COUNSEL. (APPEARANCES TENDERED). CHIEF JUSTICE RABNER: WELCOME, MS. ROY.
CHRISTINE A. ROY: THANK YOU. MAY IT PLEASE THE COURT, I WOULD LIKE TO RESERVE
2 MINUTES REBUTTAL PLEASE. CHIEF JUSTICE RABNER: THAT'S FINE.
CHRISTINE A. ROY: WE ARE HERE TODAY BECAUSE THE APPELLATE DIVISION EFFECT IF I HAVELY
RE YOET EXCEPTION LICHTD THE HIGHLAND ACT AND IN DOING SO, THERE'S AN UNREASONABLE RESULT,
IT'S INCONSISTENT WITH THE LEGISLATURE AND WITH THE DEPARTMENT'S LONG STANDING INTERPRETATION
OF THAT EXCEPTION SHUN. AS YOU KNOW, EXEMPTION 11 EXEMPTING THE FOLLOWING
ACTIVITIES UTILITIES THE ROU TOON MAN TENSE AND OPERATIONS, REHABILITATION ARE, PRESERVATION,
RECONSTRUCTION, ROW PAIR OR UPGAIT AGRADE, BUT THERE ARE TWO EXPRESS LIMITING PRINCIPLES
THAT ARE ALREADY BIMENT INTO THE EXEMPTION, THAT IS THE ACTIVE ARE THE MUST BE PERFORMED
ON THE PUBLIC UTILITIES LINES RIGHTS OF WAY OR SYSTEMS. AND ALSO THE ACTIVE VLT MUST BE
CONSISTENT WITH THE GOALS AND PURPOSES OF THE HIGHLANDS ACT. PARAGRAPH PAG THE LEGISLATURE
CAREFULLY BALANCED 2 PUBLIC POL SOS WITH THIS EXEMPTION, THE 1ST BEING HE THEY WOONED
TO ENSURE THE PUBLIC UTILITY ROW LIABLE SERVICE TO ITS CUSTOMERS AND IT ALSO WAUZ PROTECTING
THE EN VIERN MEN RESOURCE IN THE HIGHLANDS REGION. THE RUMENT OF THE
DISCUSSION NOW IS PUBLIC UTILITIES CAN NO LONGER THE EXEMPTION 11 FOR NONROUTINE ACTIVITIES
WHICH MAKE NO SENSE, IN FACT THAT DECISION REALLY IS COULDN'T TREER TO THE PUBLIC POLICIES
THAT'S ALREADY BUILT INTO THE EXEMPTION. THE APPELLATE DIVISION'S STERP POSITION IS
UNREASONABLE LTS BECAUSE IT REALLY ISN'T CONSIST. WITH WHAT THE WORLDLY PUB MRIK WROULTS
DO. NAME THE PHRASE ROU TONE PAIN TENSE AND SOPGS A TERM OF ART IN THE PUBLIC UTILITIES
WORLD. THEERS ACTIVITIES THAT ARE DONE, THEY'RE OF COMMONPLACE, OF REPETITIOUS CHARACTER,
REALLY NOT FOR ANY REASON BUT YUFT TO ENSURE THAT THEIR FACILITIES ARE OCHTING SAFERLY
AND SO THERE'S UNINTERRUPTED SERVICE AGAIN. SO HOWEVER THE OTHER ITEMS IN THE LIST ARE
ONLY DONE AS NEEDED, THEY'RE TYPICALLY NOT EVER DONE ROUTINELY. SO HERE
IS WHAT THE APPELLATE DIVISION DID WRONG, I THOUGHT I WOULD JUFLT GET TRITE THAT. THEY
IGNORED THE PLAIN LANGUAGE OF THE EXEMPTION, THEY FAILED TO GIVE ANY DEFERENCE TO DPS
LONG-STANDING EXEMPTION 11, EVEN THOUGH ET FOUND THEIR INTERPRETATION TO BE PLAUSIBLE.
AND THUS NOT PLAINLY UNREASONABLE WHICH IS THE STAND DASHED WHICH THE COURT NEVER EVEN
ADDRESSED, THE PLAINLY UNREASONABLE STANDARD. THE APPELLATE DIVISION ALSO
FAILED TO CONSIDER THAT PORTION OF THE LEGISLATURE'S POLICY STATEMENT WHICH
RECOGNIZES THE IMPORTANCE OF PROVIDING EVERY CONCEIVABLE OPPORTUNITY TORE APPROPRIATE
ECONOMIC GROWTH AND DEVELOPMENT, TO ADD LANCE THE QUALITY OF LIFE THE RESIDENTS OF REGION
AND THE AND TIRE STATE MUCH THE COURT OHM REALLY FOCUSED ON THE HIGHLAND RESOURCES AND
THE BRO TEKZ OF THOSE RESOURCES. PAR PARAGRAPH THE COURT ALSO RELIED UPON TWO CANONS
OF STATUTORY KRUK THAT WE DON'T REEL BELIEVE BELONG HERE ARE WERE THE SEER RES QUALM FIER
CAN NAN WHICH IS WHERE YOU HAVE A MODIFIER AND A LIFRT OF ACTIVITIES OR LIFRT OF THE NOUNS
OR SOMETHING AND HERE THIS EX CEMENT SHUP WASN'T RIN THAT WAY, IN ORDER TO GET THERE THE
CHORT TO IGNORE THE WORD AND IN BETWEEN MAINTENANCE AND OCHGSS AND THE OR AT THE END
OF THE LIST BEFORE UPGAIT. THE COURT ALSO UTILIZED THE ASSOCIATE WORDS CANNON WHICH WAS
OBVIOUSLY DIDN'T MAKE SENSE TO US EITHER BECAUSE IT FOUND TO BE THE OUTLIER AND WE DON'T
MREEFSH UPGRADE WAS THE OUTLIER, UCH GRADE AND OTHER ACTIVITIES AFTER ROUTINE MAINTENANCE,
THEY'RE ALL NONROUTINE ACTIVITIES, THEY'RE ALL ONLY AS NEEDED. SO AND ALSO, YOU KNOW,
IN BEING IN THE PUBLIC YUMENT WORLD EVERYTHING YOU SEE IN THAT EXEMPTION IS THE UNIVERSE
OF ACTIVITY OF A PUBLIC UTILITIES WOULD UNDERTAKE TO EP SLUR THEY HAVE RELIABLE SERVICE,
SOIT MAKES COMPLETE SENSE TO IN THE PUBLIC UTILITIES, AS TO PUBLIC UTILITIES THAT
EVERYTHING YOU SEE ISN'T THE PAN IN A PLEA OF ACTIVITIES, THEY DO ALL BELONG TOGETHER IT
MAKES PERFECT SENTENCE. SO INSERTING A FREQUENCY REQUIREMENT R REALLY DOES
NOTHING TO MAKE THE ITEMS MORE SIMILAR, WE DIDN'T THINK UNDERSTAND OR DIDN'T THINK APPLIED,
JUST TO POINT POUT TENNESSEE'S PROJECT IS REALLY THE PERFECT EXAMPLE OF WHY DEP LONG STANDING
INTERPRETATION IS THE CORRECT ONE FOR, ENERGY REGULATORY COMMISSION, THEY FOUND THEIR
PROJECT TO BE IN THE PUBLIC CONVENIENCE AND NECESSITY BECAUSE THERE WAS A REQUEST FOR
SERVICE BASIC MANY, A REQUEST FOR EN CREASE THE CAPACITY WITH CONED. SO THEY UPGRADED
US TO THEIR SYSTEM THAT, CHICKS THE BOX ON THE 91ST LIMITS PRINCIPLE MUCH THE SECOND
LIMITING WAS TO PRO HIGHLAND RESORNSZ EFFECTIVELY THIS PROJECT, WHEN IT WENT TO CONSTRUCTION
HAD ZERO IMPACTS TO HIGHLANDS RESORTS. MARNG PARAGRAPH SO I THINK THIS PROJECT REALLY
HIGHLIGHTS WHY THE WORD ROUTINE REALLY DOESN'T FURTHER THE PUBLIC POLICIES OF THE HIGHLAND
ACT THE WAY THE APPELLATE DIVISION SEEMED TO THINK IT DID. SO WITH THAT IF THERE'S ANY
QUESTION I'D BE HAPPY TO ANSWER THEM. PT. CHIEF JUSTICE RABNER: THERE'S
A QUESTION OF MOOTNESS IN THIS CASE. HOW OFTEN DOES IKS SEM SHUN 11 COME UP, HOW OFTEN
WOULD A QUESTION OF A NATURE PRESENTED HERE PRESENT ITSELF. ROIFZ ROY I'LL SPEG AS TO
TENNESSEE GAS THIS THE THIRTDZ EXEMPTION 11 IT RECEIVED FOR SAERS UPGRADE PROJECTS THAT
THEY HAVE DONE SINCE 2009. SO IT HAS COME UP AND TENNESSEE IS AN INTERSTATE NATIONAL
GAS PIPE MRIEN, NOT AN INTRASTATE FACILITY SO THE DOES COME UP T I THINK IF YOU WENT AN
AN NECK TOTALLY IF YOU WENT ONTO THE HIGHLANDS KOUN COUNCIL REMEMBER SITE LETTER REQUEST
OF FROM A PROBATION OFFICER SO YOU CAN ARE LTS EE NEEDED SOMETIME TO OR QUITE FREQUENT
LY TO DO WHAT IT NEEDS DO RNGS WHAT YULTS FLEED DO IF THEIR OWN JUDGMENT TO PROVIDE RELIABLE
SERVICE WHICH IS THEIR LEGAL MAN INDICT DO. CHIEF JUSTICE RABNER: THE EXAMPLE
YOU'RE FAMILIAR WITH, THEY DON TWIET HAVE THE RESOLVED IN COURT SHTH THEY ADDRESS THE
PROBLEM AND YUR HOPING FR A RULING NOW AS A RESULT OF THAT? CHRISTINE A.
ROY: YES. CHIEF JUSTICE RABNER: POSSIBILITY OF REPETITION.
