In re N.J. Dep't of Envtl. Prot. CAFRA Permit No. 0000-15-0007.1 CAF 150001

IN THE MATTER OF NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION CAFRA PERMIT NO. 0000-15-0007.1 CAF 150001 AND FRESHWATER WETLANDS PROTECTION ACT PERMIT NO. 0000-15-0007.1 FWW 15001 ISSUED TO NEW JERSEY NATURAL GAS.

DOCKET NO. A-3293-16T1

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Submitted March 27, 2019

July 22, 2019

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

Before Judges Fuentes, Vernoia and Moynihan.

On appeal from permits issued by the New Jersey Department of Environmental Protection, Nos. 0000-15-0007.1 CAF 150001 and 0000-15-0007.1 FWW 15001.

Potter and Dickson, attorneys for appellants People Over Pipelines, Inc., Agnes Marsala, Rita Romeu, Glen Ashton, Katherine Marlin and Michael Marlin (R. William Potter, on the brief).

Gurbir S. Grewal, Attorney General, attorney for respondent New Jersey Department of Environmental Protection (Jason W. Rockwell, Assistant Attorney General, of counsel; Bruce A. Velzy, Deputy Attorney General, on the brief).

Riker, Danzig, Scherer, Hyland & Perretti LLP, attorneys for respondent-intervenor New Jersey Natural Gas Company (Dennis J. Krumholz, of counsel and on the brief; Laurie J. Sands and Michael S. Kettler, on the brief).

PER CURIAM

Appellants Agnes Marsala, Rita Romeu, Glen Ashton, Katherine Marlin, Michael Marlin, all individually, and People Over Pipelines, Inc. (POP) challenge the issuance of a joint permit by the New Jersey Department of Environmental Protection (the Department) under the Coastal Area Facility Review Act (CAFRA), N.J.S.A. 13:19-1 to -21, and the Freshwater Wetlands Protection Act (FWPA), N.J.S.A. 13:9B-1 to -30, authorizing intervenor New Jersey Natural Gas Company (NJ Gas) to install a .68 mile long portion of a thirty-mile natural gas transmission pipeline (SRL), which would cause "the permanent disturbance of 0.021 acres of freshwater wetlands and 0.170 acres of freshwater wetland transition area, and temporary disturbance of 0.378 acres of freshwater wetlands and 5.54 acres of freshwater wetland transition area."

Appellants in their merits brief assert:

Point IThe [Department] Failed To Identify Sufficient Facts In The Record Supporting The CAFRA Permit Granted To [NJ Gas] For A Segment Of The SRL Pipeline Project.

Point II

The CAFRA Criteria For Issuance Of A Permit Have Not Been Met By The Facts Of Record.

Point III

The [Response To Public Comments] Revealed Fatal Defects And Failed To Provide The Necessary Support To Sustain The [Department] Permits.

Point IV

The CAFRA Statute Requires Findings To Be Made By The Commissioner Of The [Department] And There Is Nothing In The Record To Show That [The Department Employee Who Prepared Those Findings] Was Properly Delegated The Required Statutory Authority.

The Department's determination, fairly supported by sufficient evidence in the record which we have closely reviewed, was not arbitrary, capricious or unreasonable. Consequently, we affirm.

We first address NJ Gas's challenge to appellants' standing. Typically, "[t]o possess standing in a case, a party must present a sufficient stake in the outcome of the litigation, a real adverseness with respect to the subject matter, and a substantial likelihood that the party will suffer harm in the event of an unfavorable decision." In re Camden County, 170 N.J. 439, 449 (2002). UnderNew Jersey's liberal approach to standing, "owners of other properties in the vicinity of a property for which a permit or other land use approval has been granted may appeal the approval." In re Issuance of Access Conforming Lot Permit No. A-17-N-N040-2007, 417 N.J. Super. 115, 126 (App. Div. 2010). In a CAFRA case, all that is necessary is a "slight private interest, added to and harmonizing with the public interest." SMB Assocs. v. N.J. Dep't of Envtl. Prot., 264 N.J. Super. 38, 46 (1993) (quoting Elizabeth Fed. S & L Ass'n v. Howell, 24 N.J. 488, 499 (1957)), aff'd, 137 N.J. 58 (1994); see also N.J. Dep't of Envtl. Prot. v. Exxon Mobil Corp., 453 N.J. Super. 272, 301 (App. Div. 2018), certif. denied, 233 N.J. 378 (2018). We have explained

the right to seek judicial review of administrative decisions "inheres not only in those who are direct parties to the initial proceedings before an administrative agency . . . but also belongs to all persons who are directly affected by and aggrieved as a result of the particular action sought to be brought before the courts for review."

