Monday, February 18, 2013

Countdown to Stop a Pipeline 10 – Pipeline Company Rushes in to Cut the Forest – Citizens Stand in Protest

Less than 24 hours after FERC approval was granted for tree clearing of “Pipeline Loop 323” that would cut through the Delaware River Watershed, Tennessee Gas Pipeline (TGP) chainsaw crews, arriving in trucks with Wisconsin license plates, began invading the forests and cutting thousands of 70-year old trees to make way for the Northeast Upgrade Pipeline project (NEUP).  The NEUP is being constructed to carry fracked shale gas from drilling zones in Pennsylvania across into New Jersey and on to other markets. 

TGP clearly rushed its tree clearing plans in order to avoid any possibility that they might be stopped by the efforts of citizens to get the Delaware River Basin Commission (DRBC) to step in and require a DRBC review and docket before the project could proceed within the boundaries of our watershed.
Why would TGP be so fearful? 

The past two weeks the Delaware Riverkeeper Network along with a rising tide of concerned citizens have been demanding their intervention and we are on solid legal and moral footing when doing so.

The DRBC Rules of Practice and Procedure require DRBC review and docketing for pipeline projects that “pass in, on, under or across an existing or proposed reservoir or recreation project area as designated in the Comprehensive Plan.”  The NEUP is one such pipeline project -- it passes through the Delaware State Forest and High Point State Park, both Comprehensive Plan areas.  Therefore DRBC's obligation to conduct a review that considers impacts on water resources is clear, and mandatory.  

DRBC has acknowledged its failure to apply this element of the Rules of Practice and Procedure (i.e. with regards to the passage of pipelines through Comprehensive Plan areas) for two other upriver pipeline projects — namely the TGP 300 Line (of which the NEUP is a part) and the 1278 Columbia Line.  

In a letter dated January 30, 2013, DRBC recognized its failure to apply this Comprehensive Plan provision to those two projects.  Its remedy is to apply an after-the-fact review and docket for the projects.  But I and the Delaware Riverkeeper Network have made it clear, this review must be applied to the NEUP as well—a review that does not have to be after-the-fact but can happen now before the pipeline is installed. 

The review that led to DRBC’s revelation of its legal error began well after DRBC refused such review of the 300 Line, the 1278 Line and the NEUP, and so it clearly applies equally to all three. (To see the DRBC Jan 30 letter and my immediate response:

In addition, DRBC's decision to review the TGP 300 Line necessarily applies to the NEUP because the NEUP is a part of that project – the NEUP does not stand alone here. 

In two letters, the DRBC has attempted to say it has performed its legal obligations on the NEUP because it issued a water withdrawal docket for the project in July, 2012.  While a water withdrawal docket was approved by the DRBC for the NEUP, the passage of that water withdrawal docket does not displace the DRBC’s legal obligation to review the many aspects of a project that invades Comprehensive Plan areas.   This would be like a state agency saying that because they issued a wetlands-fill permit for a project they don’t also have to permit it for discharging massive amounts of pollution to the air – they are different issues required by different parts of the agency’s laws and so fulfilling one doesn’t get the agency off the hook for fulfilling the other.

And there is a very easy path for the DRBC to remedy all this as it applies to the NEUP.  There are two provisions in that July 2012 water withdrawal docket it issued for the NEUP which allow it to re-open the permit to fix things when necessary, including when they have made a mistake or get new information that demonstrates a project will harm the water resources of our watershed and communities. 
Ø  Under one of these provisions the DRBC “reserves the right to amend, alter or rescind any actions taken hereunder in order to insure proper control, use and management of the water resources of the Basin.” 
Ø  Under the other provision, “The Executive Director may modify or suspend this approval or any condition thereof, or require mitigating measures pending additional review, if in the Executive Director’s judgment such modification or suspension is required to protect the water resources of the Basin.”

The water resources of the Delaware River Basin are clearly suffering here – and will suffer dramatic and unnecessary harm if the DRBC does not step in and exercise its legal authority to do all it can to avoid such harm – and there is a lot it can do. 

Citizens and organizations from around the region are joining us in our call for the DRBC to act.  Please send your email to the DRBC and all its Commissioners today.

March 6 is their next meeting where the DRBC Commissioners can instruct the Executive Director, Carol Collier, to intervene if she cannot find the courage to do so on her on.  So please plan to take a day from your life to join us on March 6, the day the DRBC will have the chance to begin to make this right.  We won’t be able to get the 70-year old trees and the fully healthy forest back, but there is a lot that can be done to avoid more harm and to fix the damage already inflicted.

And please know, the Delaware Riverkeeper Network and our colleagues including the NJ Highlands Coalition and the NJ Sierra Club, continue to press the legal actions we have in the works to find some protection from this project, and to set strong precedent for all future pipeline projects here and across the nation.

An outdoor rally was held on February 18 in Montague, NJ where an 87-year old resident is anguished by the destruction inflicted by the Tennessee Gas Pipeline Company who took his land through eminent domain.  See video interview here:

And take a look at the release put out by citizens working to blockade the pipeline: and to see what else might be in the works.

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