DEIS Files available

The FERC site has been down since Friday night, and people are freaking out (and rightfully so!) that this is eating into the 45 day comment period.  I was lucky that I got one of the FERC CD-ROMs with the DEIS files. Those files have been uploaded to our sister site http://pipeinfo.org on the front page.

If you have any issues downloading any of the files or think anything is missing, please let me know!

http://pipeinfo.org

 

DEIS: FERC’s Admissions that the DEIS stinks

Below is the FERC staff’s comments about the DEIS not cutting it.  These are areas where FERC wants an answer back from PennEast before the DEIS comment period is finished.

To me – here FERC is admitting that the DEIS is incomplete, and they are violating the public’s ability to comment within the comment period on these developments.  PennEast could in fact offer answers to these questions on day 45 – giving the public ZERO DAYS to comment.

FERC Recommendations

These come from FERC’s section on “Conclusions and Recommendations”, and is in the area where they are also recommending conditions on the final order.  These though are specifically the “within the DEIS comment period” asks.

Point 15: Prior to the end of the draft EIS comment period, PennEast shall file with the Secretary the results of its ongoing evaluation of potential presence of working and abandoned mines near the proposed crossing of the Susquehanna River. The evaluation shall include documentation of coordination with the Pennsylvania Bureau of Abandoned Mine Reclamation, and shall identify any specific design or mitigation measures. (Section 4.1.5.4)

Point 19: Prior to the end of the draft EIS comment period, PennEast shall file with the Secretary documentation to identify any special construction procedures that will be implemented to minimize impacts on C-1 streams. PennEast shall provide documentation of consultation with appropriate federal and state agencies regarding C-1 streams, including identification of any agency recommendations and PennEast’s responses. (Section 4.3.2.2)

Point 20: Prior to the end of the draft EIS comment period, PennEast shall file with the Secretary proposed crossing methods for all waterbodies, including those with contaminated sediments. The proposed method shall ensure that the potential suspension of sediments during construction shall be avoided or minimized to the greatest extent possible so as not to change bioavailability of any potential contaminants present. PennEast shall include documentation of consultation with pertinent agencies and identify any recommended minimization measures. (Section 4.3.2.2)

Point 26: Prior to the end of the draft EIS comment period, PennEast shall file with the Secretary the special construction methods that it will implement during construction in extremely saturated wetlands. If additional workspace is required at the saturated wetlands along the pipeline alignment, PennEast shall identify these in a table and provide site-specific justification for the additional workspace. (Section 4.4.2)

Point 32: Prior to the end of the draft EIS comment period, PennEast shall file with the Secretary the measures or changes that it will implement to the Project’s design in order to ensure that the Project is consistent with the FWS requirement to avoid all bat hibernacula by at least 0.25 mile. PennEast shall also provide documentation of the consultation with the FWS on this restriction. (Section 4.6.1.1)

Point 42: Prior to the end of the draft EIS comment period, PennEast shall file with the Secretary any route adjustments, workspace modifications, or mitigation measures developed through PennEast’s ongoing consultations with landowners regarding the following planned and/or pending projects:

  1. a)  Fields at Trio Farms Subdivision;
  2. b)  Huntington Knolls, LLC Housing Development; and
  3. c)  Hopewell Township Emergency Services Facility.

PennEast shall provide documentation of correspondence with these landowners. PennEast shall either incorporate these deviations or a route that avoids the resources of concern, or otherwise explain how potential impacts on resources have been effectively avoided, minimized, or mitigated. (Section 4.7.3.2)

Point 43: Prior to the end of the draft EIS comment period, PennEast shall file with the Secretary an update of the status of the development of the site-specific crossing plans for each of the recreation and special interest areas listed as crossed by the Project or otherwise affected in appendix G-14. The site-specific crossing plans shall include, as applicable:

  1. a)  site-specific timing restrictions;
  2. b)  proposed closure details and notifications (e.g., reroutes, signage, public notices);
  3. c)  specific safety measures; and/or
  4. d)  other mitigation to be implemented to minimize effects on the recreation areas and their users during construction and operation of the Project. (Section 4.7.5)

