Category Archives: Environmental

2018-12-14 PennEast: Bad News for residents and the environment: Today Federal District Court in Trenton has granted a preliminary injunction authorizing PennEast, upon posting of a bond, to immediately enter and take possession of citizens’ private land in the right of way of the proposed pipeline

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
____________________________________

IN RE PENNEAST PIPELINE : First Filed Civ. A. No.: 18-1585 COMPANY, LLC : (See Exhibit A for all Case Numbers) :
ORDER
____________________________________:

THIS MATTER is before the Court on Plaintiff PennEast Pipeline Company, LLC’s (“PennEast”) application for orders of condemnation and orders granting preliminary injunctive relief under the federal power of eminent domain pursuant to the Natural Gas Act (“NGA”), 15 U.S.C. § 717f(h), authorizing immediate access to and possession of the rights of way (“Rights of Way”) as defined in the respective Verified Complaints in Condemnation of Property Pursuant to Federal Rule of Civil Procedure 71.11, for the purpose of “constructing, operating, and maintaining a natural gas transmission pipeline and appurtenant facilities (part of an interstate natural gas transmission system) and conducting all other activities required by the Order of the Federal Energy Regulatory Commission [(‘FERC’) issuing certificates (‘FERC Certificates’)] dated January 19, 2018, [FERC] Docket No. CP15-558-000 (‘FERC Order’)” (Am. Not. of Condemn. 2; Compl. ¶ 8). PennEast’s request is made in advance of any award of just compensation. In response thereto, upon the request of PennEast, and for good cause appearing, the Court entered an Order to Show Cause ordering Defendants to show cause why an order for condemnation should not be granted. Having heard the arguments of the parties pursuant to Federal Rule of Civil Procedure 78(a), and having carefully reviewed the numerous submissions filed in support of and in opposition to PennEast’s application and in response to the Order to Show Cause, for the reasons set forth in the accompanying Opinion, and for good cause shown,

IT IS on this 14th day of December 2018,

ORDERED that the State Defendants’ request for dismissal is DENIED; and it is further

ORDERED that PennEast’s application for orders of condemnation and for preliminary injunctive relief allowing immediate possession of the respective Rights of Way in advance of any award of just compensation is GRANTED, and it is further

ORDERED that PennEast shall post security in the form of a surety bond into the Court’s Registry pursuant to Local Civil Rule 67.1(a) in the amount of three times the appraised value for the Rights of Way as determined by the independent appraiser retained by PennEast; and it is further

ORDERED that, upon PennEast’s post of appropriate security, PennEast is authorized to immediately enter and take possession of the Rights of Way for all purposes allowed under the FERC Order, and it is further ORDERED that this Order does not affect Defendants’ rights to receive just compensation for the condemnation of the Rights of Way; and it is further

ORDERED that the Court, on its own motion, hereby appoints, at the sole cost and expense of PennEast, the following individuals as Special Masters/Condemnation Commissioners to adjudicate and determine the quantum of just compensation:

• The Honorable James R. Zazzali, C.J. (ret.) Gibbons P.C.
One Gateway Center Newark, New Jersey 07102 jzazzali@gibbonslaw.com

• The Honorable Joel A. Pisano, U.S.D.J. (ret.) Walsh Pizzi O’Reilly Falanga LLP One Riverfront Plaza 1037 Raymond Blvd., Suite 600 Newark, New Jersey 07102 jpisano@walsh.law

• The Honorable Kevin J. O’Toole O’Toole Scrivo Fernandez Weiner Van Lieu, LLC 14 Village Park Road Cedar Grove, New Jersey 07009 kotoole@oslaw.com

• Joshua Markowitz, Esq.
Markowitz Law Firm LLC 3131 Princeton Pike Building 3D, Suite 200 Lawrenceville, New Jersey 08648 joshm@mgs-law.com

• Shoshana Schiff, Esq.
McManimon, Scotland & Baumann, LLC 75 Livingston Avenue Roseland, New Jersey 07068 sschiff@msbnj.com and it is further

ORDERED that the Court, along with the Special Masters/Condemnation Commissioners, shall hold a case management conference on February 14, 2019, at 10:00 a.m. in Courtroom 1 of the Clarkson S. Fisher U.S. Courthouse, 402 East State Street, Trenton, New Jersey 08608, regarding the protocol for determining just compensation; and it is further

ORDERED that PennEast shall provide via CM/ECF by no later than January 4, 2019, revised, case-specific forms of orders, which reflect the Court’s decision as set forth herein and which include descriptions of the property, the Rights of Way, the appraisal for the Rights of Way, and the amount of the bond, to be calculated at a rate of three times the appraisal amount; and it is
finally

ORDERED that, in the event of a violation of this Order by property owners, the United States Marshal Service, or a law enforcement agency it designates, shall be authorized to investigate and to arrest, confine in prison and/or bring before the Court any persons found to be in violation and in contempt of this Order, pending his/her compliance with this Order.

