New Jersey BPU Adopts Community Solar Regulations

On February 19, 2019 the New Jersey Board of Public Utilities (“BPU”) formally adopted its proposed regulations (the “Regulations”) regarding the Community Solar Pilot Program (the “Pilot Program”).  Although there are some minor clarifications, and 339 published comments, there are no material changes to the proposed regulations that were published for comment on October 1, 2018.

The first year of the Pilot Program began upon adoption of the Regulations on February 19, 2019, and will end on December 31, 2019.   The remaining two years of the Pilot Program will be calendar years 2020 and 2021.

The next step for the BPU will be to adopt the proposed regulations regarding the form of application which were published on November 28, 2018, and to begin accepting applications.

For further information contact the author. 973-222-1855


Energy issues dominate the hearing schedule in Congress this week.

A House and Senate conference committee on comprehensive energy legislation is scheduled to meet formally for the first time on Thursday. Members will be working out the differences between their two versions of legislation that could be the first update to federal energy policy since 2007. The Senate passed its bill with overwhelming bipartisan support in April, while the House narrowly passed its own version of energy modernization legislation on a party-line vote, meaning there will be significant issues for the conference committee to work through this fall.

The House Energy and Commerce Subcommittee on Energy and Power is scheduled to meet on Wednesday to review the Federal Power Act, particularly the Federal Energy Regulatory Commission and electricity markets over the past 20 years.

There are two House Foreign Affairs hearings scheduled on Thursday afternoon that are focused on energy markets. The Foreign Affairs Subcommittee on the Middle East and North Africa will hold a joint hearing with the Energy Subcommittee of the House Committee on Science, Space and Technology to discuss energy resources in the Eastern Mediterranean. The Foreign Affairs Subcommittee on Asia and the Pacific is also scheduled to meet to discuss opportunities to advance U.S. energy policy in Asia, particularly the region’s dependence on liquefied natural gas from the United States and the economic and security interests involved.

On Friday morning, the House Oversight and Government Reform Subcommittee on Transportation and Public Assets will hold an oversight hearing on the Federal Emergency Management Agency’s response to the devastating flooding that occurred in Louisiana in August. The agency has approved more than $100 million in disaster relief grants for flood victims, but Congress may be asked to provide additional emergency funds to assist with the recovery effort.

While not Energy related per se., on Thursday, the House Financial Services Subcommittee on Oversight and Investigations will meet to discuss the Obama administration’s $400 million cash payment of U.S. taxpayer funds to Iran that has been linked to the release of several U.S. hostages. The payout has come under intense scrutiny, particularly from congressional Republicans. The hearing will focus on the $400 million cash payment and the implications on U.S. efforts to inhibit terrorism financing.

The Iran payout is also the subject of a hearing in the House Judiciary Committee on Wednesday. The Judiciary Subcommittee on the Constitution and Civil Justice is scheduled to hold an oversight hearing on the lack of transparency on money from the Judgment Fund, a permanent Treasury Department account used to pay judgments and claims against the United States.

House Considers Sweeping Energy Bill

Republicans on the House Energy and Commerce Committee released a long-awaited comprehensive energy bill late Monday that implicates pipelines, the electric grid and energy efficiency.

The panel’s Energy and Power subcommittee on Wednesday will mark up the 95-page bill that is designed to mirror a similar effort in the Senate.

Republicans and Democrats have thus far avoided loading the bill with partisan provisions that risk derailing the legislation- it steers clear, for example, of calling for an end to the 40-year-old ban on exporting crude oil, language that might lead many Democrats to reject the bill if it were included.

A committee aide expected broad bipartisan support for the bill when the subcommittee votes. (Credit AP).

Still, the legislation addresses a number of policy areas that have long been simmering on Capitol Hill.

The bill seeks to streamline permitting decisions for interstate natural gas pipelines, a move that proponents say is necessary to ramp up infrastructure that’s failed to keep pace with the boom in shale gas production.

On electric reliability, the bill would give broad discretion to power plants to relax environmental rules “to meet the emergency and serve the public interest” if federal regulators deem electric reliability is severely threatened.

The bill also amends a 1978 federal law by directing electric utilities to develop a plan to withstand power outages, using as smart grid technology to remotely locate and repair problems, distribute power systems and self-sustaining “microgrids,” that exist largely apart from the traditional electric grid, by linking disparate energy sources. The change also implores state regulators to consider approving rate increases so utilities can pass costs onto customers to pay for those investments.