Point 45: Prior to the end of the draft EIS comment period, PennEast shall file with the Secretary documentation of USDA approval for construction and operation of the Project within any and all parcels affected that have active USDA conservation easements. Alternatively, PennEast shall identify any Project changes made to avoid parcels with USDA conservation easements, and include documentation of consultation with the USDA that confirms avoidance of USDA conservation easements. (Section 4.7.5.4)

Point 53: Prior to the end of the draft EIS comment period, PennEast shall file with the Secretary proposed mitigation measures to minimize noise levels associated with emergency or maintenance MLV blowdown events. Mitigation measures may include but not be limited to use of a silencer, restricting maintenance blowdowns to daytime hours only, and/or notifying landowners in the immediate area of the planned blowdown event. (Section 4.10.2.3)

Point 54: Prior to the end of the draft EIS comment period, PennEast shall file with the Secretary a complete noise analysis of the Project metering (interconnect) stations using the best available typical design or vendor specification with regards to impacts on the closest identified residences/NSA as shown in table 4.10.2-10. (Section 4.10.2.3)

 

 

The PennEast DEIS is out

The Draft Environmental Impact Statement is out.  It officially hit today from FERC.  Some quick facts:

  • We have until September 5, 2016 to comment.  That’s our deadline (45 days), in the height of vacation season.
  • You don’t have to be an intervenor to comment.  ANYONE can comment – and we want EVERYONE to comment.
  • Intervenors do carry more weight, and their protests must be answered in the final FERC order.
  • You can still Intervene!  We’ll have instructions up shortly to intervene-out-0f-time.

The full DEIS is available here:

http://www.ferc.gov/industries/gas/enviro/eis/2016/07-22-16-eis.asp

The plan is to get 50,000 (!) or more comments out there.  So start alerting your friends, your neighbors, your distant acquaintances, everyone you can.  Alert any intervenors you know, or people who should intervene.  CAPS, New Jersey Conservation Foundation, The Delaware Riverkeeper Network, Sierra Club, and others are all banding together to ensure there are sufficient in-person workshops, webinars, and anything else we can think of to get the issues with this DEIS thoroughly and completely documented.  We have 45 days, and we need to make the most of it.

Because this DEIS is a travesty.  In section after section FERC and their contractors state that they have insufficient information upon which to make a decision, and then they conclude each section that they have determined there is no significant impact to the environment.

We have no data on wells or springs in NJ or PA, and hope we’ll get some eventually.  But we’ve determined there’s no significant impact to wells or springs.

We have insufficient data on vernal pools, we’ll check that later.  But we’re confident there’s no real impact to them, and we’ll mitigate it somehow.

We have no idea about historical artifacts, properties, or areas within the impact area.  But we’re confident we’ll mitigate anything we find eventually.  Some day (as an aside: how do you mitigate impacts to unique historical areas?).

Their No Action Alternative is four paragraphs long.  Yes, four paragraphs.  They cite no sources or data, other than the list of shippers.  They point to that list of shippers and say “These shippers signed contracts. There fore, there can be no No Action Alternative”.  There is no mention of 7o% of landowners in NJ denying access.  No mention of affiliate transactions between companies like NJ Natural Gas buying the gas from New Jersey Resources, or PSEG Power buying from PSEG, etc.  They write off renewables and other areas without a single citation or data point.

And there’s no mention of storage, dual-fuel, or other alternatives.

This is a target-rich environment folks.  Let’s have at it.  More to come once we digest it in detail.

The slippery slope just turned into a slippery cliff

Last night I had the pleasure to be on PANJ Radio live with Jeff Titel of NJ Sierra Club.  The topic was, of course, the PennEast pipeline.  We did the show to help educate Lambertville residents on what’s going on with the pipeline, and get them pumped up about increasing Lambertville City’s opposition to PennEast.  I’ll post a recording of the session once it’s available.

In an attempt to add balance to the discussion, PANJ Program Director Rob Bell contacted PennEast and invited them to join the show.  As usual, PennEast declined the invite .  Not surprising, really, since as we all know PennEast has avoided all meetings with the public since the debacles at the Landowner-invite events in early 2015.  PennEast clearly does not want to be in a position to have someone actually question their claims live and in person.

PennEast spokes person Patricia Kornick did send a statement in though.  Most of it was the same old tripe, that can be summed up here.