/s/Brian R. Martinotti HON. BRIAN R. MARTINOTTI
UNITED STATES DISTRICT JUDGE

#SourlandConservancy asks #FERC to rescind #TollingOrder in #PennEast as violation of due process in papers filed by #EnviromentalLawyer #DanteDiPirro

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On February 22, 2018, the Commission issued a “tolling order” in PennEast Pipeline Federal Energy Regulatory Commission proceeding.

In the tolling order, the Commission gave itself an indefinite  extension of time to rule on requests for rehearing and stay, and allowed the project to continue (including allowing condemnation of residents’ homes and cutting down of trees), while attempting to block judicial review of the Commission’s orders on the grounds that its orders are not yet “final.”

Today, environmental lawyer, Dante DiPirro, filed papers  on behalf of the Sourland Conservancy, a non-profit that protects the 90-square mile Sourland Mountain Region in Central New Jersey — contending that the Commission cannot allow harm while depriving parties of their day in court, and that rigging the process — which is what the tolling order is doing– is improper and contrary to law.

The papers conclude that the Commission must must act immediately to either: (1) rescind the Certificate of Public Convenience and Necessity (for all of the reasons set forth by the parties that requested rehearing and stay); or (2) rescind the Tolling Order, which would cause the requests for rehearing and stay to be deemed denied, thus allowing the parties to seek relief in the courts.

20180321 Sourland Conservancy Comment on PennEast

#DanteDiPirro files papers with #FERC on behalf of #SourlandConservancy opposing #PennEast pipeline

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Cover Page jpg

March 15, 2018, today Dante DiPirro filed papers with the Federal Energy Regulatory Commission  on behalf of the Sourland Conservancy requesting rehearing of the Commission’s Order granting  a Certificate of Public Convenience and Necessity to PennEast Pipeline Company, rescission of the Order, and a stay pending rehearing.

Link to filing:

20180315 Sourland Conservancy Comment PennEast

Background: The PennEast Pipeline threatens drinking water and the environment in New Jersey and Pennsylvania, preserved lands, and the homes of residents along the 120 mile route, in the name of continuing dirty fossil fuels that should be replaced by clean renewable energy.

In opposing the pipeline, the Conservancy joins a large number of groups and concerned citizens, including, the New Jersey Department of Environmental Protection, Sierra Club, New Jersey Conservation Foundation, Stony Brook Millstone Watershed Association, numerous municipalities and numerous individuals.

 

PennEast Pipeline: NJDEP need not worry about today’s 2nd Circuit ruling in Millennium Pipeline case

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<> on July 26, 2013 in Williston, North Dakota.

March 12, 2018, the 2nd Circuit ruled NYDEC waived its authority under Section 401 of Clean Water Act by failing to deny the application within 1 year of filing,  holding that the clock for government decision runs even if the application is administratively incomplete.

20180312 2nd Cir Opinion NYDEC failed to deny 401 certification app 1 yr Millennium Pipeline

This ruling need not concern the NJDEP in its review of the PennEast Pipeline, because in February 2018 the Department already timely denied the Pipeline’s application for a 401 Certification under the Clean Water Act.

GOP Fails to Kill Methane Rule in a Capitol Hill Defeat for Oil and Gas Industry

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<> on July 26, 2013 in Williston, North Dakota.

 

From Inside Climate News:

https://insideclimatenews.org/news/10052017/methane-climate-rule-oil-gas-flaring-congress-vote-rejects

 

 

The Senate on Wednesday rejected a bid to overturn an Obama-era rule that limits climate-warming methane leaks from oil and gas operations on public lands, but the industry, along with its allies in Congress, says it will continue challenging the rule.

The surprise 49-51 vote handed a defeat to the industry, which has pushed Congress to undo the rule under the Congressional Review Act, a little-used law that allows lawmakers to kill rules with a simple majority vote.

The rule, issued by the Department of the Interior at the end of the Obama administration, limits venting and flaring of methane from natural gas and oil drilling operations, a restriction that officials estimated would prevent 180,000 tons of methane from leaking into the atmosphere every year. Methane, the main component of natural gas, has over 80 times the warming power of carbon dioxide over a 20-year period.

“The rule is so basic. All it’s asking for is for oil and gas companies to capture their methane waste, which is now going up into the atmosphere as carbon pollution, and really potent carbon pollution at that, and put it back into their pipes and, potentially, back into the market,” said Lena Moffitt, who directs the Sierra Club’s Beyond Dirty Fuel campaign. “It’s just asking them to plug their leaks.”

