For quite some time people involved in the fight against PennEast have despaired that FERC seems to possess nearly omnipotent power when it comes to natural gas pipelines.  They seem to hold all the cards, and are prone to sticking their fingers in their ears and going “la la la la la la la la” when residents impacted by pipeline proposals make objections.

It is well known that their Final Environmental Impact Statements are more-or-less copied and pasted from one decision to the another, and that they kick the can down the road by issuing “conditions” on their recommendations.

In fact, as much as we whine about how horrible FERC is, a big part of the problem is something called the Natural Gas Act of 1938.  That act (along with some amendments over the years), gives FERC incredibly broad authority when dealing with natural gas pipelines.  Here’s what the law says on FERC using a Certificate of Public Convenience and Necessity:

… a certificate shall be issued to any qualified applicant therefor, authorizing the whole or any part of the operation, sale, service, construction, extension, or acquisition covered by the application, if it is found that the applicant is able and willing properly to do the acts and to perform the service proposed and to conform to the provisions of this chapter and the requirements, rules, and regulations of the Commission thereunder, and that the proposed service, sale, operation, construction, extension, or acquisition, to the extent authorized by the certificate, is or will be required by the present or future public convenience and necessity; otherwise such application shall be denied.

The key words are basically that FERC can give a certificate to anybody who appears to be qualified, who adheres to some extraordinarily simple rules in the Natural Gas Act itself, and which satisfies FERC’s regulations.

This means that FERC is (almost) the sole arbiter of whether or not you get a Certificate from them, under rules that FERC writes itself.

Ouch.

It gets worse though.  The Act continues with this statement:

The Commission shall have the power to attach to the issuance of the certificate and to the exercise of the rights granted thereunder such reasonable terms and conditions as the public convenience and necessity may require.

This means that FERC is allowed to attach arbitrary conditions to a Certificate (so long as they are “reasonable”, which is a rather broad standard).  This allows FERC to basically shirk it’s duty and grant eminent domain power to companies who barely have any idea about the project they are proposing (e.g. like PennEast).  They do this by simply saying “please figure out the details before construction starts”.

Double ouch.

Those Conditions Have Teeth

However, there is a reason for those conditions to be there, and that is where companies like PennEast are vulnerable.  You see, the Natural Gas Act does not live in a  bubble.  FERC does not have exclusive jurisdiction over natural gas companies, nor does FERC’s word have ascendency over other agencies or laws.  They lead the permitting process, but other agencies don’t have to listen to them or agree.

In PennEast’s case, the Final EIS contains about 60 recommended conditions before implementation is allowed.  Some of them are a rather minor, but others are biggies.  For example, they must get Clean Water Act 401 permits from PA and NJ.  They must get a Clean Water Act 404 permit from the Army Corps of Engineers in PA, and from NJDEP in NJ.  They must adhere to SHPO for historical impacts, the Endangered Species Act, and a laundry list of other acts and agencies.

And this is where PennEast is running into trouble.

Clean Water Act Permits

The CWA is very interesting, in that it is a Federal Law that is nominally owned by the EPA.  But, in fact, the administration of the Clean Water Act is mostly delegated to the States.  So this is a rare area where State Governments and agencies have federal powers equal to that of the Federal Government and its agencies themselves.

Clean Water Act Permits in PA

For the CWA 401 and 404 permits in PA, PennEast applied jointly to both the PADEP and the US Army Corps of Engineers (USACE) for the CWA permits.  PADEP approved the 401 portion several months ago.  But this week, the USACE issued a letter to FERC & PennEast stating that the application lacked sufficient information for the Corps to do anything with it, and they were refusing to do anything more (or even put together a timeline) until such time as PennEast gets the information USACE needs.

And let me tell you, that USACE letter was much worse for PennEast than it may seem. The Corps’ letter was extraordinarily harsh and remonstrative to PennEast.  They are sending a clear signal to PennEast that the Corps’ does not look favorably on this project at all.

Keep in mind that the Corps’ official motto is “Essayons”, which is French for “Let Us Try”.  They are a gung-ho, can-do group who prides themselves in doing impossible engineering feats.  These are the guys that go out and build bridges under enemy fire.  They are brave, resourceful, courageous and incredibly inventive.

And they just told PennEast to stop bothering them.

Ouch on PennEast.

Clean Water Act Permits in NJ

In NJ, PennEast needs to apply to NJDEP for both the 401 and 404 CWA permits (NJ is one of the very few states to do 404 permitting; USACE does it in nearly every other case).  PennEast did so the day before the FEIS was issued by FERC.

It is mystifying why PennEast made such an application.  During the DEIS comment period, NJDEP repeatedly stated that PennEast lacked sufficient on-the-ground surveying data, that their application would almost certainly be incomplete and rejected, and to basically not bother to do anything until they actually had the data.