1) Usage of home heat and electricity consumption is increasing, so we need PennEast

False: all projections, including those by eia.gov, show NJ energy demand to be flat out to 2040.

2) 90% of the capacity on PennEast is sold, so there must be a need for it!  

This is one of PennEast’s more dangerous arguments, where they are claiming there is a market need for this project because they’ve sold most of the capacity.

But what they don’t like to admit is this:

  • PennEast is a shell company owned by South Jersey Industries, New Jersey Resources, PSEG, UGI, Elizabethtown Gas’ parent company, and Spectra Energy.  And the “customers” on the pipeline are: South Jersey Industries, New Jersey Resources, PSEG, UGI, Elizabethtown Gas, and Spectra Energy.  Yes, this is classic “self-dealing”, not a real market.
  • The PennEast “customers” can only afford to buy natural gas by stopping buying gas from other pipelines.  Yeah, that’s right – with no increasing demand and all the existing pipelines in place, they can only accommodate PennEast by halting their existing contracts.  There’s no “need” here, only transferring money from other companies to themselves.

This graphic might help:

PennEastOwners

There you go – the PennEast owners – SJI, NJR, PSEG, UGI, AGL/Southern Company, and Spectra Energy.  And the PennEast “customers” – South Jersey Gas, New Jersey Natural Gas, PSEG Power, UGI Energy Services, Elizabethtown Gas (owned by AGL), Texas Eastern pipeline (owned by Spectra).

3) PennEast will reduce energy costs!

False.  Last year Kornick was making these assertions, and a journalist asked her to provide her with the cost projections PennEast had made to back up that claim.  Kornick sheepishly replied that no such projections exist.  This is a baseless assertion with no data or analysis to back it up.

4) PennEast will increase reliability

When numerous parties began shooting holes in PennEast’s “increasing demand” and “lower prices” story, they changed direction and said that it was really all about “reliability” and “reducing constraints in the system”.  They pointed to the bogus Concentric study they commissioned showing a mythical $890 million the region would have saved if PennEast went back in time and existed during the polar vortex winter of 2014.

Here’s the reality: there are no such constraints in NJ.  As a state we are awash in Natural Gas and simply don’t need any more.  And you don’t have to  just take my word for it.  PennEast’s own owners same the same thing as well.

Every year, SJI’s annual report and SEC 10K filing gives a detailed breakdown of their gas supplies and system reliability.  In 2015 their peak load was just over 500 million cubic feet in a single day.  But their contracted supply allows for 630 million cubic feet.  So they had a 130 million cubic foot margin on their worst day.

They have multiple suppliers and options, including multiple pipeline suppliers and alternate storage solutions, including their own LNG storage and vaporization facilities.

Their 10K indicates that they have more than adequate supply and diversification in their system.

The same story is repeated in prior years, including the polar vortex winter.

NJR tells a similar story in their 10K filing, concluding:

In fiscal 2015, NJNG purchased natural gas from approximately 86 suppliers under contracts ranging from one day to one year and purchased over 10 percent of its natural gas from two suppliers. NJNG believes the loss of these suppliers would not have a material adverse impact on its results of operations, financial position or cash flows as an adequate number of alternative suppliers exist. NJNG believes that its supply strategy should adequately meet its expected firm load over the next several years.

This story is repeated over and over again in the other partner’s filings as well.  There is no reliability issue for natural gas in NJ.

 

5) PennEast is the first pipeline to pipe Marcellus gas into NJ

I saved the best for last.  This whopper is a new one that Kornick is trying out for the first time.  And it’s a doozy.  Here’s what she says in its entirety:

The PennEast Pipeline will be the first system to bring natural gas directly into New Jersey from a local, abundant natural gas supply.

It is mind boggling that PennEast would even go here.  In fact there are many pipelines coming out of the Marcellus region into our area.  EIA.GOV has the details:

http://www.eia.gov/todayinenergy/detail.cfm?id=24732

Part-PennEast owner PSE&G also disagrees with Kornick on this – right within PennEast’s own application to FERC!  In it, they state….

“PSEG, as the largest utility in New Jersey and one of the largest buyers of Marcellus Shale supplies in the northeast…”

In their SEC filings, PSEG goes on to indicate that they already get the majority of their natural gas today from the Marcellus region – all without PennEast not being in existence.

