The New Jersey Board of Public Utilities (BPU) has denied a request by the Townships of Middletown, Hazlet, and Holmdel (collectively, the “Joint Municipal Group,” or JGM) for interlocutory review of an administrative law judge’s (ALJ) Jan. 13 order, which denied the JGM’s motion to dismiss Jersey Central Power and Light’s (JCP&L) petition involving the Monmouth County Reliability Project.
As noted in the BPU’s order – which is dated March 24, and is to become effective on April 3 – JCP&L last August filed its petition with the BPU seeking a determination that the proposed 230-kV transmission line between New Jersey Transit’s (NJT) Aberdeen substation in Aberdeen, N.J., and JCP&L’s Red Bank substation in Red Bank, N.J., as well as associated upgrades to JCP&L’s Taylor Lane substation in Middletown, N.J., are reasonably necessary for the service, convenience, or welfare of the public, and therefore JCP&L is entitled to relief from complying with the zoning, site plan review, and other municipal land use ordinances or rules passed by municipalities along the proposed project route under authority of Title 40, the New Jersey Municipal Land Use Law (MLUL).
According to JCP&L, the BPU said, the project would enhance the reliability and redundancy of JCP&L’s transmission and distribution system in Monmouth County.
The project’s route, according to JCP&L, is about 10 miles long, and would be built within an existing NJT right of way (ROW), with the remaining portion built on an existing JCP&L ROW. The BPU added that JCP&L has noted that a “minimal” additional ROW would be necessary where the project crosses the Navesink River and parallels the existing NJT railway bridge and then follows the existing ROW into the NJT Red Bank station. JCP&L has also said that additional easement rights would be necessary for vegetation management and temporary ROW agreements with private and/or public entities, and that most of the rights needed are limited to vegetation management.
The JMG last October filed its motion on the basis that JCP&L lacks standing since it does not have an easement for use of the NJT ROW, the BPU said. The JMG asserted that an easement agreement between JCP&L and the NJT regarding the project expired, and that JCP&L does not have a right to exercise its condemnation powers with respect to the NJT ROW.
The BPU added that JCP&L last November opposed that motion, asserting that the easement agreement referred to by the JMG is unrelated to the project, and that the petition and supporting testimony do not state that JCP&L would seek to condemn NJT property. JCP&L said that it is in the process of acquiring the necessary NJT approvals to build the project in the NJT ROW, and that it does not have to obtain the NJT’s approval before proceeding with the instant petition before the BPU under the MLUL.
The ALJ, in its January order, denied the JMG’s motion, finding that JCP&L’s petition under the MLUL before the BPU is neither speculative nor hypothetical.
The ALJ noted that the New Jersey Supreme Court has issued an opinion on the complexity of regulatory “chicken and egg” approvals such as this matter; that court case involved the issue of whether a railroad company needed to obtain the right to use a segment of track belonging to another railroad company before obtaining a determination about the use. Relying on that case, the ALJ concluded that the BPU’s approval “is a necessary, even if not sufficient, condition for the project to be constructed.”
Subsequently, the JMG filed a motion to stay discovery until a decision was reached on the motion to dismiss. The BPU added that in light of the fact that a decision was rendered on the motion to dismiss in January, the ALJ denied the motion to stay by an order dated Feb. 8.
The JMG on Feb. 16 filed its request for interlocutory review of the denial of its motion to dismiss and to stay the proceedings, arguing that Monmouth County taxpayers have incurred significant costs and expenditures of time proceeding with an aggressive and extensive discovery schedule for approval of a project that cannot be built until JCP&L obtains approval from the NJT.
The BPU added that the JMG acknowledged the “chicken and egg question,” by asking, “should the company be required to negotiate with all affected landowners for land rights before filing a petition? Or should it negotiate after approval, with the tool of eminent domain authority waiting in the event JCP&L is unable to obtain the rights?”
