Now that a federal agency has granted approval to a controversial natural gas pipeline that is planned to be routed through Jersey City, city officials are gearing up for the next round in the fight to block the project.
On May 21, the Federal Energy Regulatory Commission (FERC) approved a proposed natural gas pipeline that Spectra Energy plans to build through northern New Jersey into New York City. While the timing of the decision, which came a month earlier than anticipated, was a surprise to many, the approval itself was not. Jersey City residents and public officials have for two years assumed that FERC would most likely approve Spectra’s plans.
The City of Jersey City and at least one grassroots organization are now planning to file separate lawsuits to block construction of the pipeline, and the city is exploring whether local legislation can impose changes the federal government would not.
‘You have to have substantive reasons and procedural reasons’ to prevail in a federal lawsuit, according to Jeff Tittel of the New Jersey Sierra Club.
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Proposed project
The proposed pipeline would include 19.8 miles of new and replacement pipes, six new pump stations, and other related modifications in Linden, Jersey City, and Bayonne. In Jersey City, the underground pipeline route would run through nearly every municipal ward and near such sensitive areas as Jersey City Medical Center, several schools, the Holland Tunnel, the New Jersey Turnpike, and transportation infrastructure near the Jersey City-Hoboken border.
The pipeline would cross the Hudson River into New York to connect the company’s existing pipeline to Manhattan and Staten Island, supplying customers of Con Edison.
Spectra has also said that it will supply energy to power facilities operated by Bayonne Plant Holding and boilers at the International Matex Tank Terminals, also in Bayonne.
Because of the pipeline’s close proximity to sensitive areas, local activists and city officials have argued that a natural gas explosion could cause mass casualties and significantly damage important transportation infrastructure. Mayor Jerramiah T. Healy has also noted that the potential hazards posed by a gas pipeline could hurt future commercial and residential development in the city.
Despite these concerns, the energy company received approval from FERC and several required environmental permits from the New Jersey Department of Environmental Protection.
Uphill legal fight
Now that FERC has approved the project, the city has 30 days to appeal the ruling. This is a perfunctory step the city can, and will, take, but will likely not result in a new ruling. FERC will almost certainly review the city’s appeal and uphold its original decision to approve the pipeline. Once this appeal is denied the city and other entities that filed as interveners will then have 60 days to file lawsuits.
“Interveners” are people, organizations, businesses, or municipalities that filed for intervener status with FERC. Having intervener status gives these entities the right to sue.
The most visible organization likely to file a class action lawsuit is the nonprofit No Gas Pipeline, an activist group of residents that has been fighting the Spectra pipeline for two years. The organization has already lined up pro-bono legal representation to assist in the legal fight against Spectra.
However, such lawsuits are difficult to win in court and both the city and No Gas Pipeline face an uphill battle in their courtroom fight against the project. Few lawsuits of this kind have succeeded in the past.
“You have to have two things, in order to prevail in federal court,” said Jeff Tittel, director of the New Jersey Sierra Club. “You have to have substantive reasons and procedural reasons. You have to overcome the presumption of validity that an agency like FERC has. Also, the legislation that set up agencies like FERC given these agencies tremendous powers. So, what you would need to show is that FERC made a mistake on substance and a mistake from a procedural standpoint. This is not an easy thing. That’s why we’re not saying that we’re going to file a lawsuit. We’re going to see if we can challenge this. But we’re also going to go through everything very thoroughly to see if we have the proper grounds to challenge this. It’s going to be an uphill battle, but that doesn’t mean FERC didn’t make mistakes.”
The Millennium Pipeline, in New York State was challenged, but was ultimately upheld by the courts.
Tittel and the Sierra Club fought a pipeline project that had been approved by FERC and the company behind the project abandoned their plans after it looked like it might lose the legal fight against the project.
The Hackensack Riverkeeper was part of a David v. Goliath-type lawsuit involving illegal dumps in North Bergen several years ago. The organization successfully proved that a railroad was in violation of the Resource Conservation and Recovery Act.
