NJ court says Pinelands pipeline approval was unlawful

Earth Day New Jersey Daily Life
Environmental groups rallied against a gas pipeline through the Pinelands in 2014. The B.L. England power plant is in the background.

A panel of New Jersey Appellate Division judges ruled Monday that the Pinelands Commission's 15-member board - not its staff - must decide if a proposed gas pipeline may proceed through protected Pinelands forest.

The ruling rejects the claim of the commission's executive director, Nancy Wittenberg, that she could approve the controversial pipeline project without the board's consent.

Wittenberg approved the controversial pipeline route in August 2015. She said she and commission staff had determined that the pipeline route complied with the commission's Comprehensive Management Plan, or charter, even though the board had rejected the route the previous year.

The proposed 22-mile pipeline would run from Maurice Township in Cumberland County to a converted gas-fired electricity generation plant in Cape May County.

About 10 miles would run through a protected forest area within the Pinelands preserve where regulations bar new utilities unless they serve residents of the affected area.

But Wittenberg said that because the electrical generation plant is in a Pinelands area - albeit outside protected forest - and serves local customers, it meets the criterion for overriding the ban on utilities.

Environmental groups opposed to the project were quick to denounce Wittenberg's action, and in January the Pinelands Preservation Alliance, Environment New Jersey, and the Sierra Club of New Jersey appealed her decision to the Appellate Division on procedural grounds.

The three-judge panel sided with the appellants.

"There . . . is no provision in the Pinelands Act that confers upon the executive director authority to render a final decision for the commission in the coordinated permitting process," it wrote in its 32-page opinion.

A spokesman for the Pinelands Commission referred inquiries to the Attorney General's Office. Leland Moore, its spokesman for civil litigation, said the office would not comment on the ruling.

Sean Earlen, chairman of the Pinelands Commission, did not return a request for comment.

Jeff Tittel, executive director of the state Sierra Club and a frequent critic of Gov. Christie, described the appeals court's decision as a "big victory for the rule of law and a slap at Nancy Wittenberg's and the Christie administration's arrogance. . . . If we hadn't challenged this they would have gotten away with it."

Carleton Montgomery, executive director of the Pinelands Preservation Alliance, also hailed the decision, saying it "sets a fundamental precedent that the Pinelands Commission must review developments in the Pinelands and find compliance with Pinelands protection rules before those developments can go forward."

Jeff DuBois, president of South Jersey Gas, said in a statement that he was disappointed by the ruling because it would delay the project's construction. He said it was "important to note that [the judges] cited no exceptions to the merits of or need for the pipeline."

Four former New Jersey governors have publicly opposed the proposed pipeline route, but it had the support of Gov. Christie, Senate President Stephen Sweeney (D., Gloucester), trade unions, and Upper Township, where the existing coal-fired plant would be converted to gas-fired.

Four new members have joined the commission's board since January 2014, when it voted, 7-7, on whether to allow construction of the pipeline. Without a majority approval the proposal did not pass, but in 2015 South Jersey Gas submitted a virtually identical proposal, which Wittenberg approved.

Tittel said the Sierra Club would appeal if the commission board approved the line.

doreilly@phillynews.com

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