Another provision would give the Energy secretary authority to step in to declare emergency measures when the electric grid is under cyberattack. The move has been long sought by federal regulators and lawmakers on both sides of the aisle to clear up confusion the locus of authority of the nation’s electric grid infrastructure in such situations.

The nation’s emergency energy supplies and how they’re distributed also would get a revamp, as natural disasters such as Hurricane Sandy in 2012 exposed shortcomings. The bill  calls for submitting a plan to create a “Strategic Transformer Reserve” to place backup electric infrastructure in various locations in case major electric grid assets are damaged, a concern that’s mounted following an armed attack at a San Jose electric substation in 2013.

Lastly, the bill calls for studying regional electricity systems that might inform how best to build new energy infrastructure such as natural gas pipelines and transmission lines to connect renewable power to the grid.

—By Martin J. Milita, Jr., Esq. Senior Director

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Please feel free to contact the author or your other Duane Morris Government Strategies LLC contact to learn more about this article and what it may mean to you.

About Duane Morris Government Strategies, LLC (DMGS):

Comprised of 19 experienced professionals representing U.S. and foreign clients at the federal, state and local levels, DMGS is as an ancillary business of international law firm Duane Morris LLP, one of the 100 largest law firms with more than 700 attorneys in the U.S. as well as in the UK and Asia. The firm operates in eight offices including Newark, NJ; Trenton, NJ; Albany, NY; Harrisburg, PA; Philadelphia, PA; Pittsburgh, PA; Columbus, OH; and Washington, DC.

DMGS offers a full range of government relations and public affairs services, including lobbying, grant identification/writing/administration, development finance consulting, procurement, grassroots campaigning, public relations, and crisis planning/crisis management needs.

NJ Lawmakers Pass Resolution Against $1B Pipeline Project

The New Jersey Senate on Monday passed a resolution in opposition to the proposed $1 billion, 178-mile Pilgrim Pipeline set to carry oil from the Bakken Shale through New Jersey and New York, urging permitting agencies to reject the project as currently proposed.

The resolution, proposed by Sens. Richard J. Codey, D-Essex, and Tom Kean Jr., R-Morris, calls on the U.S. Army Corps of Engineers, the New Jersey Highlands Water Protection and Planning Council, and other federal, state and local commissions reviewing the pipeline to reject it as currently proposed, positioning the pipeline as a threat to communities and water sources along its route.

“As proposed, the pipeline passes through densely populated, environmentally sensitive, and preserved lands, and any spill or incident involving this highly explosive fuel would have disastrous consequences to the New Jersey and New York residents, communities and the environment along that route,” Codey said in a statement.

The proposed pipeline, which will cost an estimated $900 million to $1 billion dollars to build, would run two parallel pipelines from Albany, New York, to Linden, New Jersey, according to Pilgrim Pipeline Holdings LLC’s website.

At least part of the 178-mile route would pass through the New Jersey Highlands Region, considered “an exceptionally valuable” area that is protected by the New Jersey Highlands Water Protection and Planning Act and the Highlands Conservation Act, the senators said in a press release.

The resolution will be passed on to the state assembly, according the news release. There, and in the state senate, another bill concerning the Pilgrim Pipeline is still in committee, according to the chief of staff for Assemblyman John F. McKeon, D-Essex. (Credit AP).

McKeon and assembly member Mila Jasey, D-Essex, proposed the bill in February. The bill would make companies like Pilgrim show the New Jersey Board of Public Utilities that pipeline projects are in the public interest before they could exercise eminent domain against a private property.

Current law doesn’t expose private pipeline companies to the same BPU scrutiny as public utility pipelines when they want to access property for its use, according to the lawmakers.

By: Martin J. Milita, Jr. Esq., Sr. Director.

Please feel free to contact the author or your other Duane Morris Government Strategies LLC contact to learn more about this article and what it may mean to you.

About Duane Morris Government Strategies, LLC (DMGS):

Comprised of 19 experienced professionals representing U.S. and foreign clients at the federal, state and local levels, DMGS is as an ancillary business of international law firm Duane Morris LLP, one of the 100 largest law firms with more than 700 attorneys in the U.S. as well as in the UK and Asia. The firm operates in eight offices including Newark, NJ; Trenton, NJ; Albany, NY; Harrisburg, PA; Philadelphia, PA; Pittsburgh, PA; Columbus, OH; and Washington, DC.