CHRISTINE A. ROY: THIS CAPABLE OF REPETITION, THERE'S A RACK CAN YOU TELL EFFECT IF THE
COURT INTERPRETING THE EXEMPTION NOW DE NOVO. JUSTICE WAINER APTER: WHY
WOULD IT BE REVIEWED SOMETHING CAPE AM. EE VAGD REVIEW IS BECAUSE BY NATURE THE THIMG
THAT'S BOWING CHALLENGED IS VERY SHORT-LIVED, HERE THE DEP DIDN'T HAVE TO GO AHEAD AND
DETERMINE THAT THAT IT WAS A ROUTINE UPGRADE, RIGHT? CHRISTINE A. ROY:
CORRECT. YEAH, THEY HAVE HISTORICALLY FOUND OR INTERPRETED EXEMPTION 11 TO MEAN ROUTINE
ONLY MODIFYING MAINTENANCE AND OPERATION ACTIVITIES. JUSTICE PATTERSON:
AND THERE IS A PUBLISHED OPINION. CHRISTINE A. ROY: YES THE APPELLATE
DIVISION THERE ACKNOWLEDGE THE PUBLIC POLICY BEHIND HAVING RELIABLE SUB BLIK UTILITY
SERVICE. THITS APPELLATE PALM DID NOT AND I THINK THERE WAS A BIG DIFFERENCE THE 2 DECISIONS,
ALTHOUGH THAT COURT FOUND THEY DIDN'T REACH THE DECISION ABOUT WHETHER IT REQUIRED, YOU KNOW,
AN UPGRADE HAD TO BE A ROUTINE UPGRADE AND THAT WAS AT JCP&L CASE AND THAT INVOLVED, IT
HAD AN ABOVE GROUND FACILITY SUCH AS WHAT WE HAVE HERE, IT WASN'T A COMPRESSOR STATION
BUT IT CERTAINLY WAS ALMOST IDENTICAL FACTS. TS, THE APPELLATE DIVISION PT TRP TAGS IS
WHAT IS CURRENTLY PRESIDENTIAL. AND THERE IS CURRENTLY, THERE'S STILL AN APPEAL TEND
PENDING WITH REGARD TO THE HAD THAT WAS ISSUED BY THE DEP IN JANUARY YES.
CHRISTINE A. ROY: YES, SO WHAT HAPPENED WAS THE DECISION CAME OUT AND SO FROM THERE TENNESSEE
GAS OUT OF AN ABUNDANCE OF CAUTION DID SUBMIT ADDITIONAL SUPPLEMENTAL INFORMATION TO THE
DEPARTMENT TO SAY, OKAY, WE DON'T AGREE WITH THE APPELLATE DIVISION'S DECISION, BUT WE
TWOOPT HAVE LEGAL AUTHORITY TO TO WHAT WORRY DOING, WE DON'T WANT TO BE OUT OF COMPLIANCE
AND THERE WERE SOME THREATS BY EN VOIRN MENTAL GROUPS SUN STOP THE PROJECT CONSTRUCTION
SO THI SUBMITTED INFORMATION TO STATE THAT IF YOU LOCK AT THIS FROM A VERY BROAD SENSE,
OUR UPGRADE PROJECT SUCH AS THIS ARE THEY ROUTINE RPTS SO THEY DID DO THAT, BUT REALLY
I DON'T WANT TO SAY UNDER PROTEST PUT YUFT TO SAY OUT OF NECESSITY AND YOU KNOW T MANAGE
THE RISK OF LITIGATION TO STOP THE PROJECT THAT THEY DON'T HAVE ANY, YOU KNOW, THEY'RE
DOING THIS ILLEGALLY. THEY DID. JUSTICE PATTERSON: BASICALLY A BACK STOP
ARGUMENT. CHRISTINE A. ROY: THAT'S RIGHT. CHIEF JUSTICE RABNER:
OU ELABORATE FOR US THE MEANING OF UPGAD, WHAT DOES THE EP CAMPUS? CHRISTINE
A. ROY: UPGRADE WOULD BE AN ENHANCEMENT, AN I WILL PROOF; IT COULD BE AN ADDITION. I THINK
I CAN GIVE YOU A COUPLE OF REAL LIFE EXAMPLE,S THAT WAS A COMPRESSOR STATION. SO TENNESSEE
GAS ENDED UP OOFR DOING SOME MODELING, HYDRAULIC MODELING DECIDED THIS WAS THE MOST, IT WAS
A LIMIT THE PROJECT THAT COULD FULFILL THE REQUEST FOR ADDITIONAL COMPASS SAT. THERE'S
OHM THREE DAY IN THE INTERSTATE PIPELINE WORLD TO DO THAT, 1 WOULD BE A PIPELINE LOOP
WHICH MEANS THEY WOULD BE BUILDING A LOOP, IMMEDIATELY ADJACENT TO THE EXISTING PIEM
LINE AND THESE FACILITIES, BY THE WAY, I THINK THE HE' IMPORTANT TO NOTE RNGS 10 CEASE
FACILITIES HAVE BEEN THERE SINCE THE 1950'S AND I WOULD ALSO JUST, WE DO REPRESENT JCP&L
P OTHER UTILITIES AND I WOULD SAY A LOT OF THE UTILITIES IN STATE ARE VERY OLD, THEY'RE
FROM 1913, 1950 THE, 1930S, SO THAT'S IMPORTANT TO NOTE BECAUSE I THINK THE LEGISLATURE
UNDERSTOOD THAT THE HIGHLANDS ACT WAS POOFD AFTER THIS AND THAT THEY WOULD HAVE TO LTS
LOOK AT FAMENTS THAT ARE THERE AND PLACE IN THE HIGHLAND PRESERVATION AREA. BUT
GETTING BACK TO YOUR QUESTION, TENNESSEE COULD HAVE OR MET THE REQUEST BY THE CUSTOMER
BY ONE OF THROW THING, WAS WASES THAT UPGRADE THAT THEY ENDED UP DOING, HOIP LINE LOOPING
WHICH HAS FAR GREATER EN VIERN MEN IMPACT THE OR THEY COULD HAVE DONE A COMBINATION OF
UPGRADE OR LOOPING. SO HERE THEY DID THE UPGRADE AND REALLY BECAUSE IT HAD THE LEAST
AMOUNT OF ENVIRONMENTAL IMPACTS. THAT'S WHAT THEY WERE LOOKING ALT TO COMPLY WITH THE
LAW HERE AND THE PUB MRIK POLICY OF THE DEP. JUSTICE PATTERSON: AND THIS
WERE YOU A FORMER QUARRY. PT ROIP PROI IT WAS A FORMER QUARRY, AN INDUSTRIAL SITE THAT WAS
YUCHD BY VARIES PROJECTS OVER THE THE YEARS, SO THEY PURPOSELY PICKED THIS SITE, THEY
COULDN'T AVOID THE PRESSER RAGS AESHGS ONCE THEY KNEW, THEY NOW THAT FROM HIGH DROL MILK
TEFTH AND MODELING THAT IN ORDER NO BOOST THEIR SYSTEM WITH COMPRESSION, THEY HAD TO THE
RPT BE IN A CERTAIN YOU KNOW SDOONS FROM THE NENGS COMPRESSOR STATION SO THIS WHY IT HAD
TO BE IN THE PRESERVATION AREA. BUT FROM THERE THAT'S WHERE THEY LOOSHG AT VARIOUS SITES,
IT'S ALL IN THEIR ALTERNATIVES ANALYSIS WITH FERC AND WE DID PROVIDE AS PART OF OUR APPLICATION
FOR HIGHLANDS APPLICABILITY DETERMINATION AND I THINK THAT'S OTHER THING THAT THE APPELLATE
DIVISION FAILED TO RECOGNIZE WHICH PUBLIC UTILITIES ARE HIGHLY REGULATED, THEY'RE ONLY
GOING TO DO WHAT IS NETSDZ TO PROVIDE SERVICE OR IF THERE'S A SERVICE REQUEST OR ADDITIONAL
CAPACITY NEEDED, THEY'RE GOING TO FIENT LEAST IMPACT FULL WAY TO DO THAT AND THAT'S WHAT
FERC REQUIRES, THAT'S EVEN B.P.U. I'M THEY'RE GOING TO BE LOOKING TO DO WHAT THEY'RE ONLY
ALLOWED TO DO BY LAW. SO THAT, I JUST, I THINK THAT'S THE POINT THAT THE APPELLATE DIVISION
MISSED. CHIEF JUSTICE RABNER: TLEES GO AHEAD IF THERE'S ANYTHING IN
ADDITION YOU WOULD LIKE TO PRESENT. P. CHRISTINE A. ROY: HIENL THAT'S IT.
I'LL BE BACK ON REBUTTAL, THEY'RE. CHIEF JUSTICE RABNER: TLAUK, MR. KOTT.
DAVID R. KOTT: THERE IS ONE THING EVERYONE IN THIS COURTROOM CAN AGREE ON,
AND THAT IS ON APRIL 5TH OF THIS YEAR, NEW JERSEY WAS EXTRAORDINARILY LUCKY WHEN THE EARTHQUAKE
THAT HIT NORTHWEST NEW JERSEY DID ALMOST NO DAMAGE BUT SUPPOSE THAT EARTHQUAKE HAD DONE
SEVERE DAMAGE AND TAEN OUT THE ENTIRE LENGTH OF THE ENTIRE PIPELINE, AND TENNESSEE HAD
TO RECONSTRUCT THE PIPELINE, THERE WOULD BE NOTHING ROUTINE ABOUT THAT RECONSTRUCTION.
MANY HERE WE'RE DEALING WITH AN UPGRADE. UPGRADES BY THEIR NATURE ARE NOT ROUTINE.
THEY'RE ONLY DONE WHEN THERE IS A NEED. AND I THINK UPD YOUR MANY DECISIONS ON STATUTORY
INTERPRETATION, THAT'S OUTCOME DETERMINATIVE BECAUSE YOU SAID A NUMBER OF TIMES, WHEN
THE WORDS OF THE STAFRPT ARE CLEAR, WE DON'T GO ANY FURTHER. BUT I RECOGNIZE
THE APPELLATE DIVISION HERE DID NOT FIND THE STATUTE CLEAR. AND FOCUSED ON THE OVERALL
INTENT OF THE HIGHLAND ACT WHICH WAS TO PRESERVE THE EP VIERN MENT. AND WE AGREE, THAT IS
THE PRIMARY INTENT OF THE HIGHLAND ACT. BUT THE LEGISLATURE MET THAT GOAL,
PRESERVATION OF THE HIGHLANDS IN TWO WAYS. IN EXEMPTION 11, NUMBER 1, THEY SAID ANY HE CAN
SEM SHUP HAS TO BE CONSISTENT WITH THE GOALS AND POLICIES OF THE HIGHLANDS ACT.
