law (OAL) for an evidentiary hearing, finding that such a hearing was unnecessary in view of the issues to be decided and extensive record already developed. In addition, the Commission established a process for public comment, and stated that a party could request an adjudicatory hearing if the party had a statutory or constitutional basis for such a proceeding.
PPA and certain individuals (Daniel Caruso, Patricia Caruso, and Jean Kovath) then filed requests with the Commission seeking an adjudicatory hearing on NJNG's application. The Commission denied the requests finding that the PPA and the individuals did not have a statutory or constitutional right to an adjudicatory hearing.2
Thereafter, at a public hearing conducted in July 2017, forty-five individuals, including representatives from SC and PPA, provided oral comments on NJNG's application. The Commission also received 1319 written comments on the application.
On August 29, 2017, the Executive Director issued a report recommending approval of NJNG's application with conditions to ensure the project would not have any unanticipated adverse impacts on the Pinelands area. The report addressed all public comments and recommended that the Commission find NJNG's proposal was consistent with the minimum requirements of all relevant CMP standards.
While the matter was pending before the Commission, PPA and others submitted separate letters to the Commission's ethics liaison officer and the State Ethics Commission (SEC), asserting that Commissioners Alan Avery and Gary Quinn should be disqualified from participating in the Commission's vote on NJNG's application due to alleged conflicts of interest. The SEC's acting Executive Director determined that neither Commissioner had a conflict of interest requiring recusal.
On September 14, 2017, the Commission approved NJNG's application for the construction and installation of the SRL through the Pinelands Area, subject to conditions suggested by the Executive Director. The Commission noted that it had reviewed the public's comments, the extensive evidentiary record, and the Executive Director's recommendation report.
The Commission found "ample evidence" demonstrating that the proposed installation of the SRL, with the recommended conditions, was consistent with the minimum standards of the CMP. The Commission memorialized its action in Resolution No. PC4-17-27. The Commission also denied a motion to stay installation of the SRL pending appeal. These appeals followed. In July 2020, SC moved before this court for a stay of construction of the pipeline. We denied the motion.
In its appeal, SC argues: (1) the SRL does not meet the CMP's minimum standards for development and land use in a RDA of the Pinelands; (2) the Commission arbitrarily and capriciously decided that the need for the pipeline overrides the importance of protecting wetlands in the Pinelands; (3) the Commission erred by finding that installation of the SRL in forested wetlands and the removal of trees from that area will...
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