In a decision favoring the business community, the New Jersey Supreme Court has reversed a lower court ruling against a gas pipeline company planning to construct a compressor station on its existing right-of-way at a former quarry in the Highlands preservation region.
The case centered on the interpretation of the statutory language of the Highlands Water Protection and Planning Act. The state’s highest court agreed with McCarter & English partner David Kott, who represented NJBIA in an amicus brief filed on behalf of the business community.
“Simply stated, the Highlands Act does not preclude development in this area; it limits only development that is incompatible with preservation and would therefore cause a decline in the environmental quality of the region,” Justice Michael Noriega wrote in the decision.
Tennessee Gas Pipeline Co., which owns and operates an interstate natural gas transmission system, plans to build various compressor stations along its transmission lines as part of the East 300 Upgrade Project aimed at maintaining increased flow rates. One of those proposed compressor stations, No. 327, is at an abandoned quarry in West Milford, where the company has an existing right-of-way.
The West Milford site is within the Highlands preservation region. However, neither the Highlands Water Protection & Planning Council nor the state Department of Environmental Protection opposed the project. The DEP’s 2021 “Highlands Applicability Determination” indicated that the project qualified for Exemption 11 under the Highlands Act and noted that the former quarry is a “historically disturbed” site with “disconnected and nonfunctional” wildlife habitats.
The Washington, D.C.-based consumer advocacy group Food & Water Watch appealed DEP’s decision, arguing that language from Highlands Preservation Act should be narrowly construed to require all upgrades at existing sites to be “routine.” The lower appellate court had agreed and vacated DEP’s determination.
However, according to the Supreme Court's interpretation, projects are exempt from Highlands regulations if they qualify as “routine maintenance and operations, rehabilitation, preservation, reconstruction, repair or upgrade of public utility lines, rights of way or systems by a public utility,” provided these activities align with act goals. The term "routine" applies only to "maintenance and operations," not all listed exempted activities.
“The plain language of Exemption 11 leads us to conclude that ‘routine’ modifies only ‘maintenance and operations’ and does not modify ‘upgrade,’” stated by Supreme Court decision.
To read more about The Matter of Proposed Compressor Station (CS327), follow this link.