THE SECOND WAY AS TO UPGRADES, IT'S NOT ANY UPGRADE, IT'S AN UPGRADE OF A PUBLIC
UTILITIESES LINES, RIGHTS OF WAYS OR SYSTEMS. AND THAT'S HOW THE LEGISLATURE WITHIN EX
SEM SHUP 11 MET ITS GOAL OF PROTECTING THE HIGHLANDS. LET ME GET A LITTLE
BROADER BECAUSE I THINK THE LEGISLATURE WAS ALSO TRYING TO DO A BALANCE HERE. ONE OF THE
THINGS THE LEGISLATURE IS IMPOSED ON TENNESSEE AND ON OTHER PUBLIC UTILITIES BY STATUTE
IS THAT THEY PROVIDE RELIABLE SERVICE. PT RADIO LIABLE SERVICE IS CRUCIAL TO THE NURSING
HOME, IT'S CRUCIAL TO THE POLICE DEPARTMENT, THE HE A CRUCIAL TO CONSUMERS, THE A CRUCIAL
TO MY CLIENTS, THE B IS COMMUNITY. THE OTHER THING THAT THE LEGISLATURE PUT RIGHT IN THE
HIGHLANDS ACT WAS THAT THERE SHOULD BE ECONOMIC DEVELOPMENT IN AND GROWTH NOT HIGHLANDS.
SO INNING DO THE BALANCING OF WE NEED RELIABLE SERVICE, WHICH WE DO, AND
WE WANT ECONOMIC GROWTH, BUT, ON THE OTHER HAND, WE WANT TO PROTECT THE EN ENVIRONMENT,
THE LEGISLATURE MET THAT WITH BY THE WAY HAD HE WORED EXEMPTION LEFRP. CHIEF JUSTICE
RABNER, THAT WAS THE COURT KNOWS I'M A PREPARED LAWYER, I JUST WAVENTED TO ADD ONE OTHER
THING IF I MAY RIGHT OUT OF THE BOX ON THE MOOTNESS. AND I'M FAMILIAR WITH YOUR
JURISPRUDENCE, THERE'S ANOTHER THING KICKING AROUND HERE ON MOOTNESS AND THAT IS THIS.
THIS IS A VERY IMPORTANT ISSUE AND SOMEBODY IS GO TO ASK HE MOO BY DEFINITION WE GRANTED
CERTIFICATION, WE OERNLY GRAPT CERTIFICATION IF IT'S AN IMPORTANT ISSUE. BUT WHAT'S
DIFFERENT HERE IS WE HAVE BE I HOPE WE DON'T, HURRICANE SANDY, SEPTEMBER 11TH, AN EARTH
KWAT AQUAKE. THESE YOULTS NEED TO GET UP AND RUNNING QUICKLY. AND THE REGULATORY PROCESS
TAKES LONGER. BUT WHAT'S DIFFERENT HERE FROM YOUR ON THE MOOTNESS CASES IS WE HAVE A
RESPONDENT AND I WENT TO BE CLEAR, THEY'RE ACTING IN AN ABSOLUTE GOOD FAITH, ABSOLUTE
GOOD FAITH BUT A RESPOND DEPARTMENT WHO HAS RESOURCES, GREAT LAWYERS AND IS VERY
AGGRESSIVE ABOUT LITIGATING THESE ISSUES. THE RECORD IN THIS CASE SHOWS THAT.
SO UNLIKE OTHER MOOTNESS CASES THAT YOU HAVE, HERE WE NEED A DECISION OF THIS COURT IF
WE HAVE ONE OF THOSE CLAM TEES, IT'S NOT ONLY THE DELAY CAUSED BY THE REGULATORY PROCESS,
BUT IT IS A SAFE BET AND WE ALL LIVE IN THE REAL WORLD, THAT THE ENVIRONMENTAL GROUPS
WILL GET INTO LITIGATION THAT WILL DELAY GETTING THE SYSTEM UP AGAIN. PT THE THE.
JUSTICE WAINER APTER: THE APPELLATE DIVISION COULD STILL DECIDE THAT IT WAS NOT A ROUTINE
UPGRADE. DAVID R. KOTT: THAT'S WHAT DISTINGUISHES THIS CASE FROM THE
AUTOMOBILE SKWT THAT THE RELEASE IS GIVEN AND THE MONEY IS PAID. THERE'S STILL LITIGATION
GOING ON HERE JUSTICE WAINER APTER AND THAT'S WHAT DISTINGUISHING THIS CASE FROM MANY
OF YOUR MOOTNESS DECISIONS. ON PIPE OF OF NEW JERSEY BUSINESS INDUSTRY ASSOCIATION MAY
I THIG K THE ENTIRE COURT AGAIN FOR GRANTING US LEAVE TO APPEAR AS AN AMICUS AND GRANTING
US ORAL ARGUMENT. PL, JK P&L, J C P&L, PSE&G, PSE&G DANIEL A. GREENHOUSE:
MAY IT PLEASE THE COURT. THANK YOU. FIRST, I WOULD LIKE TO ADDRESS
THE ARGUMENT THAT MAYBE THERE WILL BE AN EARTHQUAKE, MAYBE THERE WILL BE A.
JUSTICE PATTERSON: WOULD YOU MIND KEEPING YOUR JOIS UP. DANIEL A. GREENHOUSE:
YES, YOUR HONOR P. SORRY I APOLOGIZE ABOUT THAT. I WOULD LIKE TO ADDRESS
FIRST THE ARGUMENT THAT THERE MIGHT BE AN EARTHQUAKE OR A KAL LAMB ADMIT.
THE ARGUE MANY PRESENTED BY N J B I A IS -- IT SHOWS A GREAT MISUNDERSTANDING OF THE
HIGHLANDS ACT AND THE DEP'S REGULATORY FRAMEWORK. THE DEP IS REQUIRED BY THE
LAW TO HAVE A PERMITTING REVIEW FOR MAJOR HIELD DEVELOPMENT IN THE PRESERVATION AREA.
YOU WOULD LIKE AT N.J.S.A. 13:20-30, 33 AND 34 FOR THESE SPECIFIC MANDATES
BY THE LEGISLATURE. THIS IS THE STARTING POINT FOR WHAT THE DEP IS SUPPOSED TO DO UNDER
THE HOOILDZ ACT. THE LEGISLATURE PROVIDED THE DEP WITH AUTHORITY TO HAVE
WAIVERS FOR SUCH PERMIT APPLICATIONS, IF NECESSARY. AND THE DEP HAS
AVAILED ITSELF THROUGH DULY PROMULGATED REGULATIONS TO TEMPORARY EMERGENCY PERMITTING
SITUATIONS FOR SITUATIONS LIKE AN EARTHQUAKE OR A KAL LAMB ADMIT TEE OR SUPER STORM OR
ANYTHING THAT WOULD THREATEN THE PUBLIC HEALTH AND SAFETY. IN FACT THE DEP
HAS ALSO AVAILED ITSELF WITH MEANINGFUL PUBLIC PARTICIPATION, I MIGHT ADD OF THE OPPORTUNITY
FOR ANY PUBLIC UTILITY TO SEEK A WAIVER FOR A PUBLIC HEALTH AND SAFETY EMERGENCY IN THE
SITUATION WHERE SOMEBODY MIGHT BE REQUIRED UNDER THE ACT TO SEEK A PERMIT, BUT DOESN'T
HAVE THE TIME TO COULD SO. SO, TO SAY THAT THE EEKS THAT WE'RE TALKING ABOUT
TODAY EXEMPTION THAT WE'RE TALKING ABOUT TODAY WAS DESIGNED TO PROVIDE THAT OR TO ENSURE
THE PUBLIC HEALTH AN SAFETY SHOWS A GREAT MISUNDERSTANDING OFFING ABOUT THE LEGISLATION
AN THE DEP'S AUTHORITY. AN THE MEANINGFUL PUBLIC PARTICIPATION, I MIGHT ADD, THAT CREATED
THE DULY PROMULGATED REGULATION, EXCUSE ME. SO, IF THERE WAS A KAL LAMB ADMIT TEE,
KAL LAMB ADMIT IT WOULDN'T BE THIS EX SEM SUBPOENA SHUN THAT WOULD SAVE US, IT WOULD BE
THE TEMPORARY EMERGENCY PERMITTING REGULATIONS AND THE WAIVERS ASSOCIATED WITH PUBLIC
HEALTH EMERGENCIES. JUSTICE PATTERSON: JUST AS A MATTER OF CURIOSITY,
MR. GREENHOUSE, WOULD THE TEMPORARY EMERGENCY PERMITTING REGULATIONS, I DON'T KNOW THE
ANSWER TO THIS, AUTHORIZE A PERMANENT UPGRADE TO A FACILITY SUCH AS WE'RE TALKING ABOUT,
THIS COMPRESSOR STATION? DO YOU SEE WHAT I AM SAYING? I CAN
SEE A TEMPORARY TYPE OF PERMITTING THAT MIGHT SAY OVER THE NEXT THREE WEEKS YOU MAY DO
X WHILE THE POWER IS OUT. DANIEL A. GREENHOUSE: RIGHT AND ALL OF THOSE
PROCEDURES ARE SET FORTH IN DETAIL AT N.J.A.C. 387-1 AND N.J.A.C.: 38-6.5 AND I STARTED
OFF THERE BECAUSE I FELT THE NEED TO IMMEDIATELY ADDRESS THAT ARGUMENT, BUT I WAS GOING
TO START OFF BY SAYING ELEPHANTS DO NOT HIDE IN MOUSE HOLES AND WE KNOW THIS FROM JUSTICE
SKALLY A'S DECISION IN 2001 THAT THE SUPREME COURT HAS HELD THAT GENERALLY CONGRESS OR
IN THIS CASE THE NEW JERSEY LEGISLATURE WOULDN'T CHANGE AN ENVIRONMENTAL SCHEME OR A PUBLIC
HEALTH AN SAFETY STATUTE IN A VAGUE OR BLANK TERM. AND THAT'S EXACTLY WHAT THE
PETITIONER'S ARE ARGUING FOR HERE, THAT AN EXEMPTION, WHICH UNDER THIS COURT'S
JURISPRUDENCE MUST BE STRICTLY CONSTRUED WOULD HIDE SUCH AN OPTION AS TO HAVE AN ELEPHANT
LIKE A PROJECT LIKE THIS. LET'S BE CLEAR HERE, THIS PROJECT IS A MASSIVE
EXPANSION OF THE PUBLIC UTILITY SERVICE. THIS IS NOT AN UPGRADE IN THE SENSE THAT J C
P&L'S SUBSTATION WAS HELD TO BE A ROUTINE UPGRADE IN THE 2013 CASE. IN THE
2013 APPELLATE DIVISION J C P AN L PROPOSED A SUBSTATION UPFWRAD I THINK THAT WAS IN THE
RANGE OF $5 MILLION THAT WAS BASED ON BPU'S FINDING THAT IT WAS NECESSARY FOR THE
RELIABILITY OF EXISTING CUSTOMERS. IN THIS CASE, FESHG'S APPROVAL OF THE $108
MILLION DOLLAR PROJECT WHICH WAS ONLY A PORTION OF THE 250 OR 260 MILLION DOLLAR TOTAL
EAST 300 PROJECT AT ISSUE HERE, PERK FOUND THAT THIS PROJECT WAS FOR NEW SERVICE, A HUNDRED
15,000. JUSTICE WAINER APTER: THE WORD UPGRADE IS DEFINED AS TO RAISE, IMPROVE
THE DPRAD OF RAISE THE QUALITY OF EXTEND THE USE OF OR TO REPLACE SOMETHING WITH A MORE
USEFUL VERSION OR ALTERNATIVE. THE WORD UPGRADE ITSELF DOES NOT SAY ANYTHING ABOUT IT
NEEDING TO BE SMALL OR IT NEEDING TO BE ONLY TO EXISTING CUSTOMERS, ETC., SO THOSE EXTRA
STATUTORY REQUIREMENTS THAT YOU ARE SEEKING TO IMPOSE ON THE STATUTE THAT IS NOT ACTUALLY
IN THE STATUTORY TEXT, CORRECT? DANIEL A. GREENHOUSE: THIS WOULD BE A
NARROW CONSTRUCTION OF THE TERM THAT'S FOUND IN THE STATUTE AND IF YOU DO READ THE 2013
APPELLATE DIVISION DECISION IT DOES APPEAR FROM MY READING OF THAT CASE TO, AGAIN, NARROW
LY READ THE PROVISION AND IT DIDN'T REACH THE QUESTION OF WHETHER UPGRADE SHOULD STAND
ALONE OR WITH ROUTINE. IT SAID EVEN IF IT IS A ROUTINE UPGRADE, IT WOULD SATISFY THAT.
