IN THE MATTER OF THE PETITION OF NEW JERSEY NATURAL GAS COMPANY FOR A DETERMINATION CONCERNING THE SOUTHERN RELIABILITY LINK PURSUANT TO N.J.S.A. 40:55D-19 AND N.J.S.A. 48:9-25.4 (NEW JERSEY BOARD OF PUBLIC UTILITIES) (CONSOLIDATED)

• Court: New Jersey Superior Court Appellate Division
• Decided: April 29, 2021
• Docket: A-3666-15/A-3752-15
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NOS. A-3666-15 A-3752-15

IN THE MATTER OF THE PETITION OF NEW JERSEY NATURAL GAS COMPANY FOR A DETERMINATION CONCERNING THE SOUTHERN RELIABILITY LINK PURSUANT TO N.J.S.A. 40:55D-19 AND N.J.S.A. 48:9-25.4. ______________________________

Argued January 20, 2021 – Decided April 29, 2021

Before Judges Yannotti, Haas and Natali.

On appeal from the New Jersey Board of Public Utilities, No. GO15040403.

Paul Leodori argued the cause for appellant Pinelands Preservation Alliance (Paul Leodori, PC, attorney; Todd M. Parisi, on the brief).

Daniel A. Greenhouse argued the cause for appellant Sierra Club (Eastern Environmental Law Center, attorneys; Aaron Kleinbaum, of counsel; Raghu Murthy, on the briefs).

Geoffrey R. Gersten, Deputy Attorney General, argued the cause for respondent New Jersey Board of Public Utilities (Gurbir S. Grewal, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Andrew M. Kuntz, Deputy Attorney General, and Geoffrey R. Gersten, on the briefs).

James C. Meyer argued the cause for respondent New Jersey Natural Gas Company (Riker Danzig Scherer Hyland & Perretti, LLP, attorneys; Kevin H. Marino and John A. Boyle, on the briefs).

Maura A. Caroselli, Assistant Deputy Rate Counsel, argued the cause for respondent New Jersey Division of Rate Counsel (Stephanie A. Brand, Director, attorney; Maura A. Caroselli, on the briefs).

PER CURIAM

These two appeals, argued back-to-back and consolidated for purposes of

this opinion, arise from a proposal by respondent New Jersey Natural Gas

Company (NJNG) to construct a natural gas pipeline through several

municipalities and a portion of the Pinelands Area. On March 18, 2016, the

Board of Public Utilities (Board) granted a petition by NJNG pursuant to

N.J.S.A. 40:55D-19, and determined that the Municipal Land Use Law (MLUL),

N.J.S.A. 40:55D-1 to -163, and any local governmental development regulations

adopted pursuant to the MLUL, would not apply to the construction of the

pipeline.1

1 We will refer to this petition as the MLUL petition. A-3666-15 2 Appellants Pinelands Preservation Alliance (PPA) and Sierra Club (SC)

appeal from the Board's decision. Having reviewed appellants' contentions in

light of the record and applicable law, we affirm.

I.

The procedural history and facts of this matter are fully set forth in the

Board's thorough written opinion and, therefore, we need only summarize the

most salient facts here. NJNG is a New Jersey public utility engaged in the

business of purchasing, distributing, transporting, and selling natural gas to

approximately 510,000 customers in Morris, Middlesex, Monmouth, and Ocean

Counties, and the most southeastern portion of Burlington County. While

NJNG's northern service area was connected to five interstate transmission

feeds, three of which could independently supply that entire region, NJNG's

central and southern service areas were connected to the Texas Eastern

Transmission (TETCO) gas pipeline, a single interstate feed located outside of

NJNG's franchise area in Middlesex County.

On April 2, 2015, NJNG filed the MLUL petition 2 with the Board

proposing the construction and operation of an interstate natural gas

2 In addition to the MLUL petition, NJNG filed a "safety petition" seeking, among other things, the Board's approval to install the pipeline "within 100 feet

A-3666-15 3 transmission pipeline to be known as the Southern Reliability Link (SRL). As

explained in its MLUL petition, NJNG designed the SRL "to maintain system

integrity and reliability by creating a new, redundant major feed of natural gas

supplies from a second interstate transmission system." The SRL would connect

NJNG's existing natural gas system to a new interstate supply point located in

Chesterfield and operated by the Transcontinental Pipe Line Company

(Transco). The SRL would run from that supply point through six townships:

Chesterfield, North Hanover, Upper Freehold, Plumsted, Jackson, and

Manchester. A 12.1 mile portion in Ocean County, which included right-of-way

(ROW) areas located within and alongside the Joint Base McGuire-Dix-

Lakehurst (Joint Base), would cross the State-designated Pinelands Preservation

Area, N.J.S.A. 13:18A-2, -9, and -11(b). NJNG filed an amended petition

incorporating a new route through Upper Freehold Township on June 5, 2015.

In its MLUL petition, NJNG asked the Board to: (1) determine that the

project was reasonably necessary for the service, convenience, and welfare of

the public; (2) designate the pipeline's route through North Hanover and

of any building intended for human occupancy." The Board granted the safety petition. PPA filed a separate appeal challenging the Board's approval of the safety petition. Docket No. A-2876-15. In an opinion filed on this date in that appeal, we affirm the Board's decision granting the safety petition. A-3666-15 4 Chesterfield; and (3) determine that all of the zoning and local land ordinance s

and regulations promulgated under the MLUL by Burlington, Monmouth and

Ocean Counties, and Chesterfield, North Hanover, Upper Freehold, Plumsted,

Jackson, and Manchester Townships would not apply to the project. The Board

retained the MLUL petition for hearing and designated Commissioner Dianne

Solomon to conduct the case.

Commissioner Solomon denied PPA's motion to intervene in the hearing,

but granted its motion to participate in the proceeding, "limited to the right to

argue orally and file a statement or brief as set out in N.J.A.C. 1:1-16.6(c)(1)

and (2)." SC did not seek to intervene or participate in the matter. However,

Commissioner Solomon conducted three public hearings on the petition and both

PPA and SC presented testimony opposing the SRL project at the public hearing

held on July 28, 2015.

Commissioner Solomon conducted an evidentiary hearing on December

5, 2015. NJNG and the affected local municipalities presented pre-filed and live

testimony. Craig A. Lynch, NJNG's Senior Vice President of Energy Delivery,

testified that he had thirty years of experience designing and operating NJNG's

system. Lynch stated that the SRL project was needed to support the reliability

and integrity of NJNG's intrastate transmission system by providing a redundant

A-3666-15 5 major transmission feed to its Central and Ocean Divisions, which serve its

customers in Ocean, Burlington, and Monmouth Counties.

Lynch explained that over 85% of NJNG's winter peak-day gas supply for

its Central and Ocean Divisions was provided by a single interstate connection

operated by TETCO. The remaining 15% of NJNG's winter peak-day gas supply

was provided by two smaller connections. Thus, unlike NJNG's Northern

Division with its five major interstate feeds, NJNG's customers in its Central

and Ocean Divisions were most vulnerable to a TETCO supply chain failure.

The SRL project would provide "a major supply of natural gas from a second

interstate supply (Transco), reducing dependency on a single primary source

(TETCO)." According to Lynch, "[t]he aspirational goal of NJNG [was] to be

able to maintain service to the entire Monmouth/Ocean/Burlington region

should one of these sources of supply be interrupted, or experience a prolonged

loss of use of existing NJNG transmission facility along its internal backbone

system."

Lynch explained that Superstorm Sandy had revealed NJNG's critical need

for system redundancy in its Central and Ocean Divisions, especially after

31,000 of its customers had gas service curtailed during and after the stor m.

