Link to Actual Case (PDF) In Town of Weymouth v. Mass. Dept. of Env. Prot., 2020 WL 2904672 (1st Cir. 2020), the First Circuit vacated and remanded an air permit issued by the Massachusetts Department of Environmental Protection (“DEP”) to Algonquin Gas Transmission, LLC (“Algonquin”) for its proposed compressor station in Weymouth Massachusetts. Although the permit is being sent back to DEP for further review, the Court narrowed the issues on remand by ruling on the merits of each of the petitioners’ claims, finding in DEP’s favor on all but one. The only issue for DEP on remand is whether an electric motor is the Best Available Control Technology (“BACT”). The Court’s opinion provides important guidance for pipeline companies that are seeking to expand capacity on their systems through compression. Algonquin’s proposed compressor station, which received a certificate of public …
Rutter & Roy Secures Appellate Victory
Rutter & Roy recently secured an appellate victory on behalf of its client in connection with the State of New Jersey’s Manasquan Inlet to Barnegat Inlet Hurricane and Storm Damage Reduction Project (the “Project”). Following the Superior Court’s issuance of final judgments authorizing the State, by the Department of Environmental Protection, to take easements by way of eminent domain in connection with the Project, multiple commercial landowners (the “Defendants”) appealed from those judgments. In so doing, the Defendants raised several arguments challenging the State’s right to secure the easements. In two of the underlying cases, the Superior Court inserted language in the final judgments that clouded the rights secured pursuant to those judgments, prompting the State to file cross-appeals in those matters seeking to have that language removed. Rutter & Roy’s Brian W. Keatts argued the case on behalf of …
Environmental Permitting: What You Need To Know
Our What You Need to Know series continues with Richard Scott as he shares his insights about securing environmental permits in New Jersey. Q. Does environmental permitting occur at the state or federal level? A. Environmental permitting can occur at both the state and federal levels, but includes state permits and approvals as well as federal delegated authorizations. Specifically, the New Jersey Department of Environmental Protection (NJDEP) is in the unique position of issuing several federal authorizations, including both the Section 401 and Section 404 permits under the Clean Water Act (CWA), 33 U.S.C. §§1341(a) and 1344(g), and consistency determination under the Coastal Zone Management Act, 16 U.S.C. §1456(c). Interestingly, New Jersey and Michigan are the only states to have formally assumed the duties of the CWA Section 404 permitting program. Q. What is the most effective way to secure environmental permits in New Jersey? A. The key to …
Building Across Green Acres-Encumbered Property: What You Need To Know
In this Q&A, Rutter & Roy Managing Partner Christine Roy offers insights into getting the necessary property rights when building across Green Acres-encumbered land. Q: What is the most-significant challenge facing your clients when they encounter Green Acres-encumbered land? A: The most-significant challenge that clients face is getting the cooperation of the local unit (i.e., township, county, or nonprofit) so they can go through the Green Acre diversion process. The diversion process is a very onerous process that, if approved, would allow a local unit to grant permanent rights to a third party such as an interstate pipeline or electric transmission company. Our firm has 30 years of experience in dealing with NJDEP Green Acres diversions and has been able to come up with solutions to the problem of non-cooperative local units. Q: What are some of the other challenges? A: Another major …
Interstate Pipeline Companies: Condemning the State in Federal Court
This article originally appeared in the May 2019 issue of Pipeline & Gas Journal. Since publication, there’s been an important judicial update; additional information immediately follows the article reprint. Note: This addendum provides further detail of events and decisions occurring since the original article was published. The State of New Jersey appealed the New Jersey District Court’s decision to the U.S. Court of Appeals for the Third Circuit. The Third Circuit has now ruled on this issue and held that the Natural Gas Act did not abrogate New Jersey’s sovereign immunity and that PennEast cannot condemn property in which the state holds an interest without the state’s consent. In its decision, the Third Circuit held that “Congress cannot abrogate state sovereign immunity under the Commerce Clause, and because Congress enacted the NGA pursuant to that Clause, the statute cannot be a valid …
Navigating Green Acres Restrictions: Mitigating the Impact on Utility and Development Projects