[SMB Assocs., 264 N.J. Super. at 46 (alteration in original) (quoting Elizabeth Fed. S & L Ass'n, 24 N.J. at 499-500).]

In SMB Associates, we concluded that the appellants - "a non-profit organization whose goal is to encourage the study and conservation of marine life and its habitat," the executive director of that non-profit group who"personally use[d] the coastal waters of New Jersey for recreation," and a fisherman whose fishing waters were affected by the Department's decision - had standing, despite failing to participate in the public proceedings prior to the approval of CAFRA permits. Id. at 44-45, 47. We asked rhetorically, "if appellants do not have standing, 'who then is there who can or will challenge' the [agency action], thereby advancing the public interest?" Id. at 47 (quoting In re Waterfront Dev. Permit No. WD88-0443-1, Lincoln Harbor Final Dev., 244 N.J. Super. 426, 438 (App. Div. 1990)). Affirming our decision, the Supreme Court ruled "the Appellate Division did not err in concluding that [the non-profit group], as an association concerned with the preservation of our coastal resources, had sufficient interests in the water-dependent development issues of this case to appeal the [government] action under Rule 2:2-3(a)(2)."¹ SMB Assocs. v. N.J. Dep't of Envtl. Prot., 137 N.J. 58, 61-62 (1994). More recently, we held an environmental group had standing to challenge a settlement between the Department and Exxon because of "their broad representation ofcitizen interests throughout this state." Exxon Mobil Corp., 453 N.J. Super. at 301.

Under those standards, POP - which essentially argues the equitable relief of a remand to the Department is required because, in granting the permit, the Department took inadequate action to protect the environment - has standing. Rita Romeu, vice president of POP, commented at the public hearing that POP represents "the community members from Chesterfield, Bordentown, North Hanover, Upper Freehold, and other cities that are going to be affected by this." As such, POP's representation of people from various municipalities through which the pipeline will be constructed established its standing.² See Exxon Mobil Corp., 453 N.J. Super. at 294.

The standard for individual standing, however, is not as broad. In Exxon Mobil, we determined that although an environmental group had standing, the residency of a state senator who lived in a city adjacent to that in which the refinery in question was located did not provide him with standing because he lacked "a sufficient 'personal or pecuniary interest or property right adverselyaffected by the judgement.'" Id. at 301 (quoting State v. A.L., 440 N.J. Super. 400, 418 (App. Div. 2015)).

The burden of providing facts to establish standing is on appellants. See N.J. Shore Builders Ass'n v. Twp. of S. Brunswick, 325 N.J. Super. 412, 419-420 (App. Div. 1999). Our review of the record, which appellants have not moved to supplement, Rule 2:5-5(b), reveals: Agnes Marsala did not state where she resided, only that she had previously driven past the affected area; Rita Romeu noted that she was a resident of Chesterfield but, beyond her office in POP and her statement that she is a resident of Chesterfield, and unlike the executive director in SMB Associates, did not provide any facts to establish her personal, pecuniary or property interest that will be affected by the pipeline;³ Glen Ashton did not state where he resides or his personal interest in the pipeline project; Katherine Marlin did not say where she resides; and Michael Marlin did not speak at any hearings and the record is bereft of any interest he has in the pipeline project. Thus the record before us is insufficient to establish standing for the individual appellants. Nevertheless, since POP has standing,we will address the merits of the appeal. We note that POP and the individual appellants advanced the same arguments in a joint merits brief. Our ruling that the individual appellants do not have standing, therefore, has no effect on our ultimate determination of this appeal.

We are unpersuaded by POP's arguments that the Department granted the permit without making requisite factual findings and that there is insufficient credible evidence in the record that the statutory CAFRA criteria were met. Our review of the permit and related twenty-six page environmental report and fourteen-page response to public comments belies POP's former argument which, itself, is a meager, bald assertion unsupported in the merits brief by any facts. The documents prepared by the Department adequately "set forth basic findings of fact, supported by the evidence and supporting the [Department's] ultimate conclusions and final determination," thus fulfilling its substantive responsibility to the public and the courts. In re Issuance of a Permit by Dep't of Envtl. Prot. to Ciba-Geigy Corp., 120 N.J. 164, 172-73 (1990) (quoting In re Application of Howard Savings Inst., 32 N.J. 29, 52 (1960)).

Those same documents evidence facts that supported the Department's grant of the CAFRA permit thus surmounting POP's latter argument.⁴ "In our review of this administrative decision we are necessarily limited to a narrow function, namely, to determine whether there is sufficient evidence in the record as a whole to justify the determination reached below."...