But city officials acknowledge that the legal fight will be a tough one.
“Cases that have challenged past FERC decisions on pipelines have nearly all – if not all – failed,” said Mayor Healy. “The way the system is structured, and as it stands, is one that grants federal agencies way too much discretion. It puts cities like ours at a major disadvantage. Despite this, we are going to continue the fight to convince FERC or a federal circuit court that we’re right.”
Healy and the city’s attorneys seemed prepared to argue that this is a unique, landmark case that is different from other similar cases that have challenged other FERC decisions in the past.
Specifically, the city may argue that no other large urban metropolitan area has a high pressure natural gas pipeline running through it and thus Jersey City – it’s neighborhoods and infrastructure – cannot be compared to other places where FERC has approved natural gas pipelines in the past.
Dale Hardman, president and founder of No Gas Pipeline said, “We feel that there are many holes in the final [Environmental Impact Statement] that FERC used to determine their ruling and we shall bring arguments of process lacking material facts of disclosure in federal court. I realized when I started No Gas Pipeline that FERC never met a pipeline it didn’t like, in fact when asked if they ever overuled against a pipeline being built you get no clear answer from FERC. We saw that we must become intervenors and be willing to sue FERC to overturn their ruling from day one. That day has come.”
Other strategies
The city is exploring other possible ways to fight the pipeline outside the courtroom.
“In addition to pursuing traditional legal measures, we are presently researching other avenues to fight Spectra’s plans and we are hopeful that they may bear fruit,” said Healy.
Specifically, the city may draft and set local legislation that all but forces Spectra to change the current design of its pipeline.
In the past, city attorneys have also stated that they will try to stall construction of the pipeline, which may also force Spectra to alter its plans.
Con Ed’s plans
ConEd expects to have natural gas flowing from the Spectra pipeline in November 2013. Even Spectra has conceded that if the project can’t meet this target date it might not be economically feasible to move forward with it.
In order to meet this deadline, Spectra needs to break ground at the end of this year.
A lengthy court battle could derail Spectra’s ability to meet its obligations to ConEd, a fact not lost on Jersey City.
“The longer we draw this out, the better it is for us,” Associate City Attorney Derek Fanciullo told the City Council in February. “Maybe the problem will naturally abate, so to speak.”
Citing documents submitted to FERC, Fanciullo said Spectra is already making contingency plans should pipeline construction be delayed until next year. “What they have done is they have asked FERC to allow them to truncate their construction schedule to meet those deadlines,” he said.
Already, the city has purposely blocked some necessary preliminary work. For example, last year Spectra requested city permits to conduct soil samples in Jersey City. The city denied this request.
In 2009, when the ConEd-Spectra deal was announced, ConEd President and CEO Kevin Burke said in a press release, “The new pipeline will help us meet the growing energy needs of our area, strengthen the reliability of the natural gas system, and improve air quality for all New Yorkers. The Spectra Energy Project will also help us achieve the goals of the mayor’s and governor’s long-term energy and environmental goals as outlined in PLANYC and the state energy plan.”
But how long will ConEd wait before coming up with a backup plan to get its natural gas somewhere else?
When asked whether the utility would drop its commitment to Spectra and re-bid its natural gas contract if Spectra gets embroiled in a long court fight, a spokesperson for ConEd said, “The Spectra project is essential for us to reliably meet growing natural gas demand in future years, particularly with the significant increase we are seeing in oil-to-gas conversions.”
Fanciullo said there are a number of delaying tactics the city can use. However, the city has declined to publicly discuss some aspects of its possible legal strategy to prevent Spectra from having the information.
Marylee Hanley, a spokesperson for Spectra, said in response, “As has been true since the NJ – NY Expansion Project began, we will continue to reach out and work with the community.”
E-mail E. Assata Wright at awright@hudsonreporter.com.