Lynch stated that these service curtailments were related to NJNG's decision to

A-3666-15 6 depressurize the local transmission system for safety reasons, and not to a total

interruption of the interstate supply. Nevertheless, this storm event

demonstrated to NJNG the tremendous cost of a potential widespread intrastate

curtailment, together with "other implications like making customer homes

inhabitable due to a lack of heat and hot water." Lynch stated that "each location

damaged [by the storm] also had substantial areas downstream that were viable,"

so "[i]f additional feeds were available to those systems, the outages could have

been minimized because [NJNG] would have isolated the damaged areas and

kept gas flowing to the undamaged areas."

Lynch then identified the significant difficulties, costs, and delays that

would arise in connection with restoring service after a widespread interruption

in the absence of a redundant feed:

[T]he pipeline would need to be brought back into service either by repair or replacement. Once the pipeline was restored, each affected distribution system would need to be restored, and each customer's service would need to be individually restored. After the curtailment, technicians would have to visit every customer, door to door, multiple times (to turn off, reenergize, and turn on appliances) to restore service. For example, after Superstorm Sandy, it took two months to restore service to approximately 31,000 customers on Long Beach Island and the Seaside Peninsula area of NJNG's service territory. Restoring service to a larger population of customers could take much longer.

A-3666-15 7 Lynch also described two events involving TETCO's interstate feed during

which the SRL would have affected NJNG's transmission and distribution

system and demonstrated the need for the SRL. First, TETCO's

Entriken/Chambersburg compressor stations had reduced the capacity of gas

flowing to NJNG due to a system failure that lasted from January 7 to January

15, 2015. "TETCO declared the outages a force majeure event," and NJNG

estimated that a similar outage would affect approximately 350,000 to 400,000

of its customers, cost between $170 million to $190 million, and take a minimum

of four months to restore service once adequate supply became available.

Second, during the 2014 Polar Vortex, an unplanned outage at TETCO's

Delmont compressor station decreased the availability of natural gas to NJNG.

This resulted in decreased line pressure and required NJNG to run its liquified

natural gas (LNG) plants for thirty-six hours to maintain system integrity and

replace lost supply. Lynch stated that a lengthier or more intense TETCO outage

"could have resulted in significant customer interruptions because LNG supply

and send[-]out capacities are limited." He explained that LNG plants cannot

replace a lost supply of more than 160,000 dekatherms 3 per day (Dth/day).

3 A "dekatherm" is a unit of energy used primarily to measure natural gas. A-3666-15 8 Lynch asserted that with the SRL in place, there would have been no risk

to customer interruptions during either of these events since gas service would

have been provided via the SRL's connection to Transco. Because NJNG

currently relied on a single interstate feed for nearly all of its gas supply to its

Central and Ocean Divisions, Lynch testified it would be "bad planning and

irresponsible" for NJNG to wait for a catastrophic event resulting in widespread

service loss before taking steps to avoid or mitigate such an event.

Lynch also testified that the New Jersey Reinvestment in System

Enhancement (NJ RISE) Program, approved by the Board in 2014, would not

render the SRL unnecessary. NJ RISE was "the name of a group of six NJNG

projects approved by the [Board] in 2014 providing system enhancements that

improve NJNG's distribution system through storm hardening investments."

Lynch explained that because four of those projects served as secondary feeds

to large single-feed distribution systems along the coast, the NJ RISE project

would not render the SRL unnecessary.

Lynch testified that the SRL project was intended exclusively for

reliability and not expansion or addition of services. "[T]he planning and design

of this [p]roject [was] exclusively a reliability project, providing an alternate

source of natural gas for our customers." However, he agreed that expansion or

A-3666-15 9 addition of services was "not out of the question," and that more customers

would increase NJNG's profits.

Respondent Division of Rate Counsel presented the testimony of Edward

A. McGee of McGee Consulting, LLC. McGee believed that only a portion of

the cost of the proposed line should be borne by ratepayers, since the proposed

pipeline was oversized for the current contract that NJNG had negotiated with

the interstate pipeline transporting gas to the SRL. He explained that since the

entire amount of gas set forth in the contract could be supplied to NJNG's system

through a smaller-diameter line, only the cost of a smaller-diameter line should

be borne by ratepayers. However, McGee made clear that he did not mean to

suggest that NJNG should install a twenty-four-inch pipeline instead of its

planned thirty-inch pipeline. Instead, he explained that while NJNG could

choose the size of the line, ratepayers should not be expected to pay the cost of

an oversized line.

In response, Lynch testified it would be a mistake to equate the diameter

of the pipeline with the contract NJNG had signed for the gas supply, and to

conclude this volume was best delivered only with a twenty-four-inch pipe.

According to Lynch, contract volume did not equal reliability requirements.

That is, contract volume was limited by the infrastructure of the interstate

A-3666-15 10 pipelines and did not reflect NJNG's full reliability requirement. Lynch

explained that "NJNG's primary existing backbone is [thirty]-inch pipeline" and

a similarly-sized pipeline for the SRL project was "required to feed the entire

system once upgrades are made to [the] backbone to provide for a fully looped

Lynch stated that without a "looped backbone," the SRL could not provide

gas to the entire southern portion of NJNG's service area. In the event there was

a reduction of supply from TETCO, the SRL's design would ensure transmission

system integrity. Also, in the absence of a thirty-inch pipeline, the additional

capacity transacted for in the event of an interruption could not flow prop erly

without an unacceptable pressure drop.

NJNG also presented the testimony of Barry A. Baker, manager of the

Impact Assessment and Permitting Department at AECOM Technology Corp.,

who testified as an expert on siting utility transmission facilities. NJNG retained

AECOM and Baker to assist in the evaluation and development of an alternate

routes study in order to select a route for the SRL that would best minimize

impacts to local communities and the natural environment while maintaining

constructability.

A-3666-15 11 Baker's alternatives analysis consisted of four fundamental phases: define

the project study area, generate alternative routes, evaluate the alternatives, and

determine the selected route using a quantitative and qualitative assessment. In

the first phase, Baker found that a new service feed was required to accomplish

NJNG's project objectives of developing an independent gate station capable of

delivering large volumes of gas, supporting the southern end of NJNG's

transmission system, and not needing supply from TETCO.

Baker next split the proposed pipeline into two geographical sections

because the eastern portion of the study area was located within the Pinelands

and any route through that area would need to combine the impacts to the built

and natural environments while maintaining a feasible engineering design.

Section One began in Chesterfield at the Transco compressor station connector

point and extended easterly to the Pinelands Area boundary. Section Two

bordered the western edge of the Pinelands Area and extended eastward to

NJNG's existing facilities in Manchester Township.

Baker then employed a detailed siting analysis to determine the different

alternative routes that would best balance social, environmental, engineering,

and economic considerations. He also considered siting the SRL within or

parallel to existing pipeline and utility ROWs, and crossing undeveloped land.

A-3666-15 12 Baker identified five alternative routes for Section One, and four

alternatives for Section Two. Baker explained the methodology used to generate

each of the alternative routes:

The goal of the [a]lternatives [a]nalysis was to identify a route that minimizes the impact to the built and natural environments to the maximum extent practicable, while still maintaining the technical and economic viability of the [p]roject. The [a]lternatives [a]nalysis was used to determine the most suitable route for a 30-inch underground transmission main connecting the Transco compressor station in Chesterfield Township and transmission system in Manchester Township.

Baker's alternatives analysis considered potential impacts of each

alternative route from three perspectives: (1) protection of the built

environment, which addressed human and cultural resources, including

residential neighborhoods, other community-valued buildings, and historic sites;

(2) protection of the natural environment, which addressed plants, animals,

aquatic resources, ecological resources, and natural habitat; and (3) engineering

considerations, which addressed maximizing co-location and minimizing cost

and schedule challenges for the SRL by seeking the shortest path or using

existing ROWs, while also avoiding areas that posed significant construction

obstacles.

