Much has happened since I wrote you last. I have been heartened to see New Jersey pass the Clean Energy Act of 2018 and commit to a 2019 Energy Master Plan that would lay out a pathway to 100% clean energy for New Jersey by 2050. We have also seen the Attorney General’s office move on recovering damages from six toxic chemical spills, including one we have been working on in Newark for several years.
EELC has recently taken on energy conservation work, on behalf of the National Resources Defense Council and the Environmental Defense Fund that supports the “decoupling” of utility sales from revenues. Utilities have been disincentivized from aggressively pursuing energy conservation programs because their profits drop as they sell less energy. Called GEM by PSE&G, or the Green Enabling Mechanism, decoupling would allow PSE&G to charge slightly higher rates as utility sales fall, while at the same time protecting customers from seeing higher bills.
The NRDC and EDF intervened in PSE&G’s petition to New Jersey’s Board of Public Utilities to allow the electric utility to recover fixed costs even as their customers become more energy efficient, or even produce their own energy. In New Jersey, for example, 93,000 customers are now providing energy to the grid, mainly through rooftop solar, and these small-scale solar facilities produced about 2.3% of the state’s retail sales in 2017. Decoupling prevents the utility from having to accept a significant financial penalty for allowing such distributed generation of electricity. Decoupling is currently used in sixteen states that are serving 43 million electric customers. Nationwide, 105 electric and gas utilities are decoupled.
We continue our clean energy work in front of the BPU, work that in the past has led to the introduction of smart metering technology in New Jersey and to funds set aside for energy efficiency improvements after Superstorm Sandy.
Our client Food and Water Watch likes to say that New Jersey is a spaghetti bowl of pipelines with 1500 miles of already existing pipelines crisscrossing the state. In spite of this large existing network, six pipelines are currently being proposed to pass through the state. Energy companies are racing to profit from fracked gas from the Marcellus Shale in the Appalachians.
These proposed pipelines raise Fifth Amendment private property rights questions. “Public purpose” must be proven before private land can be seized through eminent domain for the construction of a privately-owned pipeline. In July, EELC submitted comments to FERC on its gas pipeline certificate policy which was last updated in 1999. We urged FERC to revamp its processes for determining whether a pipeline is truly needed, to reject contracts with a pipeline company’s own affiliates as proof of market demand, and to only grant pipelines the authority to seize land through eminent domain after a pipeline has received all of its required permits. FERC agreed that its permitting process is flawed and has undertaken a review.
In August, in contradiction to its own recognized need to review the process that determines public need for a project, FERC voted 3-2 to reject requests by our clients the New Jersey Conservation Foundation and Stony Brook Millstone Watershed for a rehearing of the PennEast pipeline and motions to stay the project. FERC Commissioner Richard Glick’s dissent made clear that the need for PennEast had not been established, “Today’s order simply is not the product of reasoned decision-making … It does not take much imagination to understand why an affiliate shipper might be interested in contracting with a related pipeline developer for capacity that may not be needed, such as the parent company’s prospect of earning a 14 percent return on equity.”
On other NJ pipeline news, EELC is representing NY/NJ Baykeeper, Food and Water Watchand local homeowner associations to oppose the NESE pipeline which would convey an additional 400 million cubic feet/day of fracked gas from Pennsylvania to Sayreville, New Jersey, and across the Raritan Bay to the Rockaways in Queens. EELC is working closely with residents of Franklin and South Brunswick Townships which oppose NESE because of a nearby proposed compressor station.
In April, New York State denied permits for the NESE pipeline, and in September the NJDEP cited deficiencies in the NESE application. The company continues to provide revised plans to the NJDEP to try to overcome these deficiencies. Barbara Cuthbert, a member of the Franklin Township Taskforce on Compressor Station 206 and NESE, pointed out that “Transco/Williams is a very competent company … When they’re going up against all of these state and federal regulations, they know all of these ways to maneuver out of what we know to be damaging to the environment.”
The next major step on NESE is the Final Environmental Impact Statement which, if issued, will be drafted by the Federal Regulatory Commission (FERC). Its possible release has been pushed back from this fall to early next year. EELC commissioned an expert to study water quality issues. The expert identified major failures in Transco/Williams’ plans. For example, NESE will impermissibly destroy valuable wetlands, create flooding hazards, and damage the habitat of Raritan Bay.
In early August, EELC joined Newark’s Ironbound community as NJ Attorney General Gurbir Grewal, NJDEP Commissioner Catherine McCabe and NJ Lieutenant Governor Sheila Oliver
announced the filing of six lawsuits for cost recovery and natural resources damages resulting from toxic chemical spills throughout the state. One of those sites is the Ironbound’s Manufacturers Place neighborhood whose residents have been exposed to contaminated groundwater and toxic vapors from the former Ronson Metals Corporation.
This is a shocking situation which began after the DEP required Ronson Metal Corps, a manufacturer of cigarette lighters, to remediate their closed facility to industrial clean-up standards and place a deed restriction on the property. Tragically, the property was sold to a developer who built nineteen homes in 2002 and promptly disappeared.
In 2012, when the DEP returned for a routine check on the property, which should have been repurposed as a parking lot or some other industrial use, they found the homes built on the contaminated site. Indoor air quality testing revealed unacceptable levels of tri-chloroethane (TCE) a volatile industrial solvent within the living spaces of fifteen homes.
Many residents are at risk for health impacts related to their exposure. TCE is a likely carcinogen and can cause harmful effects on the nervous system, liver, respiratory system, kidneys, blood, immune system and heart as well as reproductive effects. Soil vapor extraction units were installed to remove the toxic air from beneath the affected homes and to vent it into the atmosphere, much like radon systems.
This summer EELC fought on behalf the American Littoral Society and the New Jersey Conservation Foundation to defend against an unprecedented transfer of 1.37 acres of public beachfront property in Seaside Heights worth $2 million to a private developer. This property had been preserved through the state’s Green Acres program, but a private developer received approval to build an amusement park on the land.
Green Acres publicly acquired lands can only be developed if the land is swapped for another parcel of equal usefulness and recreational or economic value. In this case, the town accepted in trade an antique merry-go-round, a small parking lot, and nearby undevelopable wetlands worth less than $300k in trade. This sets a terrible precedent and was important to challenge in the Appellate Division. The Court agreed with EELC that the agencies had failed to set forth findings on the adverse consequences of the trade, as required by the Green Acres regulations.
The Appellate Court stated that it would usually require a remand to correct this error. However, citing “unique circumstances”, the Court concluded that a remand was not warranted in this instance.
While 1.37 acres of public beach parkland has been lost, the Appellate Division opinion serves as an important notice that Green Acres parkland cannot be traded into private ownership for historic objects.
Our Summer Interns
We were fortunate to have two fantastic law students intern with EELC over the summer. Ollia Pappas is a joint degree student focusing on environmental law at the Yale School of Forestry & Environmental Studies and the Elisabeth Haub School of Law at Pace University. Ollia assisted tremendously with EELC’s clean energy caseload. Ruth Sheridan is combining her artistic background from The Cooper Union with environmental law from EELC and spent most of her summer focusing on pipeline litigation work. Both were a joy to have at the office and we wish them a successful year in law school.
For more information on all of our legal efforts on behalf of the environmental community, please visit us at our website, and on Facebook and Twitter.