The oil and gas industries, emboldened by the Donald Trump administration and backed by conservative groups, said the rule duplicated existing state rules and would lead to higher energy costs, job losses and less energy production on public lands.

Seismic Surveys Planned Off U.S. Coast Pose Risk To Marine Life : Yet another reason to oppose offshore drilling

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Seismic Surveys Planned Off U.S. Coast Pose Risk To Marine Life
by Christopher Joyce

NPR – February 19, 2018

Animals that live in the ocean communicate with sound — humpback whales, for example. But these voices could soon be drowned out by powerful sonic booms from vessels searching for oil and gas….

https://www.npr.org/sections/thetwo-way/2018/02/19/586061334/seismic-surveys-planned-off-u-s-coast-pose-risk-to-marine-life?sc=17&f=1001&utm_source=iosnewsapp&utm_medium=Email&utm_campaign=app

Groups sue over NJ Div. of Fish and Wildlife’s 17 year failure to timely provide annual reports to the public

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January 11, 2017.  Today, Dante DiPirro, an environmental and animal lawyer, asked the NJ Appellate Division at oral argument to rule that the NJ Division of Fish and Wildlife had failed to timely provide annual reports to the public for the past 17 years.  On behalf of a coalition of grassroots groups who sued, he further asked the Court to compel the Division to complete each annual report by the statutory deadline of November 30th, and simultaneously post the report on the internet and provide copies to the New Jersey State Library for permanent public access and use, as required by Title 52.

In 1895, the Legislature enacted legislation in Title 23 that requires the Division (then Commissioners) to report to the Legislature annually, “at the annual meeting thereof,” on all of its operations for the fiscal year.  Simultaneously, the Legislature enacted legislation in Title 52 that imposes a duty on all commissions that are required to present annuals report to the Governor or Legislature to present a copy of the report to the Governor on or before November 30th , and establishes a penalty for a failure to timely complete and present (officer responsible forfeits half of his or her salary from November 30th until the report is presented).  Title 52 also mandates that all commissions provide public access by: (1)posting a copy of the annual report on the internet, and (2)filing one electronic copy and at least one hard copy with the New Jersey State Library “for permanent public access and use.”

For the past 17 years, the Division has failed to issue timely annual reports and make them available to the public by November 30th (for the fiscal year ending June 30th):

  • For ten years in a row – from Fiscal Year 2000 through FY 2009 – the Division failed to even create an annual report.
  • In 2010, when the Division missed the November 30th deadline, and Appellant was compelled to file a law suit.  In response to the suit, the Division completed and posted a FY2010 annual report on the web.  The posting, although 31.7 months late, allowed the suit to be settled.
  • In FYs 2011 – 2014, despite the Division’s acknowledgement in the settlement that it had an annual reporting obligation, the Division failed to timely issue and make available annual reports to the public (i.e. FY2011 report was posted on the web 19.6 months late, FY2012 report posted 7.4 months late, FY2013 report posted 10.8 months late, and FY2014 report posted 6.4 months late).
  • In 2014, Appellants were compelled to file this lawsuit.
  • In 2015, while this lawsuit was still pending, the Division failed to issue and post the FY2015 annual report by the November 30th deadline, and Appellants amended the Notice of Appeal to add that failure.
  • In 2016, while this suit was awaiting oral argument, the Division failed to file and post the FY2016 annual report by the November 30th

The Division’s repeated and on-going failure to complete and make annual reports available to the public by the November 30th deadline not only violates the NJ statutes,  but causes real and significant harm to the public in terms of government transparency, participatory democracy, and the protection of wildlife which is a public resource.  Without timely annual reports, the public cannot know what the Division is doing and planning and where its tax dollars are being spent, cannot meaningfully participate in wildlife policy decision-making, and cannot advocate for humane treatment of wildlife.

Before and throughout this lawsuit, the Division has adamantly refused to acknowledge that it has any deadline to complete an annual report or make it available to the public. It contends as a legal matter that it can get to it when it gets to it.  The Division’s position violates the express requirements and Legislative intent of Titles 23 and 52, which require that all agencies timely issue annual reports and make them available to the public on the web and in the NJ State Library for “permanent public access and use.”