JUSTICE WAINER APTER: CORRECT. IT WAS A ROUTINE UPGRADE AND THAT'S WHERE
THE COMMENT ABOUT THE EXISTING CUSTOMERS CAME IN HAD, RIGHT? GROON GROON CORRECT, YOUR HONOR.
THE REST OF THAT SENTENCE IS BECAUSE BPU FOUND THAT IT WAS NEEDED FOR THE RELIABILITY
OF EXISTING CUSTOMERS. JUSTICE PIERRE-LOUIS: MR. GREENHOUSE, IF ROUTINE
DOES MODIFY ALL THE WORDS IN THAT EXEMPTION, WHAT CONSTITUTES A ROUTINE RECONSTRUCTION?
THIS. DANIEL A. GREENHOUSE: YOUR HONOR, THIS WOULD BE SOMETHING THAT WOULD BE
ANTICIPATED FROM THE START. SO, LET'S JUST SAY YOU HAVE, YOU KNOW, A GAS
LINE. JUSTICE PIERRE-LOUIS: WHAT DOES RECONSTRUCTION MEAN? WHAT
IS THE DEFINITION OF RECONSTRUCTION. DANIEL A. GREENHOUSE: YOUR HONOR, I'M
SORRY. I DIDN'T MEAN TO SPEAK OVER YOU. IF I UNDERSTAND YOUR QUESTION CORRECTLY,
IF YOU'RE INSTALLING A PIPELINE TO TRANSPORT NATURAL GAS, YOU KNOW THAT THERE IS A LIMITED
LIFE SPAN OF THAT PIPELINE. YOU KNOW IT WILL HAVE TO BE RECONSTRUCTED AT SOME POINT IN
THE FUTURE. THAT WOULD BE ANTICIPATED THAT WOULD BE A ROUTINE RECONSTRUCTION.
JUSTICE WAINER APTER: BUT ROUTINE DOESN'T MEAN ANTICIPATED I THOUGHT IT WAS DEFINED OF
A COMMONPLACE OR REPETITIOUS CHARACTER RELATING TO OR BEING IN ACCORDANCE WITH ESTABLISHED
PROCEDURE. SO YOU'RE SAYING IF YOU KNOW YOU'RE GOING TO HAVE TO REBUILD THE
PIPELINE ONCE IN 55 YEARS THAT MEANS THAT IT'S ROUTINE? DANIEL A. GREENHOUSE:
YOUR HONOR, A NOR NARROW CONSTRUCTION OF THE STATUTE ACCORDING TO THIS COURT'S
JURISPRUDENCE IN L FEE A. JUSTICE PIERRE-LOUIS: BUT THAT DOESN'T SEEM TO
FIT WITH THE DEFINITION OF ROUTINE AS JUSTICE WAINER APTER JUST NOTED? THAT
CONSTRUCTION, THE ANTICIPATION OF HAVING TO RECONSTRUCT SOMETHING ONCE EVERY 50, 60, 70
YEARS DOES NOT COMPORT WITH THE DEFINITION OF ROUTINE. GROWN GROOEN YOUR HONOR, I THINK
THAT IT DOES WHEN YOU HAVE A NARROW AND STRICT CONSTRUCTION OF THIS EXEMPTION, WHICH
ACCORDING TO THIS COURT'S JURISPRUDENCE IN AFL FEAR AIR RESHOULD BE STRICTLY AND NARROW
LY CONSTRUED SO AS NOT TO GO AGAINST THE SPIRIT OR INTENT OF THE REST OF THE SAT TUT SO THIS IS AN EXEMPTION FROM A PUBLIC HEALTH AN SAFETY OR ENVIRONMENTAL STATUTE THAT IS
WITH A DIFFERENT TERM. CAN YOU GIVE US AN EXAMPLE OF A ROUTINE REHABILITATION
AS DISTINGUISHED FROM A NONROUTINE REHABILITATION? DANIEL A.
GREENHOUSE: YOUR HONOR, WHEN YOU -- AND I'M GOING TO ANSWER YOUR QUESTION AS BEST AS I
CAN. YOUR HONOR, WHEN YOU'RE LOOKING AT THE 17 EXEMPTIONS IN THIS PART OF THE LAW, THEY
ALL LIMIT THE -- LIMIT THE EXEMPTION TO WHAT EXISTED AT THE TIME THE STATUTE WAS ENACTED.
EVERY 17 -- EACH 17 EXEMPTIONS. FOR EXAMPLE, IF YOU HAD A MUNICIPAL LAND
USE LAW APPROVAL AT THE TIME THAT THE -- JUSTICE PATTERSON: PLEASE KEEP
YOUR VOICE UP. DANIEL A. GREENHOUSE: FOR EXAMPLE, IF YOU HAD A
MUNICIPAL LAND USE LAW APPROVAL AT THE TIME THE STATUTE WAS ENACTED, THAT PRESERVED OR
PROVIDED YOU WITH SOMEWHAT OF AN EXEMPTION AND THOSE ARE THE FIRST THREE EXEMPTIONS ARE
EXEMPTION NO. 3, FOR EXAMPLE, THE DEP, IN FACT, IN A 2008 FINAL AGENCY DECISION APPLIED
THIS COURT'S JURISPRUDENCE FROM AL FEE AIR RETO AN EXEMPTION THAT IT DENIED EXACTLY FOR
THAT PURPOSE BECAUSE SOMEBODY HAD A MUNICIPAL LAND USE LAW APPROVAL BUT DIDN'T PERFECT
IT WITH A TREATMENT WORKS APPROVAL IN TIME AND THEREFORE THE DEP REJECTED A HAD EXEMPTION
IN 2008 AND APPLIED THIS COURT'S JURISPRUDENCE FROM AL FEE AIR RETO STRICTLY CONSTRUE
THE EXEMPTION AT ESH AND THAT WOULD BE OWNS PROPERTIES. THE COURT: COULD
YOU FOCUS ON THE WORD REHABILITATION WHAT IS AN EXAMPLE OF A ROUTINE AND A NONE ROUTINE
REHABILITATION. DANIEL A. GREENHOUSE: YOUR HONOR, IF YOU'RE TAKING ALL
OF THESE EXEMPTIONS TOGETHER AN YOU UNDERSTAND THAT THEY WERE THERE TO EXEMPT ACTIVITIES
ASSOCIATED WITH THINGS THAT EXISTED UPON THE ENACTMENT OF THE STATUTE, BUT NOT TO ALLOW
MAJOR EXPANSIONS OR SIGNIFICANT EXPANSIONS BEYOND THAT THEN A ROUTINE REHABILITATION WOULD BE
WITH REGARD TO WHAT EXISTED WHEN THE STATUTE WAS ENACTED APPEND WOULD NOT ALLOW A SIGNIFICANT
EXPANSION LIKE WE HAVE HERE WITH THIS PROJECT. THE COURT: SO I WANT TO PRESS
THE POENT BECAUSE WE'RE TRYING TO UNDERSTAND WHETHER THE WORD ROUTINE AS YOU'VE ARGUED
MODIFIES EACH PART AND THE OVER AR SHALLING ANSWER YOU PROVIDED IS NOT AS HELPFUL AS
YOUR DIRECTLY RESPONDING TO YOUR OWN ARGUMENT. YOU WANT ROUTINE TO RESPOND TO EACH ONE
OF THESE THINGS, TELL US WHAT A ROUTINE REHABILITATION IS AND WHAT A NONE
REHABILITATION IS. GIVE US AN EXAMPLE, PLEASE. DANIEL A. GREENHOUSE:
YOUR HONOR, I WILL TRY MY BEST TO GIVE YOU AN EXAMPLE, BUT I WILL ALSO SAY IT'S NOT ON
THE BURDEN OF THE CHALLENGER TO DEFINE WHAT A ROUTINE REHABILITATION IS SFLFRMENTS WE'RE
TRYING TO FIGURE OUT WHAT THIS MEANS AND WHETHER YOUR ARGUMENT IS A PERSUASIVE ONE THAT'S
THE REASON I AM ASKING. WE'RE NOT PLACING THE BURDEN ON YOU. L. DANIEL A.
