A New Jersey commission voted down a resolution to prevent the Cape Atlantic Reliability pipeline from proceeding, while also rejecting calls from environmental groups to bar the project's developer from filing a new application.
The Jan. 10 vote still leaves a question mark over the future of South Jersey Gas Co.'s long-delayed project to deliver gas through the Garden State's Pinelands National Reserve to coastal communities. The head of the New Jersey Pinelands Commission acknowledged that the company could reapply to complete the project in any case but noted that the operator would have to start from square one.
The proposed 22-mile pipeline has been wrapped up in court challenges for years, culminating in a New Jersey Superior Court judge's decision in June 2019 to remand the matter to the Pinelands Commission. The judge delivered the decision after a group of investors scrapped plans to convert the B.L. England coal-and-oil plant in Cape May County, N.J., into a gas-fired facility.
The plant would have been the Cape Atlantic Reliability line's primary off-taker. The state argued that the conversion project's cancellation called into question the Pineland Commission's February 2017 approval of the planned pipeline, which was mostly premised on providing service to the gas-fired plant.
The resolution before the commission Jan. 10 said the Cape Atlantic Reliability pipeline could not proceed because the B.L. England development meant the project had significantly changed since receiving approval. Therefore, the company's application no longer addressed the Pinelands Comprehensive Management Plan, or CMP.
Despite the resolution's failure, Pinelands Commission Executive Director Nancy Wittenberg said the path forward for South Jersey Gas is unchanged. The company must file a new application with the commission, or amend its current application, and start from scratch if it intends to pursue the pipeline project. Wittenburg added that she had already spelled that out in a March 2019 letter to South Jersey Gas.
"Their application was dependent on B.L. England. Without B.L. England, they have nothing. They would have to come back in," Wittenburg said, adding the caveat that her stance is the committee process, not a legal opinion.
The utility's parent company, South Jersey Industries Inc., did not immediately return a request for comment on Wittenberg's opinion or its plans for Cape Atlantic Reliability. South Jersey Gas earlier asked the court to review the commission's decision itself, rather than remand the matter to the body.
The commission came under fire from members of the New Jersey Sierra Club and the Pinelands Preservation Alliance, who wanted commissioners to adopt a resolution that explicitly rescinded their earlier project approval. That would have prevented South Jersey Gas from reapplying and undermined the New Jersey Board of Public Utilities' approval, which was built on the commission's approval, the Sierra Club said.
Commissioner Jordan Howell said language that specifically retracted an earlier commission resolution would likely create a "legal nightmare."
"The language in the resolution reflects what is currently feasible for us to say and do as the CMP is written, not as we might wish it were written, or perhaps should be written," Howell said. "The public needs to keep in mind that the commission cannot act outside of its own rules, even as weird as the process for this particular application might have been."
Still, Howell had supported the resolution, saying that a "yes" vote would fulfill the expectation of the judge who remanded the matter to them that they take some kind of action. Since the commission did not pass the resolution, its nearly 30 minutes of discussion on the topic will serve as the record for any future litigation, according to staff.
Five of the nine commissioners who cast votes rejected the resolution, with some saying it would set a harmful precedent of passing a resolution to overrule an earlier resolution. The resolution needed eight votes to pass. The 15-member commission has several vacancies and some members recused themselves from the vote.
"The nightmare continues at the Pinelands," Jeff Tittel, director of the New Jersey Sierra Club, said in a statement. "By voting down even this weak resolution, it blocks the commission from taking final action on the SJ Gas pipeline ... This means the application for the SJ Gas Pipeline still stands."