DMGS offers a full range of government relations and public affairs services, including lobbying, grant identification/writing/administration, development finance consulting, procurement, grassroots campaigning, public relations, and crisis planning/crisis management needs.

NJ DEP Looks To Ease Permitting In Flood Hazard Areas

New Jersey Gov. Chris Christie’s administration on Monday announced regulatory changes for development in flood hazard areas that would streamline permitting and reduce restrictions on construction near surface waters, among other revisions that some environmentalists argue would harm waterways and flood prevention efforts.

Officials with the New Jersey Department of Environmental Protection said the “common sense” changes to its rules under the Flood Hazard Area Control Act are part of the administration’s broader efforts to cut red tape and denied that they represent a rollback in ecological or flood mitigation protections. The DEP will field public comments on the proposed revisions, which were part of the state Register on Monday and separately announced by the department, through July 31.

“Our streams and rivers provide the state with many benefits, but many aspects of the way the rules are currently structured have not achieved their stated goals,” DEP Commissioner Bob Martin said in a statement. “These rule changes will correct those problems while maintaining our high standards for protection of our waterways and mitigation of flooding.”

The amendments addressed in a 936-page notice from the DEP include converting six existing general permits to a new category of permits — general permits-by-certification — and another four existing general permits to permits-by-rule.

The new category of permits would allow someone to use an online portal and secure permission for 15 specific activities by making a series of certifications, according to Vincent Mazzei, a supervising environmental engineer with the DEP. The regulator would follow up with an inspection later, Mazzei said. Meanwhile, permits-by-rule cover smaller activities that are automatically entitled to a permit, according to Mazzei.

Requirements for so-called riparian zones — where regulated waters meet land — would also see changes.

The DEP said it wants to increase the total amount of vegetation that can be disturbed for roadways, utility lines, buildings and other projects to better reflect the department’s permitting experiences. The department also wants to increase the area of riparian zone vegetation that can be disturbed as part of activities that don’t harm their overall functionality, including work within roadway or utility easements.

Additionally, the proposal would free more applicants from having to request hardship exceptions when strict compliance with riparian zone limits would create an undue hardship. Site remediation projects, landfill closures and other construction activities not addressed in the existing rules would see allowances for riparian zone disturbances, while applicants would no longer need a hardship exception if they can show that a project “cannot feasibly meet the limits on riparian zone disturbance.”

In those cases, an applicant would have to prove that there’s no practicable alternative and take steps to mitigate disturbances, according to Mazzei.

Also on the table is the repeal of 300-foot “special water resource protection areas” under the state’s stormwater management rules. Reconciling the requirements for those areas with separate 300-foot riparian zones that the flood hazard rules establish for ecologically significant waters and certain tributaries has created confusion for regulators and the regulated community alike, the department said. Moving forward, the DEP wants to create a hybrid buffer with uniform standards that apply to the same set of surface waters.

The department itself highlighted a proposal to hand off the enforcement of soil erosion and sediment control standards to local Soil Conservation Districts when it comes to areas with highly acidic soils. Those areas largely run parallel to the New Jersey Turnpike corridor in the central and southern parts of the state, according to the DEP.

The changes aren’t sitting well with some in the environmental community. The new permitting standards would slash important oversight, while certain protections for high quality streams would be eliminated, according to Jeff Tittel, director of the New Jersey Sierra Club.

“In a state so devastated by flooding, the DEP is heading in the wrong direction,” Tittel said in a statement. “We should be adding protections to protect people and property, instead we are weakening them putting more people and protect in harm’s way. These rules are an attack on clean water and make NJ will be vulnerable to the next flood and future damages.”

The revised rules received a warmer reception from the New Jersey Builders Association, which welcomed changes such as the proposed consolidation of stormwater management and flood hazard rules.

“The proposal is another initiative by the department to organize, align, and standardize the underlying permitting rules for a significant and complex land use program,” the association said in a statement.

House Sends Keystone Approval Bill To President Obama

The U.S. House of Representatives on Wednesday passed a bill that would force the federal government to approve TransCanada Corp.’s controversial Keystone XL oil pipeline, a move President Barack Obama has warned he will Veto.

