In the Matter of Proposed Construction of Compressor Station (086428) (Statewide)

• Court: Supreme Court of New Jersey
• Decided: April 11, 2022
• Docket: A-44-21
• Status: Published

Opinion

FILED, Clerk of the Supreme Court, 11 Apr 2022, 086428

SUPREME COURT OF NEW JERSEY A-44 September Term 2021 086428

In the Matter of Proposed Construction of Compresso r Station (CS327), Office Building and Appurtenan t Structures, Highlands Applicability Determination, ORDER Program Interest No.: 1615-17- 0004.2 (APD200001)

(Tennessee Gas Pipeline Company, L.L.C. - Appellant)

Tennessee Gas Pipeline Company, L.L.C. (Tennessee), is a "natural gas

company" that transports natural gas in interstate commerce and has a planned

project designed to increase the transportati on capacity on its pipeline system

to meet its customers' needs. Because the project is in a preserved area

established by the Highlands Water Protection and Planning Act, Tennessee is

required to obtain either a Highlands Applicability and Water Quality

Manageme nt Plan Consistency Determinat ion (HAD) or a Highlands

Preservatio n Area Approval from the New Jersey Departmen t of

Environmental Protection (NJDEP). See N.J.A.C. 7:38-2.2.

On August 28, 2020, Tennessee applied to NJDEP for an HAD.

Tennessee sought confirmation that its project was exempt from the Highlands

Act pursuant to N.J.S.A. 13 :20-28(a)(l 1), which authorizes "the routine FILED, Clerk of the Supreme Court, 11 Apr 2022, 086428

maintenance and operations, rehabilitation, preservation, reconstruction,

repair, or upgrade of public utility lines, rights of way, or systems, by a public

utility, provided that the activity is consistent with the goals and purposes of

this act."

On June 23, 2021, NJDEP notified Tennessee the project qualified under

N.J.S.A. 13:20-28(a)(l 1). The NJDEP also determined the project was

consistent with the Statewide Water Quality Management Planning Rules.

On August 13, 2021, Food & Water Watch, the New Jersey Highlands

Coalition, and the Sierra Club (collectively, appellants) filed a Notice of

Appeal and Case Information Statement in the Appellate Division challenging

NJDEP's determination. On August 30, 2021, Tennessee filed a motion to

intervene as of right pursuant to Rule 4:33-1. The Appellate Division denied

Tennessee's initial motion and then denied its motion for reconsideration.

On November 12, 2021, Tennessee filed a motion for leave to appeal,

which this Court granted. We also granted the collective motion filed by the

New Jersey Builders Association, New Jersey State Chamber of Commerce,

New Jersey Utilities Association, the New Jersey Chapter of NAIOP, the

Commercial Real Estate Development Association, and the New Jersey

Business & Industry Association seeking leave to appear as amici curiae.

2 FILED, Clerk of the Supreme Court, 11 Apr 2022, 086428

The case came before the Court for oral argument on March 29, 2022,

with Tennessee arguing that it met the standard for intervention as of right

pursuant to Rule 4:33-1 and appellants arguing that it failed to meet that

standard. Rule 4:33-1 provides that

[u]pon timely application anyone shall be permitted to intervene in an action if the applicant claims an interest relating to the property or transaction which is the subject of the action and is so situated that the disposition of the action may as a practical matter impair or impede the ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.

Tennessee submits it has an undisputed economic interest in the appeal

because it has invested "millions of dollars" in this "approximately $246.3

million" project. According to Tennessee, any decision that sets aside the

permit would "potentially delay the construction of its project" and impact its

ability to meet its contractual obligations. As an alternative to its argument

under Rule 4:33-1, Tennessee argues that the Appellate Division should have

granted its motion for permissive intervention under Rule 4:33-2 because its

underlying interests and status as the permittee make it "indispensable to this

appeal."

Amici, although supportive of Tennessee's claim that it met the Rule

4:33-1 standard, also contended that Tennessee should not have to participate

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as an intervenor but rather should have been named as a party in appellants'

Notice of Appeal pursuant to Rule 2:5-l(d).

Rule 2: 5-1 ( d) provides in relevant part that

[a]n appeal to the Appellate Division to review the decision, action or administrative rule of any state administrative agency or officer is taken by serving copies of the notice of appeal on the agency or officer, the Attorney General and all other interested parties, and by filing the original of the notice with the Appellate Division.

[( emphasis added).]

Based on the role Tennessee played in obtaining this administrative

relief from the NJDEP, Tennessee is an "interested party" under Rule 2:5-l(d)

and should have been included as a party in the Notice of Appeal and served

accordingly. Indeed, in the course of oral argument before this Court,

appellants' counsel conceded Tennessee was an "interested party" under the

Rule. Counsel also attempted to file an amended Notice of Appeal and Case

Information Statement that included Tennessee as an interested party. His

efforts were rejected by the Appellate Division, however, because by that time

the case was before this Court.

Against this backdrop, we hold appellants should have included

Tennessee as an "interested party" pursuant to Rule 2: 5-1 ( d) when they filed

their initial Notice of Appeal and Case Information Statement in the Appellate

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Division. We accordingly decline to reach the arguments advanced under

Rules 4:33-1 and -2. We remand the case to the Appellate Division to permit

appellants to file an amended Notice of Appeal and Case Information

Statement that names Tennessee as an interested party pursuant to Rule 2:5-

1(d). The Clerk of the Appellate Division will thereafter issue a scheduling

order that will direct the parties on how to proceed.

WITNESS, the Honorable Stuart Rabner, Chief Justice, at Trenton, this

11th day of April, 2022.