GREENHOUSE: AGAIN, MAYBE THIS SHOULD BE THE SUBJECT OF BLANK PROMULGATION WITH MEANINGFUL
PUBLIC PARTICIPATION BY PUBLIC UTILITIES, SISTER AGENCIES AN THE DEP, BUT IN MY ESTIMATION,
MY SOMETIMES OF WHAT A ROUTINE REHABILITATION MIGHT BE, WOULD BE IF SOMETHING THAT EXISTED
AT THE TIME OF THE ENACTMENT OF THIS STATUTE IN 2004 WAS IN NEED OF REHABILITATION, MAYBE
THAT MEANS OO BETTER METER OR TRANSFORMER ALONG AN ELECTRICAL LINE OR A DIFFERENT MAYBE
SOME KIND OF RUST PREVENTION, SOMETHING TO IMPROVE IT, SOMETHING LIKE THAT, BUT NOT THE
MAJOR EXPANSION THAT WE'RE SEEING HERE. JUSTICE WAINER APTER: YOU'RE SAYING
THE THING WAS BUILT IN 2005 THEN THAT SAME REHABILITATION WOULD NOT BE ALLOWED.
DANIEL A. GREENHOUSE: I THINK THE EXEMPTION WOULD NOT BE ABLE TO APPLY IF IT WAS AN
EXPANSION. I UNDERSTAND YOUR QUESTION. JUSTICE WAINER APTER: I UNDERSTAND
IT HAD TO EXIST AT THE TIME THE STATUTE WAS PASSED YOU GAVE AN EXAMPLE OF A BUILDING THAT
EXISTED IN 2004 AND YOU MADE SOME KIND OF CHANGE TO IT THEN I'M SAYING WHAT IF THE BUILT
WAS BUILT AFTERWARDS BUT THEN YOU NEED TO MAKE A SMALL CHANGE THAT'S NOT OKAY ANYMORE
BECAUSE IT WAS BUILT AFTER THE STATUTE WAS EVEN AKD? DANIEL A. GREENHOUSE:
WAS IT BUILT WITH A PERMIT. JUSTICE WAINER APTER: YES, BUT NOW THEY WANT
AN EXEMPTION BECAUSE THEY ARE SAYING IT IS A REHABILITATION. DANIEL A.
GREENHOUSE: I THINK THE EXEMPTION WOULD APPLY IT WOULD BE A LAWFULLY EXISTING STRUCTURE
UNDER THE ACT. JUSTICE WAINER APTER: THIS IS ALSO A LAWFULLY EXISTING STRUCTURE,
RIGHT, THE PIPELINE? GROOIN. DANIEL A. GREENHOUSE: I DON'T BELIEVE THERE
WAS ANY COMPRESSOR STATION A LETTER ALL IN THIS LOEK INDICATION. IT WAS NOT THERE AT ALL.
JUSTICE WAINER APTER: THEY WANT TO BUILD IT TO IMPROVE SERVICE WHICH IS
THE DEFINITION OF UPGRADE COMBROOEN GROOEN I'M NOT SURE UPGRADE IS A DEFINED WORD IN THE
STATUTE. JUSTICE WAINER APTER: AGREED THAT IT IS NOT DEFINED IN THE STATUTE
BUT IT IS DEFINED IN DICTIONARIES TO RAISE, TO RAISE THE GRADE OF, TO RAISE THE QUALITY
OF TO REPLACE SOMETHING FOR A MORE USEFUL VERSION OR ALTERNATIVE. DANIEL A.
GREENHOUSE: I GUESS IF IT NEEDED TO BE DEFINED THAT SHOULD PROBABLY DONE BY DEP ACCORDING
TO METRO MEDIA STANDARDS. IT SEEMS LIKE IT WOULD BE A DEFINITION THAT WOULD BE WIDELY
APPLICABLE. JUSTICE PATTERSON: REGULATIONS. HAVE DEFINED TERMS
ALL THE TIME MENT. IN FACT THE STATUTES TELL US IF IT'S NOT DEFINED IN THE
STATUTE YOU LOOK FOR COMMON USAGE I FORGET THE PHRASING BUT RIGHT AT THE BEGINNING OF THE
STATUTE AN REGULATIONS HAVE TERMS THAT ARE SOMETIMES DEFINED AND SOMETIMES NOT. IF
YOU'RE SAYING THAT THERE IS A METRO MEDIA REQUIREMENT THAT THERE BE RULE MAKING EVERY
TIME THERE IS AN UNDEFINED TERM IN A REGULATION OR STATUTE THAT'S A LOT OF DEAF NISHGSZ
THAT WOULD BE GOING ON. DANIEL A. GREENHOUSE: UNITED STATES, MAYBE I WASN'T
CLEAR. I DIDN'T SAY THAT THERE NEEDED TO BE IN ANY, EVERY SITUATION. I JUST MEANT AS
A RESPONSE TO THE QUESTIONS ABOUT THE DEAF NISHGSZ DEFINITIONS OF THE TERM AND HOW THEY
MIGHT BE APPLICABLE TO THIS CASE IT SEEMS THAT MAYBE IT MIGHT BE APPROPRIATE THAT IF THERE
IS AN INTEREST, WE HAVE THE AMICUS CURE YAY HERE THAT REPRESENTS A WIDE INDUSTRY GROUP
AND WE HAVE A LARGE PUBLIC UTILITY, AN ENTITY THAT CLAIMS TO BE A PUBLIC UTILITY HERE
AND WE HAVE VERY MANY MEMBERS OF THE GROUPS THAT I REPRESENT INTERESTED TO, IT SEEMS LIKE
MAYBE THEN IN THIS PARTICULAR CIRCUMSTANCE WITH THESE PARTICULAR WORDS, THAT SEEMS TO BE
OF SUCH GREAT CONSEQUENCE TO SO MANY PEOPLE THAT THE DEPARTMENT -- IT WOULD BEHOOVE THE
DEPARTMENT TO DEFINE THEM ACCORDING TO THE EPA. JUSTICE PATTERSON: THAT'S
VERY VERY DIFFERENT FROM THIS COURT ORDERING THE DEPARTMENT TO UNDERGO -- TO CONDUCT RULE
MAKING GROOEN COMBROOEN WE'RE NOT ASKING FOR THAT. WE'RE JUST SAYING THAT IF THE
PETITIONER WANTS TO PROVE THAT THE APPELLATE DIVISION GIN KROEKTLY CONSTRUED THE STATUTE
THEN I THINK THAT THAT WOULD BE AN APPROPRIATE REBUTTAL TO THAT ARGUMENT.
JUSTICE WAINER APTER: IF THE LEGISLATURE HAD MEANT FOR THE WORD ROUTINE TO MODIFY ALL
OF THE TERMS IN THE LIST WHY DID IT ADD THE WORD AND BETWEEN MAINTENANCE AND OPERATIONS
RATHER THAN SIMPLY EXCLUDING THE ROUTINE MAINTENANCE, OPERATIONS COMMAS,
REHABILITATION, REPAIR, OR UPGRADE. DANIEL A. GREENHOUSE: YOUR HONOR, IT
DOESN'T SEEM TO ME THAT SAYING ROUTINE MAINTENANCE AN OPERATIONS AS ONE PART OF THAT
LIST CHANGES IS MEANING OF THE ADJECTIVE ROUTINE AS IT IT APPLIES TO THE REST AND IF YOU'RE
GOING TO LOOK AT THAT ARGUMENT ABOUT MAINTENANCE AND OPERATIONS BEING CONNECTED BY AND,
YOU MIGHT ALSO LOOK AT THE OR BEFORE UPGRADE, WUT WE KNOW FROM OTHER CASES IN WHICH THE
DEP HAS ARGUED THAT USED IN A STATUTE CAN BE CONJUNCTIVE. IT CAN BE DEFINED AS AN AND/OR
A-N-D SO THE OR UPCOMBRAD COULD BE READ HERE AND SHOULD BE READ HERE IF YOU'RE STRICTLY
CONSTRUCTING THIS EX EXEMPTION SHUN AS A-N-D UPGRADE SO IF YOU LOOK AT THIS LIST OF WORDS
AND YOU READ THE OR UPGRADE AS A-N-N-D UPGRADE AS TO SAFE AIR MAXIMUM WHERE AN OWNER OR
OPERATOR ARE RESPONSIBLE OR RELIABLE FOR A DAMN, THE LEGISLATURE CHOSE TO USE THE WORD
OR WHEN THEY PUT OWNER OR OPERATOR THERE, BUT THEY ALSO MEANT IT AS A CONJUNCTIVE OWNER
AN OPERATOR, BOTH OF THOSE PARTIES ARE LIABLE UNDER THE SAFE DAMN ACT. HERE, IT SHOULD BE
READ IN THE SAME WAY, ROUTINE MAINTENANCE AND OPERATIONS, REHABILITATION, AND UPGRADE,
NOT OR AND THEN A NEW SET OF CIRCUMSTANCES, ESPECIALLY BECAUSE THERE IS NO SEMICOAL LON
THERE. THAT WOULD BE HOW YOU WOULD WRITE THE SENTENCE TO DISTINGUISH ROUTINE FROM THE
REST OF THE WORDS SFLFRMTHS SUPPOSE IT WERE AN AABBREVIATED SENTENCE SINCE WE'RE FOCUSED
ON THE GRAMMAR OF IT NOW AN IT ONLY CALLED ROUTINE MAINTENANCE AND OPERATION COMMA AN
UPGRADE, WOULD ROUTINE APPLY TO ALL THREE? GLOOEN GLOOEN I'M SORRY YOUR HONOR, CAN YOU
REPEAT THAT, PLEASE. THE COURT: I'M TRYING TO SIMPLIFY THE SENTENCE TO
TEST THE PRINCIPLE YOU JUST GAVE. JUSTICE WAINER APTER ASKED YOU ABOUT THE MEANING OF THE
WORD AND BETWEEN MAINTENANCE AND OPERATIONS SO AND YOU'VE TOLD US THAT OR BEFORE UPGRADE
CAN MEAN AND. LET'S TAKE THOSE TWO. IF THIS EXEMPTION ONLY READ
THE ROUTINE MAINTENANCE AND OPERATIONS COMMA AND UPGRADE DOT, DOT, DOT, WOULD ROUTINE
APPLY AND MODIFY ALL THREE? DANIEL A. GREENHOUSE: YES, I BELIEVE SO, YOUR
HONOR. THAT WOULD BE. CHIEF JUSTICE RABNER: AN UNUSUAL GRAMMATICAL STRUCTURE,
WOULD YOU AGREE. DANIEL A. GREENHOUSE: YOUR HONOR IF I WAS WRITING THE
LEGISLATION AND I INTENDED ROUTINE NOT TO APPLY TO UPGRADE, THEN I WOULD NOT WRITE IT THAT
WAY, I WOULD WRITE IT A DIFFERENT WAY WITH THE SEMI-COLON AND, YOUR HONOR, I RETURN --
I'M HERE TO DEFEND THE APPELLATE DIVISION DECISION AND I BELIEVE THE APPELLATE DIVISION
GOT IT EXACTLY RIGHT HERE WITH REGARD TO THIS GRAMMATICAL CONSTRUCTION. THE ANCIENT MAXIM
BEING NOSCITUR A SOCIIS REALLY MAKES SENSE IF IT IS VAGUE HOW CAN YOU READ OUT THE WORD
ROUTINE THAT'S WHAT THEY INTENDED. WHY WOULD THE LEGISLATURE HERE EXEMPT ROUTINE MAINTENANCE
AND OPERATIONS BUT NONROUTINE UPGRADES. IMAGINE WHAT COULD BE RIGHT AND THE
THOUGHT EXPERIMENT BY THE APPELLATE DIVISION IS EXACTLY RIGHT, COULD A COAL FIRED POWER
PLANT UPGRADE TO A NUCLEAR FACILITY BE CONSIDERED AN UPGRADE THAT SHOULD BE EXEMPT.