But PennEast went ahead and applied anyway.

This week, NJDEP did exactly what they said they would do.  They issued a notice to PennEast stating that their application was incomplete, they were missing huge amounts of required data.  And, most critically, NJDEP ruled that PennEast’s application was made without having the legal authority to actually enter all of the impacted properties on the permit.  PennEast “crossed out” the compliance section for legal authority to access and wrote in their own B.S. justification.

NJDEP called them out on this (sorry PennEast, you cannot make up your own regulations), and said they have 30 days to fix it.

NJDEP also said that even if they did acquire legal authority (which would be eminent domain authority via a FERC certificate), NJDEP would still require voluntary sign off from all impacted landowners before they would consider the application.

And, as with the USACE letter, the NJDEP’s response was not a mild bureaucratic objection to some minor items missing here or there.  This letter is a warning shot directly across PennEast’s bow.

Let’s explore what that means.  NJDEP says they have 30 days to both obtain “legal authority” to survey the entire route in NJ; and PennEast has 30 days to get signatures from everyone along the route – including many abutters who have wetlands or other features (like my property!).

If PennEast does not give NJDEP this information, NJDEP will deem the application to be officially dead.  PennEast would have to re-apply at some future data when they had all of this information.

Here are the obvious problems for PennEast here:

1. PennEast can’t get legal authority without eminent domain.
2. PennEast can only get eminent domain from a FERC Certificate Order
3. FERC can’t  issue a Certificate Order because it lacks a quorum
4. There is no nominations to FERC in site from the Trump Administration
5. THERE IS NO WAY IN HELL PENNEAST WILL GET MY SIGNATURE, OR THOSE OF THE REST OF THE 65%+ OF IMPACTED LANDOWNERS WHO HAVE REFUSED ACCESS.

Implications

So there you have it.  On PennEast’s side, they have a favorable Final EIS from FERC.  And they have a permit from PADEP.

On the negative side, you have USACE saying the joint PA permit is severely lacking (which puts PADEP in a very awkward situation I might point out).

You have NJDEP saying that not only is their application missing a ton of data, but that the application is invalid on its face because PennEast lacks authority to do what they are asking to do.

Assuming the FERC quorum isn’t going to happen anytime soon, and assuming that FERC is piling up a huge backlog of decisions, this puts PennEast into a really, really bad spot.  Right now they are STILL claiming they will be in-service by 2018.  But for that to happen, they need to get a FERC certificate, and then satisfy all 60+ conditions (including NJDEP and USACE permits) before they can clear cut trees.

And they need to clear cut those trees by March, 2018 to meet their deadlines.

In my mind, this is pretty simple.  PennEast is totally stuck until FERC gets a quorum and issues a certificate.  One that happens (when? In two months? 6 months?  9 months or more!?), they need to then go to the courts to demand survey access to properties.  They need to go into condemnation proceedings.  And they need to do all the on-the-ground surveys that USACE and NJDEP needs (so full surveys for the entire line, not just in NJ).  They need to then reapply to NJDEP with all that info (plus all our signatures!), and submit all the PA data to USACE.

THEN USACE and NJDEP start their reviews – after all of that happens.

And I seriously – very seriously – doubt that there is any way for that to happen.

Oh, and One More Thing….

Meanwhile, while all this is going on, we have a Gubernatorial election in NJ.  And all of the likely candidates firmly believe PennEast is a bad idea.

The next governor will help shape NJDEP policy.  And the new governor is also  one of the 5 members of the DRBC board of commissioners – who also have a permitting say against PennEast.  Right now the DRBC board is 3 members pro-pipelines (PA, NJ, and USACE) 2 members anti (DE, NY).  The likely new governor will swing that to three anti-pipeline states.

The question in my mind now is “when will stockowners in the PennEast member companies stand up and demand that stop throwing good money after bad and withdraw from PennEast just as PSEG had?”.

Seriously – if you own stock in New Jersey Resources, or South Jersey Industries, or The Southern Company, or UGI, or Enbridge, when do figure these companies are throwing your money away chasing and impossible PennEast dream?

Did you comment on the DEIS? Then we need your help.

A key part of the Final Environmental Impact Statement (FEIS) from PennEast is Appendix M.  Appendix M contains all of the FERC staff responses to everyone’s comments on the Draft EIS.  If you commented on the DEIS, this includes you.