A-3666-15 13 Baker then evaluated the alternative routes based on quantitative and

qualitative assessments, and determined the advantages and disadvantages of

each. Following this analysis, Baker stated that various alternative routes were

not selected because of "their relative lengths through sections of the Pinelands

Management areas where such development [was] not considered a permissible

use." He explained that two of these routes were too close in proximity to the

highest number of schools and churches.

Two other proposed alternative routes, one that followed the Jersey

Central Power and Light ROW (JCP&L ROW) and one that entered and crossed

through the Joint Base were also not feasible. The JCP&L ROW route passed

through preserved farmland parcels where pipeline development was prohibited,

and that route had cumulative environmental impacts higher than any other

alternative. The route that entered and crossed through the operational areas and

firing ranges on the Joint Base was not selected because it would present various

undesirable impacts, such as the dangers inherent in crossing a military range

and possibly encountering unexploded ordnance.

Ultimately, Baker and AECOM selected Route B for Section One, and

Route D for Section Two. Section One, Route B was approximately 16.7 miles,

and would require the acquisition of approximately 1.1 miles of easements on

A-3666-15 14 private property and would run underneath approximately 15.6 miles of roads.

Section Two, Route D was approximately 11.7 miles, and would require the

acquisition of 1.0 mile of private easements outside of the Joint Base, and the

following easements within the Joint Base: 3.8 miles along the fence line of a

side road; 3.8 miles under other Joint Base roads; 1.5 miles adjacent to an unused

runway; and 1.4 miles along the side of other roads or undeveloped areas. 4

Baker concluded that these two routes would result in the least combined

impacts to the built environment and natural environment while still offering a

feasible engineering design and practicable construction.

John B. Wyckoff, P.E., NJNG's Director of Engineering, testified that the

SRL pipeline would consist of approximately twenty-eight miles of a new thirty-

inch diameter, one-half inch wall thickness, transmission line. Each

construction site would be approximately one-quarter mile long, and horizontal

directional drilling would be used to pass under most creeks or streams. Traffic

control, road closings, detour routes, and the need for night work would be

coordinated with local officials.

4 Baker also cited to a letter from the Joint Base Commander to Assemblyman Ronald Dancer on November 6, 2015, which stated that Route D had been "developed in close coordination with Air Force engineering, environmental, and legal experts and remains the best available on-base route." A-3666-15 15 Wyckoff further stated that the SRL was expected to provide 180,000

Dth/day, or more than 25% of NJNG's winter design day capacity. In NJNG's

responses to discovery requests, it explained that on its "Peak Day" in winter of

February 2015, "a volume of 180,000 Dth would represent approximately 33%

of [NJNG's] pipeline supply into Monmouth/Ocean county service territory, and

32% of total customer demand including LNG production," while during the

Polar Vortex, "a volume of 180,000 Dth would represent approximately 43% of

[NJNG's] pipeline supply into Monmouth/Ocean county service territory, and

31% of total customer demand including LNG production."

Based upon the evidence presented at the hearing and at the three public

hearings, the Board rendered a unanimous written decision and order approving

NJNG's MLUL petition. As to the public's need for the SRL project, the Board

concluded that NJNG "ha[d] met its burden of proof, and ha[d] shown that the

Project 'is reasonably necessary for the service, convenience or welfare of the

public' pursuant to N.J.S.A. 40:55D-19." Reviewing that evidence, the Board

explained that NJNG's current transmission system unnecessarily left customers

in its southern territory vulnerable, since those customers in parts of Ocean,

Burlington, and Monmouth Counties were most defenseless to an interruption

of supply from TETCO.

A-3666-15 16 The Board found:

In the event of a disruption in TETCO['s] supply, it is evident that NJNG's existing two remaining interconnections with Transco, which are also at the northern end of NJNG's transmission system servicing the Counties, lack the ability to maintain adequate pressure at the southern end of the system. These two Transco interconnections have an approximate capacity of 76,500 and 124,500 Dth/day and are [sic] their expansion is limited by the existing Transco transportation capacity available. NJNG's LNG facilities can also be utilized to help maintain system pressures. However, the LNG facilities have a maximum send-out of 170,000 Dth/day. At maximum send-out with a full tank, current LNG supplies will last approximately seven (7) to ten (10) days.

Any supply disruption that outstrips the capacity of the existing Transco interconnection and LNG's ability to maintain adequate system pressure will result in the loss of service to customers in the southern portion of the [c]ompany's service territory. Should this happen, NJNG would need to isolate portions of the distribution system by shutting line valves and go house-to-house in the isolated areas to shut valves at each meter. The extent of the areas isolated depends on the extent of the supply interruption. Once supply issues are resolved, the isolated sections would need to be reenergized and each individual customer would need to be turned back on and their appliances re-lit.

Thus, the Board concluded that NJNG's current interconnection with TETCO's

Texas Eastern Transmission Pipeline, which was located at the northern end of

NJNG's transmission system servicing the counties, equated to "a single point

A-3666-15 17 of failure," and that the SRL's design and the fact that it would provide an

alternate interstate supply source to the southern portion of NJNG's transmission

system would mitigate the potential impact of this failure point.

The Board further found that NJNG had considered alternatives to its SRL

project, but had correctly rejected them because they did not meet the three

criteria required for NJNG to reinforce its current transmission system: (1)

"there must be an independent gate station capable of delivering large volu mes

of gas"; (2) this gate station "must support the southern end of NJNG's

transmission system"; and (3) "it must not provide supply from TETCO."

The Board also rejected McGee's testimony on behalf of the Rate Counsel

that the full capacity of a thirty-inch pipeline was not necessary for redundancy

purposes. Relying on Lynch's testimony, the Board agreed that the 180,000

Dth/day contract was not an appropriate tool to determine the correct size of the

pipe for the project.

The Board further concluded that the SRL project would serve the goals

of the State’s 2011 Energy Master Plan (EMP) because the pipeline would "add

a significant, diverse source of natural gas, while also increasing overall system

reliability and reinforcement in NJNG’s service area." The Board explained:

The EMP was released in 2011 and sets forth the strategic vision for the use, management and

A-3666-15 18 development of energy in New Jersey, with the overarching goal of saving money while stimulating the economy and protecting the environment. One of the five (5) major goals of the EMP is to expand in-state electricity resources by promoting the "expansion of the existing [natural gas] pipeline network that serves gas utilities and power plants throughout New Jersey." An [u]pdate to the EMP ("EMP Update") was released in 2015. The EMP Update recommended no changes to the goals stated in the 2011 EMP and further recommended the continued advocacy "for enhanced intrastate [pipeline] capacity at local levels." The actions, decisions, determinations and rulings of State government entities with respect to energy "shall to the maximum extent practicable and reasonable and feasible conform" with the provisions of the EMP. N.J.S.A. 52:27F-15(b). In implementing its regulatory powers and its responsibilities, the Board considers the directives of the EMP.

Thus, pursuant to N.J.S.A. 40:55D-19, the Board concluded that NJNG

had "demonstrated the need to address its risk of a supply interruption to its gas

transmission system." The Board explained that "the pipeline was selected to

provide appropriate flows, in the case of curtailments in excess of 180,000

Dth/day," and that the "SRL will provide a significant, diverse feed to NJNG's

transmission system and support the integrity of such, while minimizing the risk

of an interstate supply interruption."

The Board next found that the evidence supported NJNG's review and

analysis of the alternative intrastate routes for its project, and that its chosen

A-3666-15 19 route for the SRL "[was] the most appropriate, primarily because NJNG and

AECOM have demonstrated that its alignment minimizes the overall potential

impacts to the environment and the community." The Board, therefore,

concluded there was "no reasonable practicable alternative which would have

less adverse impact upon the environment or upon the land use and zoning

ordinances of the respective counties and municipalities."