JUSTICE MICHAEL NORIEGA: SEPARATE IT A COMMON UNDERSTANDING OF THESE WORDS THAT MAINTENANCE
AND OPERATIONS ARE THINGS THAT ARE GENERALLY ROUTINE, THAT HAPPEN ON A HABITUAL BASIS
AS OPPOSED TO EVERY OTHER WORD THAT FOLLOWS A COMMA THAT ARE GENERALLY TRIGGERED BY SOME
OTHER EVENT. MAINTENANCE AN OPERATION ARE NOT TRIGGERED BY SOME OTHER EVENT OTHER THAN
THE HABITUAL USE OF THE OWNER OR WHOEVER IT IS THAT IS MANAGING IT SO ISN'T THAT
DISTINCTION. DANIEL A. GREENHOUSE: YES, YOUR HONOR. IN FACT THE POINT YOU'RE
MAKING REINFORCES THE ARGUMENT THAT ROUTINE WAS CHOSEN BY THE LEGISLATURE INTENTIONALLY
TO APPLY TO ALL OF THOSE THINGS. IT COULD BE MAINTENANCE AN OPERATION COULD BE ROUTINE
OR FREQUENTLY ARE ROUTINE, BUT WHY WOULD THEY THEN USE THE WORD ROUTINE MAINTENANCE AND
OPERATIONS IF THEY WEREN'T MEANING ROUTINE TO APPLY TO EVERYTHING THEN.
JUSTICE MICHAEL NORIEGA: HELP ME WITH SOMETHING THEN. THE CHIEF ASKED YOU
EARLIER ABOUT ROUTINE REHABILITATION AN NONROUTINE REHABILITATION. YOU
TOLD US OF AN EXAMPLE WHERE THE STRUCTURE WAS PERMITTED AN EVENTUALLY NEEDED TO BE DEE
RUSTED. WHAT IS A NONROUTINE REHABILITATION EXAMPLE THEN? WHAT IS ONE THAT
WOULDN'T QUALIFY? GROOEN COMBROOEN IN MY EXPERIENCE, AGAIN, YOU KNOW, IN MY EXPERIENCE
I HAVE SEEN THE DEPARTMENT APPLY THESE EXEMPTIONS NARROWLY, NOT BROADLY. THEY HAVE RELIED
ON THIS COURT'S GUIDANCE FROM AL FEE YAY TO NARROWLY AN VICTIMLY CON VIEW THESE
EXEMPTIONS. JUSTICE WAINER APTER: I THOUGHT THEY HAD ALWAYS INTERPRETED THE
WORD ROUTINE TO NOT APPLY TO ALL THE OTHER WORDS FWROOEN GROOEN WE HAVE NOT SEEN THAT
ANYWHERE. IT IS NOT IN THE RECORD BESIDES THE FACT THAT THEY CLAIM IT IN ARGUMENT, BUT
THERE ISN'T ANY REGULATORY PUBLICATION OR DECISION OR FINAL AGENCY DECISION WHICH CAN
BE USED AS SUPPORT FOR THAT. IT MAY BE THE CASE, YOUR HONOR, I CAN'T SPEAK
TO THAT, WHETHER THEY HAVE OR THEY HAVE NOT, BUT THERE IS NO DECISION ON WHICH TO BASE
THAT OR NO REGULATION OR RESPONSE TO COMMENTS IN A REGULATORY PROMULGATION OR A PUBLICATION
OF ANY SORT. JUSTICE WAINER APTER: I THOUGHT IT WAS IN THE J C P&L CASE
THE 433 N J SUPER AT 236 THAT THE DEP ARGUED THAT ROUTINE ONLY MODIFIES THE WORD MAINTENANCE
AN OPERATIONS AND NO OTHER WORDS IN THE LIST. DANIEL A. GREENHOUSE: THE
DEPARTMENT DID ARGUE IN THAT CASE, YES, BUT, OF COURSE, IT WAS NOT DECIDED IN THAT CASE.
JUSTICE WAINER APTER: UNDERSTOOD. I AM SAYING HASN'T THE DEPARTMENT TAKEN
THE POSITION. YOU SAID THE DEPARTMENT ALWAYS NARROWLY CON STRUS THE TERMS BECAUSE
PREVIOUSLY YOU'VE SAID THE WORD ROUTINE HAS TO APPLY TO ALL THE WORDS SO I THOUGHT YOU WERE
ANSWERING THAT THE DEPARTMENT HAS ALWAYS APPLIED THE WORD ROUTINE TO ALL THE WORDS, BUT
I HAD THOUGHT THAT THEY HADN'T, THEY HAD ARGUED THAT THE WORD ROUTINE SHOULDN'T APPLY
TO ALL THE WORDS SO THAT'S WHAT I WAS TRYING TO GET AT. DANIEL A. GREENHOUSE:
YOU'RE RIGHT YOUR HONOR, I DID NOT MEAN TO SAY THAT THEY GOT THIS ONE RIGHT. I THINK
THE APPELLATE DIVISION HELD, THEY DID NOT READ THIS ONE STRICTLY AS THEY SHOULD HAVE.
JUSTICE MICHAEL NORIEGA: CAN I TRY THIS ONE MORE TIME. CAN WE
COMPARE ROUTINE MAINTENANCE WITH ROUTINE REPAIR? IF YOU USE THE WORD ROUTINE
TO BOTH OF THOSE, THE MEANING IS ALMOST COMPLETELY LOST BECAUSE A REPAIR BY ITS
DEFINITION WILL ONLY HAPPEN WHEN SOMETHING IS DAMAGED, AS OPPOSED TO MAINTENANCE WHICH IS
ON AN ONGOING BASIS TO MAKE SURE THAT SOMETHING IS CONTINUOUSLY OPERATING THE WAY IT IS
MEANT TO OPERATE SO HOW DO YOU JUSTIFY THOSE TWO TERMS WHEN YOU ADD THE WORD ROUTINE IT
CHANGES WHAT A REPAIR IS. YOU DON'T EXPECT IT SEEMS TO ME DAMAGE ROUTINE
LY. WHEN IT HAPPENS, IT HAPPENS AN THAT'S WHEN THINGS NEED TO BE REPAIRED IS THAT FAIR
GROWN GROOEN ACTUALLY, YOUR HONOR, I RESPECTFULLY DISAGREE. WHEN YOU'RE THINKING ABOUT
YOUR CAR, FOR EXAMPLE, THERE ARE ROUTINE MAINTENANCE FUNCTIONS, BUT THERE ARE ALSO
ROUTINE REPAIRS. THERE ARE OTHER THINGS YOU COULD DO TO YOUR CAR THAT WOULD BE AN EXPANSION,
A GREAT KS SPANGS OF YOUR CAR LIKE IF YOU DROPPED A NUCLEAR EDGE GIN INTO THE HOOD INSTEAD OF
WHAT WAS ALREADY THERE. JUSTICE MICHAEL NORIEGA: WHAT IS A ROUTINE OF A
CAR DPROOEN GROOEN SNOW TIRES FOR THE WINTER OR SOMETHING YOU MIGHT ANTICIPATE.
JUSTICE MICHAEL NORIEGA: THAT'S NOT ROUTINE IF YOU LIVE IN CALIFORNIA GROWN GROOEN OR
BETTER HEADLIGHTS OR SOMETHING THAT YOU MIGHT -- A BETTER CUP HOLDER, SOMETHING THAT YOU
MIGHT ANTICIPATE FROM THE COMBINING OF THE EXISTENCE OF THAT STRUCTURE. THE
COURT: CAN WE GO BACK TO THE EXAMPLE YOU ALLUDED TO EARLIER ABOUT A NUCLEAR PLANT. OBVIOUS
LY YOU WOULD ARGUE THAT THAT IS NOT EXEMPT THAT THAT WOULD HAVE TO GO THROUGH THE PERMITTING
PROCESS. DOES THE WORD ROUTINE DO THE WORK THIS IN THAT EXAMPLE OR DOES UPGRADE
ALONE? IS GOING FROM A COMPRESSOR STATION TO A NUCLEAR POWER PLANT AN UPGRADE?