In a rare act of being somewhat helpful, FERC staff actually put an index on the front of the Appendix M.  This correlates everyone’s DEIS comments to a response either in the document, or in some other part of the Final EIS.  The link to Appendix M is below:

Link to FEIS Appendix_M_DraftEISCommentResponses.pdf

HERE IS YOUR ASSIGNMENT:

1. Right now, mentally commit some time to do this. For the truly organized, put in a calendar entry on a convenient date in the next week for “Show the FEIS is wrong!”
2. When it’s time to Show the FEIS is Wrong, open the document and find your name.  If you represent an organization, search for your name plus any variations on your organization’s name.
3. Find the comments referred to in the index.  Reacquaint yourself with your witty prose and devastating comment to FERC about how bad PennEast is your family, your home, your town, your region, and the environment.
4. Find the FERC staff responses to your comment
5. Document JUST HOW BAD FERC’S response is in an eFiling to FERC

You can find your exact comments using the FERC advanced search and your comment’s “Accession Number”:

Link to FERC’s Advanced Search

Do the following to do a lookup by Accession Number:

1. Extend the date back to 2015 to ensure it’s searching all documents
2. Put in the PennEast docket CP15-558
3. Near the bottom, put in your Accession Number in the Accession Number field
4. Hit Submit

For reference, here are all the Final EIS files:

Link to Final EIS Files

If you’re unable to post your findings to FERC, or you have questions, please email me at thecostofthepipeline@gmail.com.

This is the kickoff speech I gave at the HALT event today at the Prallsville Mill in Stockton.

Good afternoon.   Today I’m not going to speak about our rights, or about all of our many emotional impacts and trials of this proposed project on every one involved, or even draw conclusions.  What I’m going to do is hit you all with some numbers and some simple words, and let you decide what it all means.

5 – the number of PennEast owners left.  PSEG is gone.  Now there are just the owners of New Jersey Natural Gas, South Jersey Gas, eTown Gas, UGI, and Spectra Energy.

1.1 billion cubic feet – Amount of natural gas PennEast will carry per day.

2.1 billion cubic feet- Amount of natural gas the entire state of NJ uses in a day

53% – amount of massive over capacity PennEast represents for the State

Displace – what PennEast owners say PennEast gas will do.  Not “add to existing supply” – displace existing supplies we already have.

Boom and Bust – What happens when you let industry run unchecked.

ON WHY ARE THEY DOING THIS?

62% – amount of self dealing contracts where PennEast is buying gas from itself

12% – PennEast’s guaranteed rate of return on PennEast investment

10% – PennEast would represent 10% of South Jersey Industries’ Total Income if built

5-10% – Projected Net Financial Earnings of PennEast to New Jersey Resources.

“FERC-Level” Returns – NJR Quote on why they want to build PennEast

All of us – who will pay for it all

Go Up – what our natural gas and electrical rates will do if PennEast is approved

ON JOBS

250 – Total number of local construction Jobs PennEast will bring to NJ

7 – total number of weeks those people will be working.

10 – Total number of permanent NJ jobs

To reiterate – 250 construction jobs for 7 weeks only. 10 or less permanent jobs after.

ON SURVEYS AND KNOWLEDGE

70% – The percentage of impacted landowners in NJ who have refused survey access

100% – Percentage of hold outs who we believe will fight all the way to eminent domain

0 – the number of wells FERC and PennEast still think are within 150’ of any PennEast construction.  Even as of the Final EIS that dropped yesterday, they still have no clue about any of our wells or septic systems.

2 1/2 – 2 1/2 years is the number of years FERC and PennEast still don’t know about our wells and septic systems!

Nearly 0 – The amount of environmental damage FERC believes PennEast will cause

0 – FERC’s and PennEast’s apparent actual knowledge of our region

ON SAFETY

1 inch – what NJ regulations would require for PennEast pipeline’s thickness for safety

1/2 inch – The actual thickness PE will use under lax federal regulations

44% – how much safer NJ regulations are than Federal regulations PE will follow

44% – How much less federal regulations value rural lives

1,480.  PennEast pressure on each and every square inch of the pipeline.

81’ – distance of construction to my neighbor on Hewitt Road

10′ – distance of construction from house on Old 518 West in West Amwell

450 – the number of homes and structures  within 50’ of the pipeline construction.

11,574 cubic feet/second – equivalent of 1 billion cubic feet/day

90 – Equivalent gallons of gasoline burning per second if PennEast were breached

980′ – the Federal “Potential Impact Radius” or “blast zone” or “incineration zone”

100% – Percentage of structures and homes that would be utterly destroyed within 50’ of a pipeline breach.

2 – the number of children we adopted last year

167′ – the distance from the pipeline to my 5 year old daughter’s bedroom

177’ – distance from the pipeline to my 8 year old son’s bedroom

Thousands – number of homes like ours within the 980’ “Potential Impact Radius”

THOSE ARE THE FACTS OF WHO PennEast is,

THEY ARE NOT IN DISPUTE.

THIS IS WHAT IT IS, AND WHAT THEY WILL DO

I LEAVE IT TO YOU ALL TO YOU DECIDE if this is right for our region.

IS THIS RIGHT FOR US?