The Board rejected the objectors' claims that there were more feasible

alternatives for routing the SRL than NJNG's preferred route, such as routes that

traversed through the Joint Base or followed the JCP&L ROW. With respect to

the Joint Base, the Board found the evidence supported NJNG's assertion that

this alternative "would present undesirable operational impacts" since crossing

a military range complex and other operational areas would result in the

possibility of encountering unexploded ordnance. The Board also noted that the

Base Commander concurred that NJNG’s proposed route was "developed in

close coordination with Air Force engineering, environmental, and legal experts

and remains the best available on-base route."

Rejecting the JCP&L ROW route, the Board found the evidence supported

NJNG's assertion that this alternative would require the pipeline to cross

preserved farmland, which was prohibited by the New Jersey Farmland

A-3666-15 20 Preservation Program, known as the Agriculture Retention and Development

Act (ARDA). N.J.S.A. 4:1C-11 to -48, and the State Agricultural Development

Committee (SADC) regulations, N.J.A.C. 2:76-1.1 to -27.10. The Board also

explained that this alternate route posed great environmental risks:

[T]he utilization of the JCP&L ROW would require extensive clearing and cross environmentally sensitive areas containing extensive wetlands as well as threatened and endangered species, resulting in a higher overall impact to the interests being balanced in the alternatives analysis. As reflected in the [a]lternatives [a]nalysis, AECOM found that Route D crossed the most streams, most wetlands, most floodplains and the most landscape-identified threatened and endangered ("T&E") species habitat areas. Route D was also assigned the highest special permit value (five (5)) because this alignment would cross the most streams, most wetlands, most floodplains and the most landscape-identified T&E species habitat areas.

Therefore, the Board concluded that the route involving the utilization of

the JCP&L ROW not only had the greatest environmental concerns, but also

required NJNG to cross preserved farmland in contravention of state law.

Accordingly, the Board found that a proposed route other than the one NJNG

selected was "not feasible."

The Board further found that the cost estimates reflected in the record for

the SRL project ranged from approximately $150 million to $180 million.

However, in determining whether the SRL project was "reasonably necessary

A-3666-15 21 for the service, convenience or welfare of the public" under N.J.S.A. 40:55D -

19, the Board also considered "the cost that New Jersey electricity customers

[would] bear in connection with the Project."

Consequently, the Board examined NJNG's review of alternative project

proposals, that is, ones that extended interstate pipelines from multiple interstate

suppliers through New Jersey to NJNG's service territory. According to NJNG's

review, construction of an interstate pipeline extension to its service territory

would cost approximately $10 million per mile. Based on this cost and the

estimated rates of return authorized by the Federal Energy Regulatory

Commission, NJNG found, and the Board agreed, that it would be more costly

to pursue an interstate pipeline extension. "Since the Project is thirty (30) miles

long, the costs of an interstate pipeline would be approximately $300 million,

compared with the current intrastate pipeline estimate of $150-180 million."

But the Board determined from the evidence that a number of other factors

could influence and add to NJNG's proposed cost of an intrastate pipeline, such

as overall length, road restoration, easement acquisition, site clearing,

environmental mitigation, site access, and requirements to cross wetlands and

streams. Thus, the Board found that, at the very least, the cost of a pipeline

A-3666-15 22 alignment following the various alternative routes evaluated in NJNG's analysis

could be considered comparable.

Nevertheless, the Board took a further step in its analysis based on the fact

that the SRL was reasonably necessary since a single interstate supply from

TETCO currently provided the majority of gas for NJNG's territory in question.

That is, from the evidence presented, the Board reasoned:

If the [c]ompany experiences a loss of this TETCO supply, this would ultimately result in interruptions to approximately 350,000 to 400,000 customers during peak send-out periods in winter. Restoration of service to these customers would take a minimum of four (4) months and result in direct expenses to the company ranging from approximately $170 to $190 million, not including losses related to the loss of social services or economic activity.

Thus, the Board found: (1) "the cost of building an intrastate pipeline,

owned and operated by NJNG and supplied by Transco, [was] reasonable as

compared to the alternative of building a pipeline owned and operated by an

interstate supplier"; (2) there was "sufficient evidence in the record to conclude

that the estimated cost of the line [was] reasonable to prevent the loss of service

to NJNG customers and as compared to intrastate and interstate route

alternatives"; and (3) the SRL project was "reasonably necessary for the service,

convenience or welfare of the public" pursuant to N.J.S.A. 40:55D-19. Further,

A-3666-15 23 because this matter was not a rate proceeding, the Board stated it did not have

to "determine the recoverability of the cost of this Project, including the

incremental cost difference between a twenty-four (24) and thirty (30) inch

pipeline."

In sum, the Board determined in accordance with N.J.S.A. 40:55D-19 that:

(1) the SRL project was "reasonably necessary for the service, convenience, or

welfare of the public" to enable NJNG to continue to provide safe, adequate, and

reliable service to its customers; (2) NJNG should be able to construct and begin

operation of the pipeline as proposed; and (3) the local land use and zoning

ordinances, and any other ordinance, rule or regulation promulgated under the

auspices of the MLUL would not apply to the construction, installation, and

operation of the project.

Accordingly, the Board ordered that "neither N.J.S.A. 40:55D-1 et seq.,

nor any other government ordinances or regulations, permits or license

requirements made under the authority of N.J.S.A. 40:55D-1 et seq. shall apply

to the siting, installation, construction, or operation of the [p]roject." The Board

expressly made its order "subject to the approval of any pending road opening

permits from the affected municipalities and the New Jersey Department of

Transportation, all other pending permits and approvals, if any, and the pressure

A-3666-15 24 testing requirements of N.J.A.C. 14:7-1.14 prior to placing the Pipeline in

operation." (emphasis added).

These appeals followed.

II.

PPA argues that the SRL project violates the Pinelands Protection Act

(Pinelands Act), N.J.S.A. 13:18A-1 to -29, the Pinelands Comprehensive

Management Plan (CMP), and local municipal Pinelands ordinances. It also

claims that the Pinelands Commission's (Commission's) Certificate of Filing

(COF) did not constitute a proper review of the merits of the project through the

Pinelands.

In addition, PPA asserts that the SRL project is not "associated with the

function" of the Joint Base "as required by the CMP." PPA further asserts that

the Board should have concluded that the project violated the remediation

process of natural restoration previously approved by the United States

Environmental Protection Agency (USEPA) and other environmental standards

established by the New Jersey Department of Environmental Protection

(NJDEP). These contentions all lack merit because none of these issues were

before the Board in this MLUL petition matter and, therefore, could only be

considered by the agencies having jurisdiction over them.

A-3666-15 25 "Generally speaking, the [Board]'s power to regulate utilities is broad." In

re Centex Homes, LLC, 411 N.J. Super. 244, 254 (App. Div. 2009). The

Legislature vested the Board with the "general supervision and regulation of and

jurisdiction and control over, all public utilities . . . and their property, property

rights, equipment, facilities and franchises so far as may be necessary for the

purpose of carrying out the provisions of [Title 48]." N.J.S.A. 48:2-13(a).

N.J.S.A. 48:2-23 empowers the Board to ensure that regulated public utilities

provide safe, adequate and proper service to the citizens of New Jersey. In re

Public Service Electric & Gas Co. (PSE&G), 35 N.J. 358, 371 (1961). N.J.S.A.

48:2-19 states that the Board may "[i]nvestigate, upon its own initiative or upon

complaint in writing any matter concerning any public utility." Those

provisions must be construed liberally. Twp. of Deptford v. Woodbury Terrace

Sewerage Corp., 54 N.J. 418, 424 (1969); PSE&G, 35 N.J. at 371.