Conclusion

So PennEast is continuing their campaign of disseminating misinformation throughout the region.  No surprise there.  But what is surprising to me is that they continue to stretch the truth a little more each time.

For those interested, here’s Kornick’s statement in full:

 

 

Hello, Mr. Bell.  I appreciate your contacting the PennEast Pipeline
Project.  I am the project spokesperson for PennEast.

I am providing some key information to supplement information from the

web site.  The information should help in moderating an informative,
balanced segment:

* In addition to millions of local families and businesses relying on

the electricity produced by natural gas, approximately 75 percent of New
Jersey homes and more than 50 percent of Pennsylvania homes rely on
natural gas for heat.  Whether for home heat, or the electricity that
powers the lights, air conditioners, televisions and computers and charges
phones, that use is increasing.

* PennEast’s capacity is under long-term contracts from local public

utilities and electric generation companies that recognize the need for a
local, abundant and affordable energy source.  With approximately 90
percent of the pipeline fully committed, the local market demand for the
PennEast Pipeline Project is clear.


* Rather than relying on natural gas being transported from

Pennsylvania, down to the Gulf Coast and then returning to serve area
energy consumers, the PennEast Pipeline will be the first system to bring
natural gas directly into New Jersey from a local, abundant natural gas
supply.

* As such, the PennEast Pipeline Project will reduce energy costs to

area natural gas and electricity consumers.  It also will increase
reliability by alleviating constraints on the existing pipeline system,
which are most evident during storms and extreme weather conditions.

Based on input from landowners, public officials and others, PennEast
has reviewed more than 100 route options.  Where safely and logistically
feasible, PennEast has implemented dozens of modifications as a result of
such feedback. *


As evidenced by the approximately 2.6 million miles of pipelines across

the United States, including in New Jersey, transmission pipelines exist
harmoniously across rural and urban communities alike. Following pipeline
construction, the property is restored. Landowners may continue to use
their property as they had prior to construction, with the exception of
building directly atop the pipeline or planting trees. Recreational and
farming http://penneastpipeline.com/working-with-agriculture/ activities
also may continue. (PennEast is continuing to work with landowners to
ensure their property-specific preferences are reflected in their easement
agreements.) *


PennEast recognizes that not everyone understands or appreciates the

environmental, economic or practical aspects of building natural gas energy
infrastructure, such as the PennEast Pipeline Project.  Yet, clean-burning
natural gas literally fuels the quality of life for most Americans —
including those using their mobile phones and computers to oppose natural
gas development. *


While there are vocal pockets of people opposed to natural gas

development, the majority of area families and businesses welcome the
reduced utility bills, increased reliability and the other practical,
environmental and economic benefits that PennEast Pipeline will bring to
the region.

In fact, the majority of business and trade organizations within the

region have rendered support for the Project:
http://penneastpipeline.com/supporters. [2].


Additionally, those opposed to natural gas development, and this Project

in particular, are going to great lengths to try to stop the Project,
including filing lawsuits:
http://penneastpipeline.com/new-jersey-superior-court-sides-penneast-dism
isses-baseless-trespassing-lawsuit/ or commissioning “studies” (
http://penneastpipeline.com/wp-content/uploads/2015/03/Concentric-respons
e-to-NJCF.pdf) and espousing the findings as fact.

 

PennEast Timelines

It’s hard to believe 2016 is more than halfway gone.  And along the way we’re starting to come up on some critical deadlines on PennEast.  The kicker is – we don’t know exactly when those deadlines start!  But some of them have extraordinarily short windows in which people can act.

So to help give people a sense of what we’re dealing with, I’ve put together a visual aid to demonstrate what the timelines look like.  Below is an animated .gif file showing the major FERC milestones coming up for PennEast.

PennEastTimelineAnim

FERC Timelines

As you can see, we don’t know exactly when the DEIS will be issued, but we do know there will be a 45 day comment window.  This window is critical as it forms the basis of any action you want to take against the project in federal court.  That 45 day period forms the only legal record that matters.

So you can see the DEIS could drop today – or we might still have a month or more.  It’s hard to say.  This slides the end of the comment period any where from the beginning of September to near the end of October.

We know the rough size of the DEIS issuance window because FERC has said they will issue the Final EIS (FEIS) in mid-December 2016.  And they will need some time to incorporate the DEIS comments into the FEIS.