DANIEL A. GREENHOUSE: YOUR HONOR, I DO THINK THE WORD ROUTINE IS DOING
THE MAJORITY OF THE WORK THERE AND THAT'S WHY THE LEGISLATURE WROTE THE EXEMPTION IN THIS
WAY. I THINK WITHOUT THE WORD ROUTINE YOU HAVE A VERY THIN ICE TO STAND ON. IF THE
DEPARTMENT, FOR EXAMPLE, APPROVED A NUCLEAR FACILITY AS EXEMPT BECAUSE IT WAS AN UPGRADE,
THEN IT WOULD BE MAKING A MAJOR POLICY DECISION THAT IT WASN'T AUTHORIZED TO UNDER THE
HIGHLANDS ACT AN AGAIN I WOULD POINT YOU TO THE REST OF THE HIGHLANDS ACT WHICH DIRECT
AND MANDATED THAT THE DEP HAVE A PERMIT REVIEW PROGRAM FOR MAJOR HIGHLANDS DEVELOPMENT
IN THE PRESERVATION AREAS AND THAT'S THE STARTING POINT. THE COURT: SO,
TO FOCUS ON YOUR ANSWER, TO GO FROM A COMPRESSOR STATION TO A NUCLEAR POWER PLANT IS
AN UP FWRAD, NOT A ROUTINE UPDPRAD. DANIEL A. GREENHOUSE: CORRECT AN SO YOU'RE
STEPPING INTO THESE MAJOR POLICY QUESTIONS FOR THE DEP TO EXEMPT MAJOR HIGHLANDS DEVELOPMENT
IN THE PRESERVATION AREA FROM THE PERMIT REVIEW PROGRAM THAT ARE NOT ROUTINE UPGRADES
OR ANTICIPATED WHEN THE ACT WAS ENACTED. JUSTICE WAINER APTER: WHAT DOES
THE DEP DO IN ORDER TO APPROVE OF THE GOING FROM A COMPRESSOR STATION TO THE NUCLEAR POWER
PLANT WOULDN'T THAT JUST FULFILL THE REST OF EXEMPTION 11 WHICH REQUIRES THEM TO FINE
THAT THE ACTIVITY IS CONSISTENT WITH THE FOELS AND PURPOSES OF THE ACT SO THEY WOULD HAVE
TO FIND THAT THE BUILDING OF A NUCLEAR POWER PLANT IN THE HIGHLANDS IS CONSISTENT WITH
THE GOAL AND THE ACT IN PRESERVING THE HIGHLANDS AND IN WHICHEVER BEST WAY POSSIBLE, BUT
WOULDN'T THEY ALSO HAVE TO FIND THAT IT IS PART TO THE PUBLIC UTILITY RIND WAIT OR RIGHT
OF THE SYSTEM THAT ALREADY EXISTED OF THE PUBLIC UTILITY. DANIEL A. GREENHOUSE:
YES, YOUR HONOR. THE CONSISTENCY DETERMINATION, AGAIN, IS THIN. IT DOESN'T
HAVE THE SAME LEVEL OF SCRUTINY OR INFORMATION THAT IS REQUIRED UNDER A FORMAL PERMIT
REVIEW PROCESS. THE PERMIT THAT IS REQUIRED FOR MAJOR HIGHLANDS DEVELOPMENT IN THE
PRESERVATION AREA IS CALLED THE HIGHLANDS PRESERVATION AREA APPROVAL OR SHORT H P A A
AND THAT PROCESS IS MUCH MORE RIGOROUS THAN THE CONSISTENCY DETERMINATION THAT WE'RE SEEING
HERE SO THE LEGISLATURE DID NOT GRANT DEP THIS GREAT AUTHORITY TO EXEMPT PROJECTS THAT
IT DEEMED CONSISTENT FOR MAJOR HIGHLANDS DEVELOPMENT IN THE PRESERVATION AREA. IT
REQUIRED DEP TO CONDUCT A FORMAL PERMIT REVIEW FOR H P A A AND THE CONSISTENCY DETERMINATION
DOESN'T RISE TO THAT LEVEL SO THE LEGISLATIVE INTENT IS CLEAR. AGAIN IN 30, 33 AN 34
OF THIS ACT. THE PERMIT REVIEW IS THE STARTING POINT. THIS IS THE EXEMPTION. THIS IS
NOT THE AUTHORIZATION FOR MAJOR HIGHLANDS DEVELOPMENT IN THE PRESERVATION AREA.
THE COURT: OTHER QUESTIONS ANYONE? GROOEN COMBROOEN THANK YOU SFLFRMENTS THANK YOU,
COUNSEL. MR. KANE. JASON BRANDON KANE: THE COURT HAS HEARD
EXTENSIVE ARGUMENTS TLVEN AS TO THE STATUTORY INTERPRETATION OF EXEMPTION 11 # I WILL
ADD THREE POINTS TO THE COLLOQUY AS TO THE LEGAL QUESTION CONCERNING PLAIN LANGUAGE,
LEGISLATIVE INTENT AN DEFERENCE. FIRST AS A MATTER OF LOGICAL STRUCTURE OF
THE EXEMPTIONS TEXT THE WORD ROUTINE ONLY APPLIES TO MAINTENANCE AN OPERATION ACTIVITIES
THIS MATCHES THE GRAMMATICAL STRUCTURE OF THE STATUTE AS MAINTENANCE AN OPERATIONS IS
A SUBLIST WITHIN A LONGER LIST OF ACTIVITIES SIGNIFIED BY THE WORD AND BETWEEN THE WORDS.
THIS IS NOT ONLY A REASONABLE INTERPRETATION OF THE STATUTE, BUT THE ONLY
WAY THE STATUTE MAKES SENSE. AND IF THE STATUTE LISTED THE ACTIVITIES AS
JUSTICE WAINER APTER POINTED OUT, MAINTENANCE COMMA OPERATIONS, COMMA REHABILITATION COMMA
AND SO ON, THE APPELLATE DIVISION'S INTERPRETATION TO APPLY ROUTINE TO ALL THE
WORDS WOULD BE MORE CORRECT. SECOND, TO THE ACT'S EXPRESS LEGISLATIVE INTENT
OF ENVIRONMENTAL RESOURCE PROTECTION THAT FOLLOWS THE PLAIN LANGUAGE INTERPRETATION.
LEGISLATIVE INTENT DOES NOT SUPPORT APPLYING THE WORD TO ROUTINE TO UPGRADE FOR FOUR REASONS.
ONE THE LEGISLATURE INTENDED TO EMPHASIZE THE EXPRESS PURPOSE OF THE ACT
THROUGH THE SECOND PART OF THE EXEMPTION THAT THE ACTIVITY IS CONSISTENT WITH THE GOALS
AND PURPOSES OF THE HIGHLANDS ACT. THE AEP DOES THIS IN CONSULTATION WITH
THE HIGHLANDS COUNSEL TO ASSESS IMPACTS TO HIGHLANDS RESOURCE INCLUDING OPEN WATERS,
AQUIFERS, FOREST AREAS, STEEP SLOPES AN WILDLIFE HABITAT. THIS IS WHERE DEP'S ADMINISTRATIVE
RESOURCES ARE BEST FOCUSED. TWO THE APPELLATE DIVISION WRONGLY REASONED THAT
THERE SHOULD BE AN IMPLIED REASONABLE FOR EACH ACTIVITY THAT MUST FURTHER ENVIRONMENTAL
PROTECTION BUT LIMITING AN UPGRADE OR OTHER LISTED ACTIVITY TO BE ROUTINE DOES NOT
NECESSARILY FURTHER ENVIRONMENTAL PROTECTION. THERE IS NO SUPPORT THAT A ROUTINE ACTIVITY
IS ALWAYS MORE OR LESS PROTECTIVE OF ENVIRONMENTAL RESOURCES THAN A NONROUTINE ACT
AN THUS THAT JUSTIFICATION IS ARBITRARY. THREE -- JUSTICE PATTERSON:
YOU COULD ARGUE THAT PERHAPS THE CONVERSE IS TRUE, CORRECT? IF SOMETHING
IS HAPPENING ROUTINELY IT'S HAPPENING MORE OFTEN AND MIGHT HAVE A GREATER ENVIRONMENTAL
IMPACT? JASON BRANDON KANE: CORRECT. JUSTICE PATTERSON: I
AM SORRY I INTERRUPTED YOUR PRESENTATION. JASON BRANDON KANE: THREE, THE
APPELLATE DIVISION DID NOT CONSIDER THAT THE LEGISLATURE CREATE AN EXEMPTION FOR PUBLIC
UTILITIES TO ALLOW THEM FLEXIBILITY TO KEEP THEIR SYSTEM AT INDUSTRY AN REGULATORY STANDARDS
WHEN ROUTINE MAINTENANCE AND OPERATIONS IS NOT SUFFICIENT TO SUSTAIN THE SYSTEM THE
LEGISLATURE EXPLICITLY LISTED RESTORE RAT ACTIVE ACTIVITIES AS NONROUTINE MAINTENANCE AN
OPERATIONS TO ACCOUNT FOR INTERVENING SITUATIONS. L WE WOULD NOT EXPECT RESTORE RAT ACTIVE
ACTIVITY LIKE A RECONSTRUCTION TO BE ROUTINE OR FOR A PUBLIC UTILITY AN THUS THE WORD
ROUTINE CANNOT APPLY FOR THE WHOLE LIST. FOUR, WE WOULD NOT EXPECT THE LEGISLATURE
TO ASSIGN SUCH A TASK TO ASSESS ROUTINENESS OF A PUBLIC UTILITY TO ITS ENVIRONMENTAL AGENCY
WHILE OTHER AGENCIES ALREADY PERFORM THAT FUNCTION. THOSE FOUR POIPTS AS TO
LEGISLATIVE INTENT DO NOT SUPPORT THE APPELLATE DIVISION'S INTERPRETATION.
JUSTICE WAINER APTER: YOUR POINT ON THE LAST ONE, I'M SORRY IS THAT BPU WOULD BE MORE
APPROPRIATE TO DETERMINE WHETHER SOMETHING IS ROUTINE FOR A PUBLIC UTILITY THAN DEP,
CORRECT? SH. JASON BRANDON KANE: CORRECT, IN THE STATE CONTEXT.
AND LASTLY, THIS IS THE CLASSIC CASE FOR THE COURT TO PROVIDE DEFERENCE TO THE AGENCY.