The specific standard applied by the Board when considering a petition

filed by a utility company is reflected in N.J.S.A. 40:55D-19, which states in

part:

This act [(the MLUL)] or any ordinance or regulation made under authority thereof, shall not apply to a development proposed by a public utility for installation in more than one municipality for the furnishing of service, if upon a petition of the public utility, the Board of Public Utilities shall after hearing,

A-3666-15 26 of which any municipalities affected shall have notice, decide the proposed installation of the development in question is reasonably necessary for the service, convenience or welfare of the public.

Nothing in this act shall be construed to restrict the right of any interested party to obtain a review of the action of the municipal agency or of the Board of Public Utilities by any court of competent jurisdiction according to law.

[(emphasis added).]

N.J.S.A. 48:9-25.4 further permits the Board to designate "a practicable

route" for a public utility transmitting natural gas service if the local

municipality fails or refuses to make such a designation or designates an

impracticable route. That statute provides:

Any gas company organized under the laws of this State in addition to but not in limitation of the powers conferred by the laws under which it was organized may construct, lay, maintain and use facilities, conductors, mains and pipes, with the appurtenances thereto, in, through and beyond any municipality or municipalities, for the purpose of transmitting through the same natural gas or any mixture of gas or gases of any other type or types for use in its business; provided, that in each case such corporation shall first have obtained a designation by the governing body or official having control thereof, of the public street, road, highway or place, which may be occupied by such corporation for such purpose. If any governing body or official having control of any public street, road, highway or place, after having received from such corporation a request to designate

A-3666-15 27 such public street, road, highway or place, for occupancy by such corporation for such purpose, shall fail or refuse to make such designation or to designate a practicable route, the Board of Public Utility Commissioners, upon application by the corporation, and after hearing on notice to such governing body or official, shall make such designation.

[N.J.S.A. 48:9-25.4 (emphasis added).]

These two statutes do not invalidate the specific laws governing the

Pinelands, wetlands, or Superfund sites. An agency cannot issue or deny a

permit "absent satisfaction of the applicable statutory criteria." In re

Authorization for Freshwater Wetlands Gen. Permits, 372 N.J. Super. 578, 596

n.8 (App. Div. 2004).

However, "[w]hile the [Board] was 'intended by the Legislature to have

the widest range of regulatory power over public utilities,' that power has never

been cast in environmental terms." Centex Homes, 411 N.J. Super. at 265-66

(citation omitted). The language of N.J.S.A. 48:2-23 does not give the Board

power to decide a public utility's compliance with environmental or land use

requirements, or give those issues "overriding consideration" in its decision to

extend service. Id. at 264.

Thus, the Board had no statutory authority to review NJNG's proposed

construction for compliance with the Pinelands Act, the CMP Rules, the

A-3666-15 28 USEPA's or NJDEP's decisions or orders, or with any other environmental

statutory scheme. Indeed, as we recently held in another case involving the

approval of a natural gas pipeline, only the Commission has the expertise and

exclusive legislative authority to decide whether a pipeline project compli es

with the Pinelands Act and CMP Rules in the coordinated permitting process.

In re Petition of S. Jersey Gas Co. (SJG), 447 N.J. Super. 459, 482 (App. Div.

2016).

In SJG, this court addressed the Board's grant of a petition under N.J.S.A.

40:55D-19 for South Jersey Gas's proposed construction of a similar natural gas

pipeline within the Pinelands. Id. at 471-72. We noted that a provision of the

Pinelands Act, N.J.S.A. 13:18A-10(c), stated that "no State . . . permit . . . for

the construction of any structure or the disturbance of any land within [the

Pinelands] shall be granted unless such approval or grant conforms to the

provisions of [the CMP]." Id. at 478. (alteration in original). However, we made

clear that the decision as to whether the project conformed to the CMP had to

be made by the full Commission and not by the Board. We stated:

[I]n deciding whether to grant a petition brought under N.J.S.A. 40:55D-19, the Board determines whether the MLUL and local regulations adopted pursuant to the MLUL should be waived. The Board's approval of any MLUL petition must be consistent with the minimum

A-3666-15 29 standards of the CMP, but the Board is not empowered to make that determination in the first instance. In this matter, that decision must be made by the Commission, pursuant to its authority under the Pinelands Act and the CMP.

[Ibid. (emphasis added).]

Therefore, we reject PPA's argument that the Board's decision was

arbitrary or unreasonable because the Board did not make determinations on

environmental issues that were within the jurisdiction of the Commission and

other State and federal agencies.

PPA also argues that the COF prepared by the Commission's Executive

Director was insufficient to demonstrate that the SRL project met the standards

of the CMP. In SJG, this court held that only the full Commission could make

this determination and, because it did not, we remanded the matter to the

Commission so that it could review the Executive Director's action. Id. at 478-

79. PPA suggests that a similar remand is warranted here. We disagree.

First, the Board specifically stated in its final decision that its approval of

NJNG's petition was "subject to . . . all other pending permits and approvals."

This language sufficiently accounts for the need for prior approval by the

Commission. Moreover, our Supreme Court has emphasized the importance of

"comity and deference to sibling agencies" where the government oversees

A-3666-15 30 "complex and manifold activities that are also the appropriate statutory concern

of other governmental bodies." Hinfey v. Matawan Reg'l Bd. of Educ., 77 N.J.

514, 531 (1978). Thus, there is no merit to PPA's contention that the Board

waived compliance with the Pinelands Act and the CMP Rules, or with the

USEPA's orders or NJDEP's requirements by stating that its approval of the

MLUL petition was subject to action by its sibling agencies on other pending

permit applications.

Perhaps more importantly, the Commission adopted a resolution on

September 14, 2017 approving NJNG's application to construct the pipeline in

the Pinelands.5 Therefore, NJNG has satisfied the requirements for Commission

approval set forth in N.J.S.A. 13:18A-10(c) and no remand is necessary.

III.

In a related issue, SC argues that the Board lacked the authority under

N.J.S.A. 40:55D-19 to waive compliance with Pinelands protection ordinances

adopted by municipalities allegedly under the authority of the Pinelands Act

rather than the MLUL. Because we considered and rejected this identical

5 PPA and SC have filed separate appeals challenging the Commission's approval of this application. Docket Nos. A-925-17 and A-1004-17. In an opinion also filed on this date, we affirm the Commission's approval of the application. A-3666-15 31 argument by SC in SJG, we discern no basis for reaching a different conclusion

here.

In SJG, SC argued

that the Board's decision waiving municipal approvals was wrong as a matter of law. [SC] contends that N.J.S.A. 40:55D-19 does not apply to Pinelands-based reviews and ordinances, and that the Board had no authority to override any local approval that is otherwise required by the Pinelands Act and any ordinances authorized and adopted under that Act.

[447 N.J. Super. at 483.]

In explaining why we were "not persuaded by this argument[,]" we stated:

By its plain language, N.J.S.A. 40:55D-19 gives the Board the authority to waive the MLUL and any local ordinance or regulation adopted pursuant to the MLUL. The Board's authority under N.J.S.A. 40:55D-19 necessarily includes the power to waive any MLUL review of approvals by municipalities in the Pinelands. The Pinelands Act does not limit the exercise of this power. However, as the Board recognized in its final decision, any development project for which local MLUL regulation is waived pursuant to N.J.S.A. 40:55D-19 remains subject to the Pinelands Act and the minimum standards of the CMP.

[Ibid.]

Thus, the Board clearly had the authority to waive compliance with the

MLUL and any local ordinance or regulation adopted pursuant to the MLUL

A-3666-15 32 whether or not those ordinances were enacted by municipalities in the Pinelands

Preservation Area.