It takes a comprehensive understanding of New Jersey’s environmental regulations and property restrictions to avoid potential pitfalls and successfully complete utility and development projects involving New Jersey’s open spaces. Our more than 30 years’ experience advising major interstate pipeline companies and other clients on planning utility and development projects have revealed that one of the principal challenges they face is identifying Green Acres-restricted land. The difficulty is more pronounced with unfunded parcels not listed on a local unit’s Recreation and Open Space Inventory (ROSI), the NJDEP’s master list of Green Acres-encumbered properties in each municipality. For example, we identified a conservation restriction that was labeled as a “Drainage and Conservation Easement” on a field map only. The Township deemed it Green Acres restricted, and a diversion was required. Rutter & Roy’s in-depth research includes ROSI Title search Information from the …
Pipeline Projects & New Jersey’s Green Acres Restricted Land
One of the biggest challenges to successfully planning pipeline projects in New Jersey’s open spaces is identifying whether or not a property falls under Green Acres restrictions. The master list for these properties, called the Recreation and Open Space Inventory (ROSI), is often incomplete due to a municipality not reporting properly, non-profit ownership (where no reporting is required), and multiple other issues. Rutter & Roy meets this challenge using years of experience, in-depth research, conversing with the local unit (county, township, etc), and turning to the Green Acres Program staff when necessary. If a property is identified as Green Acres restricted, there are several steps involved in the diversion process. There are pre-application and final application portions in addition to multiple public hearings that are held to ensure each local unit has a voice. The intentionally lengthy process was designed …
Streamlining the Land Use Permitting Process
In 2015, the New Jersey Department of Environmental Protection (NJDEP) began streamlining land use permitting programs administered by the Division of Land Use Regulation, including two areas that impact the ability to apply for and obtain permits. Landowner Consent Before the amendments, Coastal Zone Management (CZM) Rules and Flood Hazard Area (FHA) Control Act Rules allowed only property owners or their agents to apply for environmental permits. Currently the CZM, FHA, and the Freshwater Wetlands (FWW) Protection Act also accept permit applications from individuals proposing a project as long as they have “legal authority,” the owner’s prior consent. Additionally, public entities proposing an activity within a right-of-way or easement that they hold, or that will be appropriated by them under the power of eminent domain, may file an application for a permit. You must likewise have written consent from the …
Getting in on the New Jersey ‘Wind Rush’
It’s clean, it’s beautiful, and it’s inexhaustible. It’s wind. As of earlier this year, New Jersey has decided to join the growing worldwide community of countries and states that are inviting this ancient, yet high-tech method of powering our homes, businesses, and lives. Gov. Murphy announced in July that the Danish company Ørsted has been named to build the state’s first offshore wind farm, a project the state says will power half a million homes, bring 15,000 jobs to the state, and bring $1.2 billion in economic benefits ashore along with the wind power. There is every reason to think that other companies and projects will follow, given 130 miles of coastline and the growing demand for green energy, amidst growing worry about climate change. Best estimates are that we are looking at a multi-billion-dollar business here, and we want …
Rutter & Roy Attorneys Participate in Houston Pipeline Opportunities Conference
New Jersey Energy Lawyers Lead Session on Changes at FERC Two noted attorneys from Rutter & Roy LLP of Freehold, N.J.–Christine A. Roy and Richard G. Scott–will lead a panel at the Pipeline Opportunities Conference April 9th in Houston. Ms. Roy and Mr. Scott will discuss changes at FERC—the Federal Energy Regulatory Commission—and how the federal agency has of late delegated some of its powers to individual state authorities. The day-long conference is sponsored by Pipeline & Gas Journal, in partnership with the Interstate Natural Gas Association of America (INGAA) and features energy executives who represent pipeline operators, associations, service companies and the federal government. The 15th annual event provides unparalleled strategic insight into the state of the pipeline industry worldwide. Natural gas and pipeline experts will gather to discuss topics such as oil and gas prospects, pipeline infrastructure and more. …
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