Dante DiPirro, animal lawyer, files suit challenging use of “enclosed” leghold traps in New Jersey

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Photo of raccoon caught in Egg Trap

Photo of raccoon caught in Egg Trap

February 22, 2016: Today, Animal welfare attorney, Dante DiPirro, of Hopewell NJ, filed a brief in the New Jersey Appellate Division challenging a regulation that would allow the use of “enclosed” leghold traps in New Jersey.  The use of leghold type traps has been banned by statute in the state since 1984. In the fall of 2015, the NJ Fish and Game Council  — at the urging of the dwindling number of trappers that still operate in the state — promulgated a new regulation that seeks to do an end-run around the statutory ban.  In the regulation, the Council legalizes the use of traps it calls “enclosed” foothold traps, which are in reality, traps in which the leghold mechanism (trigger, spring, steel jaws) are enclosed in an outer housing (made of metal or plastic) with a 2″ hole.  The animal places its arm/leg through the hole in the enclosure to get the bait which triggers the steel jaw to slam shut on the animal’s leg with  up to 60 pounds of force, and restrain the animal trapped and in pain for up to 2 days until the hunter returns to “finish off” the animal.  The addition of an enclosure with a hole does not protect raccoon, possum or pet cats from being trapped or from suffering severe injuries, but is designed to prevent hunting dogs from getting their paws crushed or injured in the trap.

The appellants in the suit include both New Jersey and national animal welfare and environmental groups: Animal Protection League of New Jersey; Animal Welfare Institute; Sierra Club; Associated Humane Societies; Unexpected Wildlife Refuge; Born Free USA; and Lawyers in Defense of Animals.

The Appellants’ Brief filed today highlights the Legislature’s intent to ban all traps of the steel-jaw leghold type because leghold traps function as “holding devices” which leave the animal in excruciating pain for hours or days, and the factual nature of the “enclosed” leghold traps which have the same essential design, and function, and cause the same harm, as other types of leghold traps.  The brief asks the Court to invalidate the regulations as conflicting with the statutory ban. Click on link below to read the Appellants’ brief.

Appellants Merits Brief LEGHOLD

Wildlife & animal groups file legal challenge to return of leghold traps in New Jersey

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On behalf of wildlife and animal welfare groups including the Sierra Club, the Animal Protection League of New Jersey, the Animal Welfare Institute, Born Free USA and Unexpected Wildlife Refuge, environmental attorney Dante DiPirro has filed a lawsuit challenging regulations proposed by the New Jersey Fish and Game Council that would allow trappers to use “enclosed foothold traps.”  The proposed traps are steel-jaw, leghold traps that have been modified to add an exterior metal or plastic housing with a hole through which the animal places its leg to access the bait and jaws of the trap.

Steel-jaw, leghold traps have been banned in New Jersey since the enactment of a statutory ban in 1984.  The lawsuit alleges that the rules are invalid because they conflict with the statute.

The groups have further filed a motion with the Department of Environmental Protection seeking a stay pending appeal.  A stay is necessary to prevent immediate irreparable harm and maintain the status quo until the Courts decide the challenge to the regulations.

For more information: http://awionline.org/content/organizations-file-motion-prevent-use-illegal-leghold-traps-new-jersey

Intervention in Exxon natural resource damages suit against Exxon could prevent the state of New Jersey from recovering only pennies on the dollar.

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The Court should allow NJ legislator and environmental groups to intervene in the natural resource damages suit against Exxon so that the state of New Jersey does not settle the suit for pennies on the dollar.

DEP, EXXON MOBIL MOVE TO BLOCK LESNIAK, ‘GREEN’ GROUPS FROM JOINING CASE

natural-resources damage suit.

http://www.njspotlight.com/stories/15/07/08/dep-exxon-mobil-move-to-block-lesniak-green-groups-from-joining-case/

Dante DiPirro, Esq. to participate in Solar Roundtable at Rutgers University

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Dante DiPirro, an  environmental lawyer and renewable energy lawyer, will be a panelist on a discussion of solar energy at Rutgers University on December 3, 2014. The discussion will include the current status of solar energy, the marketplace in New Jersey, and the future of solar energy in New Jersey and the United States. Other panelists include: Jeanne Fox, and attorney and former President of the NJ Board of Public Utilities; Pam Frank, of Gabel Associates; and Robert Kropp, Rutgers Professor and former Department of Energy employee. The roundtable will kick off at 6 pm at the Student Activities Center, 613 George Street, New Brunswick NJ 08903. The event is open to students, government officials, and members of the public.

Penn East Pipeline under Delaware River in Jersey would threaten drinking water, health & environment

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Dante DiPirro, Mr. Sustainable and an environmental lawyer,  opposes the fossil fuel industry’s proposed Penn East pipeline under the Delaware River and through environmentally sensitive areas of Hunterdon and Mercer Counties. Penn East Pipeline under Delaware River in Jersey would threaten drinking water, health & environment.  http://www.mr-sustainable.com/2014/10/02/penn-east-pipeline-under-delaware-river-in-jersey-would-threaten-drinking-water-health-environment/