However, if the DEIS comment window were to blow up with 10,000 comments – well, we’ll have to see what that does to FERC timelines.

After the FERC FEIS issuance, there’s a 30 day clock that starts when people can make motions against it.  Which I suspect they will.

After that, there is a 60 day window in which FERC can choose to release its final order in the matter.  That order will be: Reject, or Grant.

If that order is given as Grant, then PennEast will have federal eminent domain authority.  At that point in time PennEast will likely go for an injunction to get survey access on all properties that have denied access up to that point in time.

Below that we show some of the other permits involved.  We know some of them have already been applied for in 2016, such as PADEP and US Army Corp of Engineers (USACE).  Others have not yet been begun, and might not be until next year, including the NJDEP permits and DRBC permit (to clarify: the DRBC permit has been entered, but I’ve heard will not be actioned until 2017).

So it’s hurry up and wait time people.  But be prepared!  Once the DEIS hits we have a very limited time to get our comments in, and we want everyone to hit this one out of the park.

I am launching my own Strategic Consulting Firm

For 28 years I worked in engineering for various financial services and other firms, and in the normal course of things I might have continued to do that indefinitely.

However, the normal course of things was of course shattered for me by the PennEast pipeline.  For nearly two years a significant chunk of my life has been dedicated in something completely new.   Climbing the massive learning curve that is FERC.  Learning about pipeline economics, engineering, construction, safety, and environmental impacts.  Working with multiple groups to formulate strategies.  And of course meeting and interacting with so many amazing people who have been unceremoniously dumped into the same boat that we call PennEast.

That experience has changed me, and I want to move beyond just engineering into a new role.

And so this Spring, I made a decision to switch gears and pivot to a new direction for my career.  I am proud to announce the formation of Pax Silvis LLC.   Here’s the “About” blurb from the web site:

The latin phrase Pax in silvis means “Peace in the woods”, and is a core sentiment behind Pax Silvis LLC. We leverage our passion and expertise in advanced technology to help protect everyone’s right to be at peace with their natural environment.

We are a boutique consulting firm offering research,  analysis, and strategic decision making  in areas of technology, energy, finance and the environment.

It may seem trite, but I’m quite serious.  My goal with Pax Silvis is to leverage my knowledge and abilities to help make this world a little better than when I entered it, and to specifically help preserve everyone’s right to find equilibrium with the world and with nature.

Right now I’m actively soliciting clients and want to hear your stories.  If you or someone you know is facing a big problem and need fast turn around times for research; some quick analysis of the situation and your options; or you need helping formulating a new strategy, give me a call or shoot me an email.  I’d love to see how I can help (*).

BusinessCard

Find out more at http://paxsilvis.com, or you can email me at mike@paxsilvis.com.

(*) Of course at heart I’ll always be an engineer and computer nerd, so if you need help in those areas I’ll be glad to talk about those things too!

HALT Trespass Suit #3 – Judge dismisses most claims, PennEast’s Kornick Insults everyone

It has been widely reported that the judge has offered a ruling on the HALT PennEast trespass suit.  In the ruling, the judge sided with the defendants (PennEast) and dismissed most of the claims.  Here is one of the stories on this:

http://www.nj.com/somerset/index.ssf/2016/07/judge_dismisses_nj_residents_lawsuit_against_penne.html

And here is PennEast’s press release on the matter:

http://www.businesswire.com/news/home/20160707006462/en/Jersey-State-Superior-Court-Sides-PennEast-Dismisses

I’ve read the court’s findings, and while it is true that the judge has dismissed most of the claims, PennEast’s crowing is entirely incorrect.

Here’s the facts: the judge found that several of the claims were valid claims of trespass, and in one case PennEast flat out admitted to trespass in open court, but tried to wiggle out of it by claiming it was not “intentional” trespass.  The court completely slapped down PennEast’s attempt to redefine the laws for their own purposes.

But despite this, the judge dismissed the claims because her court could not offer the relief that the plaintiffs were asking for.

In incident after incident, the court found there was a sufficient pleading for trespass, but dismissed the claim because they could not give the plaintiffs what they wanted.