SC contends that some of the municipal ordinances involved in this case

were enacted pursuant to authority granted to the municipalities by the Pinelands

Act rather than by the MLUL. However, SC does not identify any ordinances

that meet this description. SC also argues that municipal ordinances adopted

pursuant to the MLUL which impose standards that exceed those established

under the Pinelands Act or the CMP should not be waivable under N.J.S.A.

40:55D-19. However, as we squarely held in SJG, "[t]he Board's authority under

N.J.S.A. 40:55D-19 necessarily includes the power to waive any MLUL review

of approvals by municipalities in the Pinelands." Ibid. (emphasis added).

Therefore, we reject SC's contention on this point.

IV.

As noted above, the Board granted PPA the opportunity to participate in

the MLUL petition proceeding by filing a post-hearing brief and presenting oral

argument. However, when PPA submitted its brief, it attached seventeen

exhibits that had not been presented at either the evidentiary hearing or the

public hearings. These exhibits included documents that had been filed with the

Commission concerning the pipeline, several emails, the transcript of an October

A-3666-15 33 2013 analyst meeting hosted by NJNG's parent, New Jersey Resources, a

memorandum criticizing NJNG's proposal prepared by a consultant "in the

mergers and acquisition arena with numerous clients within the energy

industry," and various environmental studies and economic analyses of the Joint

Base and of New Jersey Superfund Sites from 1999 to 2014. In presenting these

exhibits, PPA failed to submit an affidavit or certification authenticating the

documents or verifying the facts contained in them.

As a result, the Board declined to consider the seventeen exhibits as

evidence. The Board explained that although N.J.A.C. 1:1-15.2 allows an

agency to take official notice of its own documents and the existence of

documents issued by a sister agency, the exhibits that PPA offered with its brief

had no accompanying formal certifications and were never subject to a review

process by the Board or by the other parties. Thus, the Board concluded that

PPA was "attempting to import new evidence into the record, when the authoring

witnesses ha[d] not been qualified to testify nor been subject to cross-

examination." Nevertheless, the Board advised PPA that it would consider its

new submissions as public comments rather than as evidence.

PPA now argues that the Board erred by failing to consider the documents

as evidence. Again, we disagree.

A-3666-15 34 PPA was not a party to the MLUL petition proceeding and, as a

participant, it only had the right to file a brief and present oral argument.

N.J.A.C. 1:1-16.6(c). Thus, PPA did not have the right to submit evidence

during the evidentiary hearing or in a post-hearing brief.

Moreover, PPA improperly attached the exhibits to its brief without

providing the required affidavit or certification authenticating the exhibits or

attesting to the accuracy of the facts contained in the documents. As we stated

almost thirty-five years ago,

[t]he function of [a] brief is a written presentation of legal argument. Facts intended to be relied on which do not already appear of record and which are not judicially noticeable are required to be submitted to the [trier of fact] by way of affidavit or testimony. See R. 1:6-6 . . . . These are not merely formal requirements. They go to the heart of procedural due process.

[Celino v. Gen. Accident Ins., 211 N.J. Super. 538, 544 (App. Div. 1986).]

As noted, the Board stated it would consider PPA's submissions as public

comment along with all of the other non-evidentiary public comments it received

from other participants. Under these circumstances, there is no basis for

disturbing the Board's decision on this issue.

V.

A-3666-15 35 In the remaining points of their briefs, PPA and SC argue that the Board's

decision to grant NJNG's MLUL petition was arbitrary and capricious because

the pipeline was not necessary to solve the "single point of failure" catastrophic

scenario, which they assert could be better addressed with alternative routes that

would avoid the Pinelands. They also allege that NJNG intends to use the SRL

to maximize its profits rather than the reliability of its natural gas delivery

system. These arguments lack merit.

Our scope of review of an administrative agency's decision is limited. In

re Carter, 191 N.J. 474, 482 (2007). "An appellate court may reverse an agency

decision if it is arbitrary, capricious, or unreasonable." In re Proposed Quest

Acad. Charter Sch. of Montclair Founders Grp., 216 N.J. 370, 385 (2013). As

the Supreme Court has explained:

Although sometimes phrased in terms of a search for arbitrary or unreasonable agency action, the judicial role [in reviewing an agency action] is generally restricted to three inquiries: (1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.

A-3666-15 36 [Id. at 385-86 (quoting Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)).]

Our review of Board decisions is further limited by N.J.S.A. 48:2-46,

which states in pertinent part that the Appellate Division has "jurisdiction to

review any order of the [B]oard [of Public Utilities] and to set aside such order

in whole or in part when it clearly appears that there was no evidence before the

board to support the same reasonably . . . ." (emphasis added). This statute

follows the general principle that our courts will not reverse an agency decision

just "'because of doubts as to its wisdom or because the record may support more

than one result,' but [are] 'obliged to give due deference to the view of those

charged with the responsibility of implementing legislative programs.'" In re

Adoption of Amendments to N.E., Upper Raritan, Sussex Cnty. & Upper Del.

Water Quality Mgmt. Plans, 435 N.J. Super. 571, 583-84 (App. Div. 2014)

(alteration in original) (quoting In re N.J. Pinelands Comm'n Resol. PC4-00-89,

356 N.J. Super. 363, 372 (App. Div. 2003)).

A reviewing court "will not weigh the evidence, determine the credibility

of witnesses, draw inferences and conclusions from the evidence, or resolve

conflicts therein." De Vitis v. N.J. Racing Comm'n, 202 N.J. Super. 484, 489-

90 (App. Div. 1985). "[W]here there is substantial evidence in the record to

support more than one regulatory conclusion, it is the agency's choice which

A-3666-15 37 governs." Adoption of Amendments, 435 N.J. Super. at 583 (quoting Murray v.

State Health Benefits Comm'n, 337 N.J. Super. 435, 442 (App. Div. 2001)

(citation and internal quotation marks omitted)).

"[J]udicial deference to administrative agencies stems from the

recognition that agencies have the specialized expertise necessary to . . . deal[]

with technical matters that are 'particularly well equipped to read and understand

the massive documents and to evaluate the factual and technical issues. . . .'"

Ibid. (quoting N.J. State League of Muns. v. Dep't of Cmty. Affs., 158 N.J. 211,

222 (1999)) (alteration in original). The burden of demonstrating that the

agency's action is reversible "rests upon the [party] challenging the

administrative action." Ibid. (alteration in original).

Applying these well-established principles, we discern no basis for

disturbing the Board's decision to grant NJNG's MLUL petition because it was

reasonably necessary for the service, convenience, or welfare of the public and

there was "no reasonable practicable alternative which would have less adverse

impact upon the environment or upon the land use and zoning ordinances of the

respective counties and municipalities." We therefore reject appellants'

arguments on this point substantially for the reasons set forth by the Board in its

comprehensive opinion and add the following comments.

A-3666-15 38 In order to be successful on its petition for an exemption from all MLUL

provisions and all local regulations and ordinances made pursuant to the

MLUL's authority, NJNG had to demonstrate that its SRL project was

"reasonably necessary for the service, convenience or welfare of the public,"

N.J.S.A. 40:55D-19, and that the route designated was "practicable," N.J.S.A.

48:9-25.4.

Construing the language in N.J.S.A. 40:55-50, the predecessor to N.J.S.A.

40:55D-19, the Supreme Court stated:

1. The statutory phrase, "for the service, convenience and welfare of the public" refers to the whole "public" served by the utility and not the limited local group benefited by the zoning ordinance.

2. The utility must show that the proposed use is reasonably, not absolutely or indispensably, necessary for public service, convenience and welfare at some location.

