Citing violations of two key federal laws, New Jersey conservation groups formally asked the D.C. Circuit Court of Appeals, this week, to throw out the Federal Energy Regulatory Commission’s issuance of a certificate for the proposed PennEast pipeline. FERC rejected the groups’ request to reconsider its decision to issue that certificate after the close of business on Friday, August 10 — the latest in a series of decisions that ignored evidence the project isn’t needed and poses significant threats to residents, preserved open spaces, and water supplies.
In the appeal, New Jersey Conservation Foundation (NJ Conservation) and The Watershed Institute say the certificate of approval that FERC gave to PennEast violates two key federal laws: the Natural Gas Act and the National Environmental Policy Act (NEPA).
The organizations assert that FERC’s certificate for PennEast:
- violates the Natural Gas Act because it is not based on any evidence — much less substantial evidence — showing that the project is required by the law’s “public convenience and necessity” clause, or that it is in the public use; and
- relies on a deficient NEPA process, failing to assess or disclose environmental impacts from the proposed project.
Attorneys at Eastern Environmental Law Center (EELC) and Columbia Environmental Law Clinic, who jointly represent NJ Conservation and The Watershed Institute, filed the petition for court review of the agency’s decision.
The New Jersey Division of Rate Counsel, the state’s consumer watchdog, also filed a petition for the court to review FERC’s certificate for PennEast as well as its rehearing denial.
Numerous conservation groups, affected landowners, elected officials, counties, towns, the Rate Counsel, and the New Jersey Department of Environmental Protection (NJDEP) had sought rehearingon multiple grounds, including that the pipeline is not needed to deliver gas to the region and would not reduce gas prices, ensure reliability, or provide “flexibility,” nor is the project warranted for any other vague reason claimed by PennEast.
“We have a strong case because FERC’s actions don’t just put private profits ahead of the public interest, they also break the law.” said Tom Gilbert, campaign director, NJ Conservation.
PennEast awaits the court’s decision as to whether it can use eminent domain to seize nearly 150 properties in Hunterdon and Mercer counties, and an additional 50 in Pennsylvania. The federal district court judge has the power to protect those landowners from PennEast’s bid to use its conditional approval to permanently seize lands.
Far from benefiting the public, the Rate Counsel found that PennEast would cause public harm. Expert analysis from independent energy firm Skipping Stone also conclusively demonstrates that PennEast is not needed for reliability during cold weather — not even on the coldest day of the year — and that New Jersey’s existing 1,500-mile pipeline network is more than sufficient to meet demand.
“FERC’s disregard for the facts and the law in its review of this project stand out as blatantly irresponsible decision making,” said Jennifer Danis, senior staff attorney, EELC. “It should not withstand judicial scrutiny.”
FERC’s decision not to rehear the PennEast issue came on a 3-2 ruling to which one commissioner, Richard Glick, wrote a scathing dissent.
“The damage PennEast would do to waterways, wetlands, and other environmental resources can’t be undone,” said Jim Waltman, Watershed Institute executive director. “It’s time for the courts to do what FERC wouldn’t do to protect our environment.”
FERC’s rehearing response reiterated that its certificate for PennEast is conditional, and confirmed the conservation groups’ position that no tree-clearing can happen unless and until PennEast has obtained all permits. PennEast is still facing review by the NJDEP and the Delaware River Basin Commission.