What the plaintiffs wanted was the illegally obtained survey data returned, to ensure that it wasn’t given to FERC or other agencies to further the project (e.g. no fruit from the poisoned tree), and to stop PennEast from doing this in the future.

What the court found was that there was no precedent for giving the plaintiffs that.  The court found that only monetary damages could be offered.

And in fact, the finding notes in several cases that the plaintiffs can still seek monetary damages against PennEast.

This is clearly a setback for those of us against PennEast.  But this isn’t the whole story.

The other side is PennEast’s reaction.  Any reasonable corporation would put out a simple press release saying “we thank the court for it’s decision”.  Instead, PennEast’s Patricia Kornick once again puts her foot in it.

In her press release, she says:

Unfortunately, some outside interests are willing to say or do anything to mislead the public. We’re pleased the Court agreed with PennEast and dismissed the claims. It’s unfortunate that HALT has wasted the Court’s time and taxpayer resources with this filing

I’m curious what outside interests Kornick is referring to.  The suit was brought by landowners who claim their land was trespassed on by PennEast and their agents.  The court found the complaints withstood the test of law in several instances.  In what way is this an “outside interest”?  These are landowners directly impacted by the pipeline.  About as far away from “outside’ as you can get.

She goes on to say, “The actions and false claims by HALT leading to the July 7 dismissal…”.

I’m not sure if Ms. Kornick is speaking out of ignorance and didn’t read the ruling, or if she just likes to make things up as she goes along, but the judge did not find these claims to be false.  In fact, she found them to be credible.  She just couldn’t do anything about it.

Kornick goes on to call HALT an “extreme group.  Homeowners, farmers, and property owners protecting their property using entirely legal means is “extreme”?

Kornick then calls the Delaware Riverkeeper’s suit “frivolous”, despite the seriousness of its claims, and does the same for Eastern Environmental Law Center,  New Jersey Conservation Foundation and the Stony Brook-Millstone Watershed Association’s filing to FERC asking for an evidentiary hearing.

These are not the words of a responsible company trying to work with the community. This is an arrogant, out of control company that regularly twists the truth and goes out of its way to antagonize landowners, businesses, and towns that are going to shoulder the full impact of their project with no demonstrated benefit.

The case isn’t over, and I expect there will be more information on this coming soon.

HALT PennEast Trespass Hearing #2

On Friday, June 24th at 9:00am, the second hearing of the trespass case between HALT and PennEast was held in the Somerset County Courthouse. The purpose of this meeting was two-fold:

  1. Hear arguments on PennEast’s Motion to Dismiss
  2. Hear argument’s on HALT’s request for an injunction against PennEast

First up was discussions on PennEast’s motion to dismiss.  The judge indicated she had limited time that morning and had another case scheduled at 10:00am.  PennEast’s lawyer was up first, and his strategy seemed to be pretty clear: take advantage of the time constraints, and keep talking as long as he could to run out the clock!   I don’t know why they would pursue a strategy like that, but it was quite evident and blatant.  Maybe he thought HALT would have no time to present their argument.  Or maybe he just likes to talk.  In any case, he took over 20 minutes to say very little at all.  The gist seemed to be this:

  • The people involved in the trespassing allegations didn’t really mean to trespass.  They were lost, or confused, or very friendly, but they really didn’t mean to do anything wrong.
  • They weren’t really PennEast’s agents!  It’s not our fault!  Blame someone else!
  • Endless repetition on what “intentional” trespass is, and why it’s important (hint: he got the law utterly wrong here).

On the first and last points, it was clear the lawyer was stretching and didn’t have much to stand on.  Trespass law isn’t all that complex.  If you’re on someone’s land and they don’t want you there, you’re trespassing.  It does’t matter if you’re lost, or confused, and it doesn’t matter what you intend to do.  What matters is what you did.

If I just start walking “North” from where I am right now for 10 miles, and had no idea who’s property I was on or where I was really going, I would still be guilty of trespass on any properties with no trespass signs on them.  Which in West Amwell would be a lot:-)

The “intentional” part that PennEast is harping on in the statutes is just wrong.  When the statutes talk about intentionally being on a property, what they mean is that you came to the spot you’re at of your own free will and volition.  You didn’t fall down a long hill and end up there.  You weren’t kidnapped and dropped there by your assailants.  You put your body there on purpose.