3. It is the "situation", i.e., the particular site or location . . . which must be found "reasonably necessary," so the Board must consider the community zone plan and zoning ordinance, as well as the physical characteristics of the plot involved and the surrounding neighborhood, and the effect of the proposed use thereon.

4. Alternative sites or methods and their comparative advantages and disadvantages to all interests involved, including cost, must be considered in determining such reasonable necessity.

A-3666-15 39 5. The Board's obligation is to weigh all interests and factors in the light of the entire factual picture and adjudicate the existence or non-existence of reasonable necessity therefrom. If the balance is equal, the utility is entitled to the preference, because the legislative intent is clear that the broad public interest to be served is greater than local considerations.

[PSE&G, 35 N.J. at 376-77 (citing In re Application of Hackensack Water Co., 41 N.J. Super. 408, 425 (App. Div. 1956)).]

The Court explained:

This exemption section expresses a legislative intent that, in the zoning field, at least some power over a utility is reserved to a municipality, subject to the supervising authority of the Board to declare the local regulation inapplicable if it determines "the situation of the building or structure in question is reasonably necessary for the service, convenience or welfare of the public."

[Id. at 373-74.]

In New Jersey Nat. Gas Co. v. Borough of Red Bank, 438 N.J. Super. 164,

184 (App. Div. 2014), we observed that "[i]t is evident that the Legislature's

enactment of N.J.S.A. 40:55D-19 actually increased control over a public

utility's use of land within a municipality's borders." These requirements

reinforce the Court's recognition that the regulation of public utilities requires a

regional approach. Overlook Terrace Mgmt. Corp. v. Rent Control Bd. of Town

A-3666-15 40 of W. N.Y., 71 N.J. 451, 474 (1976); S. Ocean Landfill, Inc. v. Mayor & Council

of Twp. of Ocean, 64 N.J. 190, 195 (1974). Viewed through this prism,

appellants' arguments opposing the Board's grant of the MLUL petition must be

rejected.

PPA and SC first contend that NJNG did not demonstrate a need for a

redundant pipeline system because it has never sustained a catastrophic system

or supply power failure and could not quantify the likelihood of such an event

occurring in the future. Appellants also criticize NJNG because it relied upon

Lynch's testimony, rather than that of an independent expert, to show the need

for a redundant transmission line. We disagree.

To support a MLUL petition under N.J.S.A. 40:55D-19, an applicant has

the burden of showing that "the proposed use is reasonably, not absolutely or

indispensably, necessary for public service, convenience and welfare at some

location." PSE&G, 35 N.J. at 376-77. The term "public" is expansive, i.e.,

regional, and does not mean only the local citizenry. Id. at 376. Further, the

Board must weigh all of the interests and factors to adjudicate the existence or

non-existence of reasonable necessity. Id. at 377.

Lynch, who had over thirty years of experience designing and operating

NJNG's system, stated that it would be "irresponsible" planning for NJNG to

A-3666-15 41 wait for a catastrophic event resulting in widespread loss of service before taking

steps to avoid or mitigate such an event. It was especially ill-advised to wait

since NJNG relied on a single interstate feed for nearly all of its gas supply to

its customers in the Central and Ocean Divisions.

Lynch also established that there had already been two service

interruptions in TETCO's interstate delivery system: the Entriken/

Chambersburg compressor station failures in January 2015, and the Delmont

compressor station failure during a 2014 polar vortex. Superstorm Sandy also

contributed to Lynch's conclusion that gas-feed redundancy was necessary to

avoid potentially devastating effects of a wide-scale supply interruption. Lynch

testified that, with a redundant gas feed in place, NJNG could have significantly

reduced, or avoided, service interruptions after the storm, since there were

significant portions of NJNG's territory "downstream" from storm-damaged

areas of the distribution system that were still "viable" and could have remained

in operation if there had been an available gas supply. Thus, contrary to

appellants' assertions, there was ample evidence in the record to support the

Board's conclusion that there was a need for the project.

Appellants argue that the Board should have rejected Lynch's reasoning,

explaining that NJNG, during each of TETCO's supply failures, was able to

A-3666-15 42 continue to provide service without a significant interruption. They also claim

that Superstorm Sandy does not support the need for the SRL because that storm

did not damage transmissions systems and did not interrupt the interstate supply.

However, it was not arbitrary or unreasonable for the Board to find that simply

because NJNG was able to avoid TETCO's service disruptions, this should

prevent it from preparing for a more severe disturbance or showing that the SRL

was "reasonably necessary for the service, convenience or welfare of the public"

pursuant to N.J.S.A. 40:55D-19. Also, Superstorm Sandy clearly demonstrated

the impact and cost that an extensive curtailment of service can have on a public

utility's customers.

PPA and SC further claim that the SRL is not necessary because NJNG

had previously undertaken six other infrastructure projects known as NJ RISE.

However, Lynch testified that the SRL was intended to complement, and not

replace, NJ RISE. He explained that NJ RISE was "the name of a group of six

NJNG projects approved by the [Board] in 2014 providing system enhancements

that improve NJNG's distribution system through storm hardening investments"

and "was submitted to the BPU in response to its January 23, 2013 Order inviting

regulated utilities to submit 'detailed proposals for infrastructure upgrades

designed to protect the State's utility Infrastructure from future Major Storm

A-3666-15 43 Events.'" Because four of those projects were secondary feeds to large single

feed distribution systems along the coast, the record supports the Board's finding

that the NJ RISE project did not render the SRL unnecessary.

Appellants also argue that because NJNG did not conduct an analysis

related to real-world failure scenarios, it could not quantify their likelihood, and

thus failed to demonstrate the need for the SRL as a redundant gas feed.

However, N.J.S.A. 40:55D-19 only requires NJNG to show that the SRL "is

reasonably necessary for the service, convenience or welfare of the public," not

that it is likely to experience a major large-scale supply interruption in the near

future. (emphasis added). The utility need not show that the proposed project

is "absolutely or indispensably" necessary. PSE&G, 35 N.J. at 377. Also,

contrary to PPA's assertion, nothing in NJNG's Distribution Integrity

Management Plan, the governing statutes, or applicable case law required NJNG

to seek an independent analysis to demonstrate that there was a likelihood of a

major supply system interruption to establish the need for the SRL. Therefore,

the Board appropriately relied upon Lynch's detailed testimony.

As explained above, we will not reverse an agency decision because of

doubts as to its wisdom or because the record may support more than one result.

Adoption of Amendments, 435 N.J. Super. at 583-84. We do not weigh the

A-3666-15 44 evidence, draw inferences and conclusions from the evidence, or resolve

conflicts therein. De Vitis, 202 N.J. Super. at 489-90. N.J.S.A. 48:2-46 states

that the Appellate Division can set aside the Board's order only "when it clearly

appears that there was no evidence before the board to support the same

reasonably." In light of these standards, we are satisfied that the Board did not

err by concluding that the SRL was reasonably necessary as a redundant gas feed

pursuant to N.J.S.A. 40:55D-19.

Appellants next argue that NJNG failed to adequately consider alternative

routes for the proposed pipeline and, therefore, the Board should have denied its

MLUL petition. Again, we disagree.

To support a MLUL petition under N.J.S.A. 40:55D-19, an applicant has

the burden of showing that no alternative route has less impact on the

environment or on the community. PSE&G, 35 N.J. at 368. Objectors to the

petition have the burden of showing the existence of a feasible alternative site.

Hackensack Water Co., 41 N.J. Super. at 425-26. Furthermore, under N.J.S.A.

48:9-25.4, the Board can designate the locations to be used for a pipeline

transmitting natural gas service if that route is "practicable."