Republicans in the House with some Democratic support pushed through the bill, that the Senate passed two weeks ago. The Senate’s road was much tougher, with the passage process drawn out as Democrats fought unsuccessfully to stall it. As the Keystone bill now now heads to Obama’s desk, it is doubtful the Senate will be able to muster the 67 votes needed to override the president’s veto.

The measure passed by a 270-152 vote, with 29 Democrats joining 241 Republicans in voting for passage and one Republican joining 151 Democrats who opposed it.

Obama has based his opposition to the pipeline on a variety of issues, including state court litigation and the U.S. State Department’s ongoing review of TransCanada’s application.

Comments from various federal agencies recently have been submitted to the State Department, including from the U.S. Department of Defense, which said it has no problems with the pipeline. The U.S. Environmental Protection Agency, however, said the State Department should reconsider its supplemental final environmental impact statement. And the State Department previously found that approving the pipeline would not have much of an effect on GHG emissions.

The Keystone bill dominated the first few weeks of the new Congress and prompted a wide-ranging discussion of its benefits and drawbacks. Before the Senate voted, it took up a dozen amendments to the legislation, passing only one concerning energy retrofitting for schools. Democrats had refused to end debate on the bill until all pending amendments had been voted on.

Some of the other failed amendments included removing land from consideration as wilderness areas unless Congress acts on them within a year; campaign finance disclosure requirements for companies that stand to make more than $1 million from the tar sands; removing the lesser prairie chicken from the threatened species list and speeding up the approval process for liquefied natural gas exportation to World Trade Organization members.

Keystone XL is intended to carry tar sands crude oil from Alberta, Canada, to the Gulf Coast, with a southern 485-mile portion of the proposed span running from the crude market hub at Cushing, Oklahoma, to refineries near Port Arthur, Texas, having already been approved.

The pipeline still faces a snag in South Dakota, where a project permit expired last June. TransCanada is currently pursuing a recertification of the permit but has been met with firm opposition by local environmental and community groups.


Conservation, environmental and Smart growth groups on Friday urged New Jersey Gov. Chris Christie to veto plans to consolidate an agency that has overseen development and environmental improvements in the Meadowlands and overhaul a regional tax sharing system, contending that the changes would undermine decades of balanced planning.

New Jersey Future and 10 other organizations sent a letter to Christie spelling out concerns over the legislation that would fold the New Jersey Meadowlands Commission — a zoning and planning agency for a 30.4-square-mile area in Bergen and Hudson counties — into the New Jersey Sports and Exposition Authority. The NJSEA manages the Meadowlands sports complex in East Rutherford, which includes MetLife Stadium and other facilities.

The commission was created to encourage orderly development, protect environmental assets and provide solid waste facilities, but the bill that the state Legislature sent to the governor’s desk in December would fundamentally weaken the Meadowlands program, according to the groups, which include the New Jersey Sierra Club, the New Jersey Highlands Coalition, the Regional Plan Association, the New Jersey Conservation Foundation and Environment New Jersey.

Fourteen towns in Bergen and Hudson counties are part of the Meadowlands tax sharing program. Under the legislation, municipalities that currently make payments into the program — Carlstadt, Little Ferry, Lyndhurst, Moonachie, North Bergen, Secaucus and South Hackensack — would no longer do so because of a 3 percent use assessment on the revenues from hotel room occupancies in all 14 towns, according to lawmakers. The hotel use assessment would generate about $6.9 million to $10.3 million annually in additional revenue, according to the Office of Legislative Services.

Municipalities that currently receive money from the program — East Rutherford, Jersey City, Kearny, North Arlington, Ridgefield and Rutherford — would continue to see that funding, lawmakers have said. The tax sharing program was devised in the 1970s to address the impact of regional zoning in the Meadowlands area, according to lawmakers.

However, groups fighting the bill note that it leaves the state on the hook for subsidy payments if the program comes up short.

New Jersey Future and its allies further contend that the legislation — which was first introduced on Dec. 11 and sponsored by lawmakers including Assembly Speaker Vincent Prieto, D-Hudson —  jeopardizes Liberty State Park in Jersey City by giving the NJSEA the green light to undertake projects there and sideswipes the Meadowlands Environmental Research Institute and its work to restore marshes and other natural features by shifting its responsibilities to a not-for-profit organization.

By combining the Meadowlands Commission with the NJSEA, the legislation would encourage greater government efficiencies in the pursuit of economic growth for the region, sponsors have said.