We don’t know these guys…

PennEast also tried very hard to distance themselves from the actors involved.   On the trespassing on Copper Hill Preserve, PennEast freely admitted that the alleged trespass happens.  But they claim it wasn’t there problem.  The people there were doing bat surveys for a company, that company is responsible for where they went, and that’s that.

The judge didn’t buy this argument at all.  The bat surveyors were there at PennEast’s behest, are paid for by PennEast, and are clearly their agents.

Another case involved what PennEast alleges was actually an “811 call before you dig” worker doing work on behalf of power and gas companies.  According to PennEast, the guy was there marking out properties as part of “call before you dig”, the work order came from the power and gas company, not PennEast, and thus he’s not PennEast’s agent.

This case is a little trickier and the judge hesitated to go either way.  It is not 100% clear that the call before you dig guy is PennEast’s agent.  Maybe they are, maybe they’re not.  It’s a bit complicated because of how 811 works.  However – the judge did ask who made the 811 call to begin with. Which PennEast responded was them.  The judge then asked if they had a right to call 811 on those particular properties, and that’s where things got a little dicey for PennEast.  The judge wanted to know just how 811 works, and the lawyer didn’t know and tried to pull in NJR’s legal counsel to explain it.  The judge didn’t want any testimony and stopped that, and basically told the lawyer “so you don’t know, so you can’t make the argument”.

The 811 worker portion in general is a bit convoluted and it will be interesting to see how that plays out and the judge rules.  It brings me back to an incident on Alexauken Creek Road, where someone called 811 on the entire block along the route – even though survey permission had been denied.  What’s going on here?  Is PennEast calling 811 even for areas they can’t survey?  Are they doing something funny in general with the companies actually doing the 811 work?  I don’t know, and the law here seems to be unclear.

Would you like to buy some cookies?

PennEast also made a big deal about driveways being exempt from no-trespassing signs. The caselaw they cited seemed to talk about having a door knocker or bell being an invitation to knock, and that therefore UPS people, girl scouts, etc had a right to walk up driveways and make inquiries.

The girl scout angle was mentioned many, many times by PennEast’s lawyer.  He had quite an obsession with the idea.  But I think two factors are not taken into account here:

  1. In many cases our “driveways” are more like country roads.  My driveway is 300′ long and far from the biggest in the area.  Many farms have exceptionally long roads.  I don’t think this girl scout doctrine applies when you can’t even see the front door from the public road.
  2. Patty Cronheim rightfully pointed out after the hearing that these people had refused survey access in writing, and PennEast knew it.  If someone has told you in writing to not come on their property, I don’t think this girl scout doctrine would apply either.  PennEast had been told to keep away, and that should be that.

Yet Another Trespass

Since the 1st hearing, HALT is alleging that another trespassing incident occurred on the property of Sonya Zuccarrelli.  Sonya is a neighbor of mine, and is an ex-DEP employee and knows her stuff.  Sonya has video of the incident, and as a former NJDEP person she knows her land well, especially since there are special features of it that she has to pay attention to.  She shows PennEast trespassing on their land in the end of May.

PennEast denies it, says they were on a utility easement at the time, and they have their own video from the same incident that they claim shows they’re not trespassing.

I helped out with research into Sonya’s deed to look at any potential utility easements, and based on what she describes, on the video, and looking at the utility easements, it sure looks to me like PennEast doesn’t have a leg to stand on.  This wasn’t discussed in too much detail in court, but I think this may be HALT’s strongest trespass incident yet.  And the fact that it  also happened after the case has began will be important.  This is going to be something to watch closely.

Injunction

The other matter before the judge was a possible injunction against PennEast if HALT prevails, and what the “remedy” for that would be.  The remedy is basically what HALT would get if they win.  HALT has been arguing that they are entitled to all of the data PennEast illegally obtained about the property, so we can get it back, and so we can also tell FERC they can’t use any of it.  And this may go beyond just surveying.  PennEast has admitted in multiple venues in writing that they have “notes” on people’s individual properties.  The judge seemed to perk up on hearing that. HALT believes we should have access to those notes since they pertain to our private land.

