Opinion: It’s Time for a Moratorium on All Fossil Fuel Projects in NJ

R. William Potter | May 23, 2019 | Opinion
Calling on governor to order a freeze on pipeline and power-plant projects ‘while we still have a chance’ to mitigate worst impacts of climate change

Credit: Amanda Brown
R. William Potter
For anyone even remotely concerned with the clear and present dangers of global warming and climate change — catastrophic sea-level rise, a million species extinguished, extreme weather rendering some areas uninhabitable — there is a must-read report focused on the New Jersey impacts and what we must do at least to mitigate these apocalyptic forecasts.

The report is “Fighting Climate Change in NJ: The Urgent Case for a Moratorium on all Fossil Fuel Projects,” which gives the lie to the myth that anything written by a committee will be a stylistic mess. Not this one. Researched and composed by a “gang of nine” on behalf of a “growing coalition of more than 50 environmental and grassroots groups” called “Empower NJ,” the report makes a powerful and readable case for stopping the eight natural gas pipeline/compressor station projects, and four gas-fired power plants, currently in various stages of development in New Jersey.

The Empower NJ report opens by reciting the irrefutable fact that it will be impossible for New Jersey to achieve Gov. Phil Murphy’s directive in Executive Order 28. That order commits the state to “achieving 100% clean energy [by 2050] and directs the adoption of an updated Energy Master Plan … detailing how this goal will be achieved.” But it clearly can’t be achieved “if these fossil fuel projects, transporting or burning natural gas mined from the fracking fields of Pennsylvania are completed and become operational.”

The two scenarios cannot be reconciled. We can increase dependence on currently cheap natural gas that emits both carbon and methane — which is 86 times as damaging as carbon in the short term — or we can advance upon a 100-percent renewable energy future. But we can’t have both.

Hence, the coalition’s call for Gov. Murphy to issue an immediate moratorium that will remain in place “until rules, procedures and plans are implemented to regulate and reduce GHG (greenhouse gases) consistent with EO 28, NJ’s Air Pollution Control and Global warming
Response Acts, and our commitments to the US climate Alliance.”

On the face of it, this call for the governor to declare a moratorium halting all fossil fuel projects until we get our regulatory act together seems both reasonable and necessary, but it raises a meaty constitutional question: Is it legal? Is it an unconstitutional “regulatory taking” of private property without just compensation?

The precedents exist

A trip down memory lane reveals solid precedent for the governor to take such extraordinary action. On March 10, 1979 Gov. Brendan T. Byrne issued Executive Order 71 declaring that for 18 months from the date of the order or “until enactment of state legislation” establishing a Pinelands Protection and Planning Commission, whichever is earlier, “no state department or agency shall take final action on any application for financial assistance, for a grant, or permit … or other approval for any development or construction within the pinelands preservation area.”
Although state legislators complained loudly about the governor’s “power grab,” they eventually enacted the Pinelands Protection and Planning Act to safeguard the ecologically unique 1 million acres of “pine oak forest, extensive surface and groundwater resources and a wide diversity of rare plant and animal species.” In short, the moratorium worked as planned and was thereafter lifted.

Less than a decade later, a Republican governor, Thomas Kean, on June 8, 1987 wielded the moratorium gavel fashioned by Gov. Byrne to protect 300,000 acres of freshwater wetlands threatened by “continuing random and scattered development and construction, rapidly increasing storm water runoff, endangering water quality, the economy, food supply and fish and wildlife resources and will exacerbate already serious flooding problems.”

Like Gov. Byrne’s moratorium in Executive Order 71, Gov. Kean’s Executive Order 176 declared that “no State Department agency shall take final action on any application for development within freshwater wetlands for 18 months from the date of the order … or until the enactment of state legislation that provides protection of freshwater wetlands, whichever is earlier.”

As before, state lawmakers, mayors and developers groused angrily but the result was the same: Within a few months, the state enacted the Freshwater Wetlands Protection Act of 1988, which remains part of an enduring legacy of bipartisan support for environmental protection.
But neither of these moratoria was tested and declared constitutional by a high or indeed any court. Thus, the question remained unanswered: Will a moratorium pass the test?

In 2002, definitive legal support for the issuance of development moratoria of limited duration emerged from a most unlikely source, the United States Supreme Court. In Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Commission, the court in a 6-3 decision upheld a 32-month moratorium, later extended for roughly three additional years, stopping all development surrounding Lake Tahoe — praised by Mark Twain for “the clarity of its waters as not merely transparent, but dazzlingly, brilliantly so” — until an interstate planning commission had completed a comprehensive plan, balancing development interests with the overriding objective of preventing pollution of Lake Tahoe.

So the political and judicial precedent is clear, albeit perhaps not as clear as the crystalline waters of Lake Tahoe: Gov. Murphy has the constitutional authority to order a moratorium on the development of the 12 gas pipeline and power plants projects threatening the state with a dramatic and irreversible increase in greenhouse gases. As the Empower NJ report summarizes the harmful impacts: “If these 12 gas-based projects are put into operation … they would increase CO2 emissions by approximately 32 million metric tons per year. To put this in context New Jersey’s total GHG CO2 emissions from all sources in 2015 were about 101 million metric tons. These new projects would increase total GHG emissions by approximately 30 percent, in clear conflict with the Paris Climate Accord, NJ’s 2007 Global Warming Response and Air Pollution Control Acts, and the Murphy Administration’s own stated policy in EO 28.”

To be sure, a moratorium would not be a costless action. The 12 natural gas projects have invested heavily in reliance on the permits already granted to them by the Federal Energy Regulatory Commission (FERC) or by the Board of Public Utilities (BPU) or the Department of Environmental Protection. Some projects may be able to mount a persuasive case for compensation. But the costs of not acting decisively are far greater, if less readily quantified.

Gov. Murphy, it’s time to order that moratorium while we still have a chance, however slender, to mitigate at least the worst impacts of climate change.