At the evidentiary hearing, NJNG presented an expert report prepared by

AECOM and testimony by Baker on alternative routes for the pipeline. The

A-3666-15 45 report examined five alternate routes for the first section of the pipeline and four

alternate routes for the pipeline's second section. As previously discussed,

AECOM evaluated these routes using numerous quantitative factors: (1) built

environment (i.e., historical properties within 150 feet, school churches and

properties within 150 feet, residences within 150 feet, number of parcels

crossed, commercial and industrial buildings within 150 feet, and length within

state, county or agricultural preserved lands); (2) natural environment (i.e., land -

use/land-cover forests, stream crossings, land-use/land-cover wetlands, flood

zones and proximity to threatened and endangered species habitat); and

(3) engineering variables (i.e., miles within existing ROWs, miles paralleling

existing transmission line ROWs, number of bridge crossings, number of major

utility crossings, and length of pipeline in acidic soils).

The report also considered qualitative factors, including: visual concerns;

community concerns; special permit issues; construction/ maintenance

accessibility; and schedule delay risks. After weighing the importance of each

of those factors, AECOM determined that the route NJNG selected for the SRL

was the most feasible.

PPA asserts that the methodology AECOM used to compare the various

alternative routes was intentionally biased so as to make the JCP&L ROW Route

A-3666-15 46 appear more unattractive. The JCP&L ROW Route, however, was included as

part of one of the original batch of alternatives and, therefore, AECOM had

already devised its methodology prior to any proposal made by the

municipalities to use that route. Thus, there was no bias.

PPA further argues that the Board failed to consider the alternative route

proposed by the municipalities, Section One, Route D. However, Route D was

not a feasible or practicable alternative because the pipeline would cross

preserved farmland and environmentally sensitive lands.

Under the ARDA, pipeline construction on preserved farmland is

prohibited. The ARDA coordinates the development of county farmland

preservation programs within certain areas where agriculture is presumed the

first priority land use. N.J.S.A. 4:1C-12(c); Twp. of S. Brunswick v. State

Agric. Dev. Comm., 352 N.J. Super. 361, 364-65 (App. Div. 2002). In N.J.S.A.

4:1C-12, the Legislature found:

a. The strengthening of the agricultural industry and the preservation of farmland are important to the present and future economy of the State and the welfare of the citizens of the State, and that the Legislature and the people have demonstrated recognition of this fact through their approval of the "Farmland Preservation Bond Act of 1981," . . . ;

A-3666-15 47 b. All State departments and agencies thereof should encourage the maintenance of agricultural production and a positive agricultural business climate;

c. It is necessary to authorize the establishment of State and county organizations to coordinate the development of farmland preservation programs within identified areas where agriculture will be presumed the first priority use of the land and where certain financial, administrative and regulatory benefits will be made available to those landowners who choose to participate, all as hereinafter provided.

Landowners may petition the County Agricultural Board and/or the

municipality for the creation of a farmland preservation program or municipally -

approved program. N.J.S.A. 4:1C-20 to -21. Owners of land within a

"municipally approved program or other farmland preservation program" may

enter into an agreement with the County Agricultural Development Board and,

if necessary, the municipality "to retain the land in agricultural production," as

part of the sale of a development easement to the county or a non-profit

organization. N.J.S.A 4:1C-24(a)(1); N.J.S.A. 4:1C-31. That development

easement runs with the land and is "binding upon the landowner and every

successor in interest." N.J.S.A. 4:1C-32. Consequently, land preserved for

agricultural development cannot be used to develop non-agricultural public

utility infrastructure, nor can a public utility acquire an interest in property,

A-3666-15 48 preserved pursuant to ARDA, for a non-agricultural purpose such as

constructing a natural gas transmission line.

Furthermore, a public utility cannot exercise its power of eminent domain

to acquire an interest in preserved land under N.J.S.A. 4:1C-25, which states:

The provisions of any law to the contrary notwithstanding, no public body shall exercise the power of eminent domain for the acquisition of land in a municipally approved program or from which a development easement has been conveyed pursuant to section 17 of P.L.1983, c. 32 (C.4:1C-24), nor shall any public body advance a grant, loan, interest subsidy or other funds within a municipally approved program, or with regard to land from which a development easement has been conveyed pursuant to section 17 of P.L.1983, c. 32 (C.4:1C-24), for the construction of dwellings, commercial facilities, transportation facilities, or water or sewer facilities to serve nonfarm structures unless the Governor declares that the action is necessary for the public health, safety and welfare and that there is no immediately apparent feasible alternative. If the Governor so declares, the provisions of section 12 of P.L.1983, c. 32 (C.4:1C-19) shall apply.

Moreover, Section One, Route D required the pipeline to cross the most

streams, wetlands, and lands with threatened and endangered species habitats.

In his report, Baker assigned Route D a high value with respect to special

permits because it crossed a considerable length of preserved farmlands

restricted to agricultural use and environmentally sensitive lands. Thus, the

Board did not err by concluding that Route D was not feasible.

A-3666-15 49 Therefore, we are satisfied that the evidence supported the Board's

determination that NJNG met its burden to show that "its proposed routing [was]

reasonable, and that no alternative route is less intrusive to the environment or

community."

Finally, appellants assert that NJNG intends to use the SRL only for

profitability and not for reliability, which they claim proves that the Board's

conclusions are arbitrary and capricious because the SRL link is not "necessary

to maintain reliable . . . natural gas supply service for the general public," or

"necessary for the service, convenience or welfare of the public." PPA and SC

further assert that the size of the proposed SRL is larger in capacity than NJNG

needs to provide any redundant service to its existing customers, which supports

the company's intent only to grow its business. These contentions lack merit.

There is nothing in N.J.S.A. 40:55D-19 or in PSE&G, 35 N.J. at 376-77,

that prevents a gas transmission company from making a profit or from

attracting new customers by installing a new transmission line. As we stated

previously, NJNG must show only that the SRL link is "reasonably, not

absolutely or indispensably, necessary for public service, convenience and

welfare." PSE&G, 35 N.J. at 377.

A-3666-15 50 Moreover, NJNG offered sufficient evidence justifying its decision to

install a thirty-inch, rather than a twenty-four-inch, transmission pipeline. First,

NJNG demonstrated that a thirty-inch diameter line was necessary to meet its

peak demand by presenting "iterative flow modeling," showing various

hypothetical demand and supply situations modeled on its current system with

the SRL in place.

Second, a thirty-inch diameter pipeline was equal to NJNG's existing

system connector with TETCO's interstate pipeline in Middlesex County and

other recently installed segments. Third, NJNG showed that a thirty-inch

diameter pipeline would allow greater capacity from new interstate suppliers in

the future. Based on this evidence, it was certainly within the Board's discretion

and expertise in reviewing the construction and development of natural gas

transmission lines to find, contrary to appellants' claims, that a 180,000 Dth/day

contract was not an appropriate tool to determine the correct size of the pipe for

the project. Thus, the Board did not err by finding that the proposed thirty -inch

SRL was reasonably necessary as a redundant gas feed pursuant to N.J.S.A.

40:55D-19.

The Division of Rate Counsel argues that because a smaller diameter line

would be sufficient to transport the amount of gas set forth in the NJNG contract,

A-3666-15 51 only the cost of a twenty-four-inch line should be borne by ratepayers. However,

as Rate Counsel concedes in its brief, "this matter is not a base rate proceeding"

and, therefore, there is no need to address this contention further here.

VI.

All other arguments raised in this appeal, to the extent we have not

addressed them, are without sufficient merit to be discussed. R. 2:11-3(e)(1)(E).

VII.

In sum, we affirm the Board's March 18, 2016 decision and order granting

NJNG's MLUL petition. The Board's decision is supported by sufficient

credible evidence in the record and is neither arbitrary, capricious, nor

unreasonable.

Affirmed.

A-3666-15 52