It’s unclear where this point will go.  Traditionally, trespass suits are solved with damages to the plaintiff.  Someone pays some kind of money or restitution for the act.  In the case, HALT isn’t asking for money.  We’re asking for something closer to a repayment in kind – we want our data back.  The judge indicated that she’s not sure if the law allows this, and wanted citations to try to get her there.  We’ll have to watch this closely.

Sizing up the two sides

I am obviously quite biased here, but I think the two sides are pretty easy to characterize.  Steve Richardson, the attorney for HALT, came across as clear, concise, and forceful in the day’s hearing.  He made an excellent case and ensured he was sticking to facts.  There are a few rough edges to the case and it’s not 100% a slam dunk, so we’ll have to see how it plays out with the judge.  Such is the nature of law.

The choice of PennEast’s lawyer, and his approach, are somewhat perplexing.  Their attorney normally does white collar criminal law and doesn’t cover something like a trespass suit.  It’s not clear why he picked him.  He seems to not really know civil law very well, and seems to be pandering to a jury which isn’t there – this is a judge only hearing.  He goes on long, rambling journeys through anecdotes and theories that seem to have little do with the case at hand.  Like PennEast themselves, he works a lot by making assertions, but not backing them up with any relevant data.  The judge gave him a lot of leeway, but even so at one point she had to sharply tell him to sit down when he was about to go off on a yet another long journey into who knows where.

Next steps

The judge should rule on the motion to dismiss within 1-2 weeks.  It could be in writing or involve a phone conference, but probably won’t be another hearing.  In my inexpert opinion HALT will win this portion easily.  PennEast made a poor case to dismiss.

The injunction is another matter, and we’ll have to see where the judge goes with it.  I think HALT’s case is strong, but it lays with the judge’s interpretation of the papers that are filed, the arguments made, and the law.  I think we’ll particularly have to see how the Zuccarelli trespass incident comes to light.

 

 

Recent PennEast Letters to Homeowners

PennEast has been sending new sets of letters out to homeowners along the route.  You may have heard about these on Facebook or elsewhere (or just might be one of the lucky ones along the proposed route!).  The letters are a plea from landsman par excellence John Barenz.  Mr. Barenz is a sort of super-hero at his job according to PennEast, and he’s here to help us all.

The letters themselves aren’t any different from what we’ve seen before – Mr. Barenz apparently speaks PennEastese fluently.  But people noticed something very odd about the letters right away.

You see, they appear to be hand-written.

On first blush, you might consider this either a cheesy ploy to project fake warmth and personality to threatened landowners.  Or you might think it is actually a nice touch.  Maybe PennEast is trying to be at least a tiny bit human.

But if you compare multiple letters, then something really odd happens.

It turns out, they are  hand written.  But the handwriting on every letter is different.  At least for the three I’ve seen.  In fact, here are two of them:

PELetterToHomeowners

What may have looked warm and personable at first now is downright creepy.  We have nearly identical letters (there are a few differences in wording), but in vastly different handwriting, both signed “John Barenz”.

And I mean, the handwriting isn’t a little different.  They are are utterly different in every way.

But wait, it gets even weirder!  Take a look at the front of the mailings!

PELetterCover

In the first one you’ll see that it’s addressed to a landowner on Riegelsville Road in Milford.  And the return address is – Riegelsville Road in Milford!  Since the writer actually attached a stamp, it means they possibly don’t want the reader to know where the message originated from.

However, the second one does have a valid return address.  It’s to a flex office space in Bethlehem, PA.  It used to be a wholesaler named Rade Technologies that was into sporting goods, but appears to be defunct now.  In any case, both letters are postmarked from the same post office, albeit one was sent on June 1st and the other on June 6th.

It’s been speculated that both of these letters may be computer generated.  I’ve seen the originals and it’s possible, there didn’t seem to be any pressure marks except for a couple of possibilities.  But that’s hardly the point – whether it was two or more people using different sets of fonts, or a more sophisticated type-to-handwriting computer system, or just a pool of interns writing these out at minimum wage, it hardly matters in the end.

What matters is sending out apparently hand-written notes from some sort of super landsman which are guaranteed not to be actually hand written personal letters is just par for the course for PennEast.  It’s a bit weird, a bit creepy, and it’s exactly the sort of whacky thing you’d expect from them.

Let FERC know what you think of PennEast’s on-going “community outreach” efforts like this!