IF THE COURT BELIEVES THAT THE STATUTORY INTERPRETATION QUESTION IS CLOSE, THE
APPELLATE DIVISION ALREADY FOUND THAT DEP'S PLAIN LANGUAGE INTERPRETATION IS PLAUSIBLE
AND SHOULD HAVE DEFERRED TO DEP AS THE LEGISLATURE CHARGED DEP WITH ADMINISTRATION
OF THE ACT, INCLUDING PROVIDING IT WITH PER 'ADMITTING AUTHORITY TO REGULATE DEVELOPMENT
IN THE HIGHLANDS REGION. THIS IS THE TYPE OF ISSUE THAT THE COURT HAS DEFERRED
TO AGENCIES BEFORE IN THE PAST AN ALTHOUGH WE FEEL THAT DEP'S INTERPRETATION IS THE CORRECT
INTERPRETATION, IT ALSO FALLS WITHIN SUBSTANTIAL DEFERENCE TO AGENCIES AN THE COURT SHOULD
DEFER TO DEP'S INTERPRETATION SFLFRMENTS QUESTIONS ANYONE? COUNSEL, IS
THERE ANYTHING YOU WOULD LIKE TO ADD IN ADDITION. JASON BRANDON KANE: NO, YOUR
HONOR. THANK YOU SFLFRMTHS THANK YOU, MS. ROY, REBUTTAL? HAD.
CHRISTINE A. ROY: I JUST WANTED TO ADDRESS A FEW POINTS THAT MR. GREENHOUSE MADE. FIRST OF
ALL WE DPRAE THAT THE EXEMPTION SHOULD BE NARROWLY CONSTRUED BUT IT MUST BE REASONABLE
AND THAT'S WHERE WE THINK THE APPELLATE DIVISION GOT IT WRONG. IT'S NOT REASONABLE TO
NARROWLY CONSTRUE IT SO MUCH THAT ONLY ROUTINE ACTIVITIES ARE COVERED BY THE EXEMPTION
BECAUSE CERTAINLY AS HE POINTS OUT AND WHAT WE POINTED OUT IN OUR PAPERS IS THERE IS REALLY
NO SUCH THING AS A ROUTINE PRESERVATION OR ROUTINE RECONSTRUCTION. THESE ACTIVITIES ARE
ONLY DONE AS NEEDED TO PROVIDE RELIABLE SERVICE SO, YOU KNOW, AND I THINK MR. GREENHOUSE
FAILURE TO PROVIDE AN EXAMPLE THAT REALLY IS KIND OF A REAL EXAMPLE IN THE UTILITY WORLD
KIND OF PROVES THAT POINT. ALSO, I THINK THERE IS ANOTHER FALSE THINKING IN
THE APPELLATE DIVISION'S DECISION AND THAT IS THAT ROUTINE ACTIVITIES ARE NOT NECESSARILY
-- YOU KNOW THEY HAVE A SMALLER FOOTPRINT THEY HAVE LESS ENVIRONMENTAL IMPACT AND I THINK
JUSTICE PATTERSON YOU WERE GOING TO THIS. THAT IS ABSOLUTELY NOT TRUE. I CAN GIVE YOU
AN EXAMPLE WITH TENNESSEE GAS WHERE THEY HAD TO DO ROUTINE MAINTENANCE AND OPERATION ACTIVITY
WHICH WAS TO REPLACE A SEGMENT OF PIPELINE THAT REQUIRED THICKER WALL WAU PIPES BECAUSE
OF POPULATION DENSITY. PEOPLE WERE MOVING AND THERE WAS DEVELOPMENT UNDER THE PIPELINE
WHICH UN FEDERAL REGULATION APPLIES A THICKER LINED PIPE. AGAIN IT'S ALL ABOUT SAFETY
IN THIS INSTANCE BUT THIS EXAMPLE WAS THEY WEREN'T INCREASING CAPACITY OR UPGRADING BUT
REPLACING THAT SEGMENT OF PIPE WITH THICKER WALL FOR SAFETY BUT THEY TOOK DOWN A LOT OF
TREES BECAUSE IT WAS NECESSARY TO DO THIS WORK. SO OUT OF ROUTINE MAINTENANCE CAME GREAT
ER ENVIRONMENTAL IMPACT THAN THIS PROJECT WHICH WAS AN UPGRADE TO PROVIDE SERVICE SO I
JUST WANTED TO KIND OF GIVE YOU THAT EXAMPLE BECAUSE I THINK THERE IS SOME FAULTY THINKING
THAT IN EVERY CASE ROUTINE MAINTENANCE AND OPERATIONS IS A SMALLER FOOTPRINT SOMEHOW
WITH LESSER, INHERENTLY LESSER ENVIRONMENTAL IMPACT IS NOT NECESSARILY TRUE. I WANTED
TO MENTION THAT. ALSO THE OTHER THING THAT MR. GREENHOUSE SAID THAT IS IMPORTANT
ABOUT THIS I THINK THOUGHT THAT IS THERE IS A LIMITATION ON THE LIFE SPAN OF A PIPELINE
IS NOT TRUE EITHER. THAT IS IMPORTANT BECAUSE ALL THE ROUTINE OPERATION OF
MAINTENANCE ACTIVITIES ALL THE NONROUTINE ACT TITS THAT'S WHY THE LIFE SPAN OF A PIPELINE
IS INDEFINITE BECAUSE THEY ARE CONSTANTLY DOING EVERYTHING THAT IS REQUIRED BY THEIR
REGULATORS TO KEEP A SAFE, YOU KNOW, PIPELINE TO PROVIDE SERVICE SO THAT IS THE OTHER
PIECE OF IT. TLSZ ALL THESE OTHER -- YOU KNOW WHAT IF A REGULATOR REQUIRES NONROUTINE
WORK BECAUSE THEY FOUND THAT THERE IS NEW TECHNOLOGY OR SOMETHING THAT COULD HELP WITH
SAFETY LET'S SAY AND RELIABILITY ARE WE GOING TO SAY IT WOULDN'T BE ALLOWED UNDER THE
EXEMPTION BECAUSE IT IS NOT ROUTINE? IT DOESN'T MAKE SENSE. IT IS AN
UNREASONABLE INTERPRETATION GIVEN ALL THAT PUBLIC UTILITIES HAVE TO DO TO KEEP SAFE, RELIABLE,
EFFICIENT UTILITY SERVICE. I THINK THAT'S REALLY IMPORTANT. THE BOTTOM LINE
IS I THINK THAT MR. GREENHOUSE'S EXAMPLE THAT NARROWLY CONSTRUING SOMEHOW, YOU KNOW, THE
NUCLEAR EXAMPLE, I THINK WHERE YOU WERE GOING -- JUSTICE PATTERSON:
CHRISTINE A. ROY: THE NUCLEAR PLANT WOULD NOT BE AN UPGRADE IN THAT SCENARIO IT'S NOT
ROUTINE. IT HAS TO BE AN UPGRADE TO THE EXISTING SYSTEM WHAT IS THE SYSTEM IT'S A PIPELINE
SYSTEM IT'S NOT A NUCLEAR SYSTEM THAT'S NOT SOMETHING THAT TENNESSEE OR ANOTHER UTILITY
COULD DO. JUSTICE PATTERSON: WOULDN'T THERE BE A MASSIVE REGULATORY
PROCESS FOR A NUCLEAR PLANT TO BE IN THE HIGHLANDS OR ANYWHERE. CHRISTINE A. ROY:
YES, YOUR HONOR. I THINK THAT'S THE POINT THAT THAT IS KIND OF AN ABSURD EXAMPLE AN SOMEHOW
THAT WAS WHERE THE COURT WENT TO GET THIS OTHER LIMITING TASH DASH THEY FELT THEY NEEDED
ANOTHER GUARDRAIL, IF YOU WILL TO PROTECT THE HIGHLANDS RESOURCES BUT THOSE GUARDRAILS,
THOSE LIMITING FACTORS ARE REALLY IN THERE. I REALLY DID NOTHING FURTHER IN TERMS OF
FURTHERING THE PUBLIC POLICY HERE SO -- AN THEN FINALLY I JUST WANTED TO MENTION THAT
UTILITIES, YOU KNOW, IN THE HIGHLANDS PRESERVATION AREA, THEY DO SERVE AREAS WITHIN
THE HIGHLANDS REGION AN OUTSIDE THE REGION. THIS IS WHY IT IS SO IMPORTANT. THEY ARE
NOT JUST SERVICING THE HIGHLANDS PRESERVATION AREA, IN THIS CASE IT IS SERVING CON ED
A NEW YORK PROVIDER BUT CERTAINLY SOME OF THE SYSTEMS WHICH ARE ALL LINEAR, TRANSITION
LINES, PIPELINES AN THE LIKE, THEY ARE SERVICING OTHER AREAS IN NEW JERSEY AND I THINK
THE LEGISLATURE UNDERSTOOD THAT BY GRANTING -- YOU KNOW, BY PROMISE MULL FATING OR, YOU
KNOW, APPROVING THIS EXEMPTION 11 AND IT SHOULD BE INTERPRETED NARROWLY BUT BROADLY IN
THIS SENSE. SYSTEM IS PRETTY BROAD. IT'S NOT LIMITED TO JUST RIGHTS WIRES OR LINES IT IS
SAYING IF YOU NEED SYSTEM JAUP GRADES ROUTINE OR OTHERWISE YOU WILL BE ABLE TO GET THIS
EXEMPTION AS LONG AS IT'S CONNECTED TO YOUR LINE SYSTEM OR YOUR RIGHTS OF WAY AND THE
CONSISTENCY WITH THE PURPOSES OF THE HIGHLANDS ACT IS REALLY THE FINAL GUARDRAIL SO I
THINK THAT, AGAIN, I THINK THE APPELLATE DECISION GOT IT WRONG I THINK DEP'S LONG STANDING
INTERPRETATION ON THAT POINT IT IS A LONG STANDING INTERPRETATION. TENNESSEE THIS IS
THEIR THIRD EXEMPTION WHERE THE DEPARTMENT HAS INTERPRETED THE SAME WAY IT DID HERE AND
THEY HAVE INTERPRETED ROUTINE ONLY TO APPLY TO ROUTINE MAINTENANCE AND OPERATIONS IN THE
J C P AN L CASE THOSE ARE JUST FOUR EXAMPLES OFF THE TOP OF MY HEAD THAT I CAN GIVE YOU
TO SAY YES IT'S LONG STANDING AND IT MAKES SENSE AND IT IS THE RIGHT INTERPRETATION AN
ON BEHALF OF TENNESSEE GAS I WOULD LIKE TO THANK THE COURT FOR GRANTING CERTIFICATION
AN HEARING THIS VERY IMPORTANT MATTER. THE COURT: THANK YOU ALL COUNSEL
FOR THE VERY FINE ARGUMENTS.