The JMG asserted that JCP&L’s proposed path for the transmission line “cannot be used” because JCP&L “gave up all rights to use” the NJT ROW more than 20 years ago, and construction would require the exercise of condemnation powers that JCP&L cannot use against the NJT.
The BPU added that the JMG asserted that the petition misrepresents the nature of the rights that JCP&L must still obtain, in that it failed to state that JCP&L does not currently have the right to use the NJT’s ROW for the project.
JCP&L in a Feb. 22 filing said that the BPU should deny the JMG’s request because the interlocutory appeal raises no new legal or factual arguments.
JCP&L added that the JMG decided to intervene in the matter, and claimed that the same statutory provision that permits the intervention of a municipality in matters before the BPU makes clear that such intervention should be undertaken at the municipality’s own cost and expense.
The BPU also said that according to JCP&L, since the filing of its petition, it has been clear that it required NJT approval and the issuance of the appropriate NJT permit to build the project on NJT ROW. JCP&L said that it is in the process of acquiring the necessary NJT approvals to build the project in that ROW, and claimed that it never represented that it would seek to use eminent domain to acquire the right to use the NJT ROW, the BPU said.
JCP&L further stated that there is no basis in the statutes or case law that a utility must secure all other permits and property rights before proceeding with a petition to the BPU under the MLUL.
The BPU also noted that intervenor Residents Against Giant Electric (RAGE) on March 21 filed a statement, along with a certification of an individual in support of the JMG’s request for interlocutory review and the imposition of a stay. RAGE also submitted a cover letter dated March 16, and 2,000 documents purportedly related to a request under the Open Public Records Act (OPRA) served upon the NJT that were not submitted to the ALJ at the time the JMG’s motion to dismiss was pending at the Office of Administrative Law (OAL), the BPU said.
The BPU said that RAGE argued that, under the MLUL, JCP&L lacks standing to pursue the petition because it does not own an enforceable interest for use of the NJT ROW. RAGE said that it is undertaking extensive and continuing efforts to pay attorneys and experts, and maintaining an expensive and continuous education and outreach effort. The BPU also said that RAGE alleged that JCP&L has been dilatory in seeking the BPU’s approval and permission from the NJT to use the NJT ROW. RAGE argued that the documents it received from the NJT contained relevant information about the project’s design and precise location and will need additional time to analyze the documents, the BPU said.
JCP&L in a March 23 filing said that the BPU should not consider RAGE’s statement, claiming that the statement is untimely, unauthorized under the Uniform Administrative Procedure Rules, and was submitted in an attempt to delay the proceedings. JCP&L said that it has not been dilatory in seeking the BPU’s approval of the project and/or obtaining permitting to use the NJT ROW, the BPU added.
Discussing its findings, the BPU said that RAGE’s submission of about 2,000 documents is not appropriately before the board because it was submitted as an attachment to a responsive brief in support of a request for interlocutory review. The BPU said that it makes no judgment as to the probative value, for instance, of such documents because such issues remain before the ALJ.
The BPU also noted that the primary issue raised by the JMG concerns whether JCP&L has the ability to build the project along the proposed route without the requisite approvals for use of the NJT ROW. JCP&L has represented that it is in the process of obtaining the necessary approvals and permits from the NJT for the construction of the project in the NJT ROW, and as the ALJ indicated, it is premature to address the merits of the petition on a motion to dismiss.
The BPU said that if it “were to accept JMG’s position, any petition for approval of a project that involves multiple land use and/or governmental approvals would never be able to proceed, as a result of the ‘chicken and egg’ dilemma.”
Evidentiary hearings – which will provide the BPU with the information necessary when reviewing the matter after the ALJ renders an initial decision – are scheduled to occur at the OAL in April, at which time the parties will be able to present testimony, cross-examine witnesses, and file post-hearing briefs, the BPU said.
Among other things, the BPU said that the matter should remain with the ALJ who has the power to preside over prehearing activities, conduct hearings, develop the record, and render an initial decision dispositive of the issues before the OAL.
JCP&L is a subsidiary of FirstEnergy (NYSE:FE).