Court Decisions Give Enviros Hope that Natural Gas Pipelines Can Be Further Delayed or Halted in New Jersey

Nine pipeline projects are pending in Garden State, but clean-energy advocates say recent court rulings elsewhere in the U.S. strengthen the case against them
Credit: NJTV News
Natural gas pipeline under construction

For the past few years, opponents waged a mostly unsuccessful fight in the courts to block new pipeline projects across New Jersey and elsewhere proposed in the wake of a boom in cheap, new natural gas supplies.

In the past month, however, there has been a reversal of sorts. Environmentalists and local communities won victories against three major fossil fuel pipeline projects, suggesting the once rapid growth in natural gas infrastructure may slow as states shift to cleaner sources of energy and as opponents become more adept at using regulatory and legal tools to delay, and, in some cases, kill pipelines.

Earlier this month, Duke Energy and Dominion Energy decided to abandon the 600-mile Atlantic Coast pipeline project, which would have transported gas to customers in Virginia and North Carolina. The project, proposed in 2014, was canceled after the two utilities said delays in permitting and the courts have nearly doubled its cost to $8 billion.

The announcement came despite the two energy companies winning a victory in the U.S. Supreme Court in June, which upheld a permit they obtained from the U.S. Forest Service involving the project crossing the Appalachian Trail and other environmentally sensitive land.

“It really highlights just how many hurdles you have to clear before you even get to put a shovel in the ground,’’ said Paul Patterson, an energy analyst at Glenrock Associates in New York.  There is so much red tape associated with these projects that they can be tied up for years, he said.

The announcement was followed Monday by a ruling from a federal judge that ordered the 1,172-mile Dakota Access crude oil pipeline from North Dakota to Illinois shut down and fuel drained from it, handing a victory to the Standing Rock Sioux Tribes, which challenged the Trump administration’s approval of the project.

Major ruling against federal agency

Perhaps, the most significant win occurred last month. The U.S. Court of Appeals for the D.C. Circuit said a routine practice by the Federal Energy Regulatory Commission was illegal. The agency had been indefinitely extending its statutory deadline to decide rehearing requests by those who want to challenge its approvals of major energy infrastructure projects.

The practice, dubbed “tolling orders,’’ had the effect of placing challengers in legal limbo, allowing the projects to move forward with construction, sometimes until completion. New Jersey Attorney General Gurbir Grewal had joined 10 other states in challenging the practice.

“The end result of the tolling orders has been by the time we get our day in court, it is simply too late, the damage is done and there is no meaningful remedy,’’ said Maya van Rossum, the Delaware Riverkeeper.

The implication of these decisions for the nine pending gas pipeline projects in New Jersey is uncertain, but clean-energy advocates argue they likely will bolster their case when they try to block new fossil fuel projects.

“There have been recent developments and a flurry of decrees that seem to indicate a real shift nationally as how the courts view these cases,’’ said Tom Gilbert, campaign director for ReThink Energy and the New Jersey Conservation Foundation, a group that has been fighting the PennEast Pipeline, a 120-mile project beginning in Pennsylvania and ending in Mercer County for the past five years.

Credit: New Jersey Sierra Club
Streams and wetlands can be damaged by horizontal directional drilling.

In part, those developments have included a shift in state policies, such as in New Jersey and New York, that aim to phase out fossil fuels by mid-century and transition to cleaner sources of energy. But others said opponents also have become more sophisticated about navigating the complicated regulatory and legal system erected around major infrastructure projects.

“There is a tremendous amount of due process involved with these projects,’’ Patterson said. “The environmental groups have become very adept at exploiting this process — and it is not just environmentalists, but landowners, communities and others.’’

Others say years of abuse by regulatory agencies like FERC that have neglected appeals and allowed projects to go on have begun to be recognized by the courts. “It is no longer appropriate to give these agencies the broad deference to their expertise that has been recognized in the past,’’ said van Rossum.

Aiming to slow down projects

“If we can slow down the pipeline and look for choke points, we can win,’’ said Jeff Tittel, director of the New Jersey Sierra Club, an organization that has been a party to many of the lawsuits filed against pipeline projects. He called the tolling decision one of the biggest victories in years involving pipeline projects.

The same cycle of agencies allowing projects to move forward even while still being contested is occurring in New Jersey with the construction of a 30-mile gas pipeline through parts of the Pinelands by New Jersey Natural Gas, according to foes of the project.

Credit: (AP Photo/Wayne Parry)
Opponents of a natural gas pipeline to run through the Pinelands protested during a public hearing in Pemberton, Jan. 24, 2017.

The Southern Reliability Line project, still under review by a state appeals court, is roughly two-thirds done, but the New Jersey Department of Environmental Protection on Wednesday ordered the utility to stop drilling after wetlands and streams were polluted and drilling had cracked a foundation of a nearby home.

Kevin Roberts, a spokesman for New Jersey Natural Gas, said the company had already suspended the drilling after the incident and hired an independent consultant to review other drilling under streams and wetlands that remains to be done at six locations. In the meantime, the company is planning to continue digging open trenches for other parts of the pipeline, he said. The utility has completed 21 miles of the 30-mile pipeline.

Advocates like Tittel say this case underscores the need for Gov. Phil Murphy to issue a moratorium on new fossil fuel projects, a tactic his administration has resisted.

Natural gas advocates argue that it remains a bridge to the future as envisioned by the state’s energy master plan. The plan proposes natural gas playing a role in achieving New Jersey’s clean-energy goals.

Natural gas not ‘going away’

“Natural gas is going to be here for a long time because when we have lots of offshore wind and solar, we are still going to need gas for reliability,’’ said Dennis Hart, executive director of the Chemistry Council of New Jersey. His members rely on natural gas as a key feedstock in the production of many products.

“I don’t see natural gas going away,’’ Hart said. “It’s just too critical in heating homes and businesses and producing electricity.’’ About 80% of homes in the state rely on natural gas to heat homes in the winter, and 40% of the electricity used here is produced by gas-fired power plants, he said.

Tom Churchelow, president of the New Jersey Utilities Association, agreed. “When it comes to natural gas, we want it to offset the cost of shifting to renewable energy and to maintain reliability of the system,’’ he said.

But Gilbert of ReThink Energy and the New Jersey Conservation Foundation disputed the gas plants are needed for reliability. There is increasing recognition that the state can’t afford to build out its gas infrastructure, he said. “The narrative has been that natural gas is a bridge to the future, but it is really a bridge to nowhere,’’ Gilbert said.