In the Matter of the Implementation of L. 2012, C. 24, the Solar Act of 2012 ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-2871-22
A-3945-22
A-3947-22
IN THE MATTER OF THE
IMPLEMENTATION OF L.
2012, C. 24, THE SOLAR
ACT OF 2012
IN THE MATTER OF A NEW
JERSEY SOLAR TRANSITION
PURSUANT TO P.L. 2018, C.17
IN THE MATTER OF A NEW
JERSEY SOLAR TRANSITION
PURSUANT TO P.L. 2018, C. 17 -
ORDER GRANTING AN UP TO
12-MONTH EXTENSION FOR
PROJECTS SEEKING AN INCENTIVE
PURSUANT TO SUBSECTION (T)
IN THE SOLAR TRANSITION
INCENTIVE PROGRAM – MOTION
FOR RECONSIDERATION.
_____________________________________
IN THE MATTER OF THE
IMPLEMENTATION OF L. 2012, C.
24, THE SOLAR ACT OF 2012
IN THE MATTER OF THE SOLAR
TRANSITION PURSUANT TO P.L.
2018, C. 17 – APPLICATION FOR
CERTIFICATION OF SOLAR FACILITY
AS ELIGIBLE FOR TRECS PURSUANT TO
SUBSECTION (T) OF THE SOLAR ACT
OF 2012
WINSLOW LF SOLAR FARM, LLC - SOLAR
ACT SUBSECTION (T) - BLOCK 8802,
LOT 1, BLOCK 9101, LOT 2, BLOCK
9102, LOT 1.
_____________________________________
IN THE MATTER OF THE
IMPLEMENTATION OF L. 2012, C. 24,
THE SOLAR ACT OF 2012
IN THE MATTER OF A NEW
JERSEY SOLAR TRANSITION
PURSUANT TO P.L. 2018, C. 17
APPLICATION FOR CERTIFICATION
OF SOLAR FACILITY AS ELIGIBLE
FOR TRECS PURSUANT TO
SUBSECTION (T) OF THE SOLAR
ACT OF 2012
PASADENA PEMBERTON SOLAR
FARM, LLC-APPLICATION FOR
SOLAR ACT SUBSECTION (T),
BLOCK 906, LOT 1.01.
_____________________________________
Submitted October 22, 2024 – Decided November 4, 2024
Before Judges Susswein, Perez Friscia and Bergman.
On appeal from the New Jersey Board of Public
Utilities, Docket Nos. EO12090832V, QO19010068
and QO22090551 in Docket No. A-2871-22; Docket
A-2871-22
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Nos. EO12090832V, QO19010068, and QO21081079
in A-3945-22; Docket Nos. EO12090832V,
QO19010068, and QO21050822 in A-3947-22.
Genova Burns, LLC, attorneys for appellant CEP
Renewable, LLC (Keneth J. Sheehan, of counsel and on
the briefs).
Brian O. Lipman, Director, attorney for respondent
New Jersey Division of Rate Counsel (Sarah H.
Steindel, Assistant Deputy Rate Counsel, on the briefs).
Matthew J. Platkin, Attorney General, attorney for
respondent New Jersey Board of Public Utilities
(Sookie Bae, Assistant Attorney General, of counsel;
Brandon C. Simmons, Deputy Attorney General, on the
brief in A-2871-22; Steven A. Chaplar, Deputy
Attorney General, on the briefs in A-3945-22 and A-
3947-22).
PER CURIAM
In these three back-to-back appeals we have consolidated for the purposes
of issuing a single opinion, CEP Renewables, LLC (CEP) challenges a series of
orders entered by the New Jersey Board of Public Utilities (BPU). The New
Jersey Division of Rate Counsel urges we reject CEP's arguments and affirm the
BPU's orders. Having reviewed the record, parties' arguments, and governing
legal principles, we affirm.
Under A-2871-22, CEP appeals from the April 26, 2023 BPU order
denying CEP's motion for reconsideration of the BPU's August 17, 2022 order,
A-2871-22
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which permitted only two six-month extensions for solar projects filed pursuant
to N.J.S.A. 48:3-87(t) (subsection (t)). The August order permitted the BPU to
grant extensions to solar subsection (t) project registrants that had a conditional
certification or had timely applied for conditional certification that were pending
review under the Transition Incentive (TI) program. CEP contends the BPU's
orders are arbitrary, capricious, and unreasonable because they did not provide
greater extensions to solar project developers with subsection (t) projects under
the TI program pending completion of the PJM Interconnection, LLC (PJM)
process.
Under A-3945-22, CEP appeals from the July 12, 2023 BPU order denying
CEP's subsection (t) application for a conditional certification for a solar facility
at the Winslow site because it was not a properly closed sanitary landfill facility.
Under A-3947-22, CEP appeals from the July 26, 2023 BPU order denying
CEP's subsection (t) application for a conditional certification for a solar facility
at the Pemberton site because it was not a properly closed sanitary landfill
facility.
A-2871-22
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I.
To give context to the issues presented in these appeals, we summarize
the facts and procedural history in view of the governing statutory and
regulatory framework.
The Clean Energy Act (CEA), P.L. 2018 c. 17, was enacted on May 23,
2018. N.J.S.A. 48:3-51 to -87. The CEA charged the BPU with closing the
Solar Renewable Energy Certificate Registration Program (SRP), which was the
solar incentive program at the time, launching an interim incentive program, and
transitioning to the Successor Solar Incentive (SuSI) program. See N.J.S.A.
48:3-87(d)(3). On April 6, 2020, the BPU ordered the closure of the SRP
effective April 30. In re Closure of the SREC Registration Program Pursuant to
P.L. 2018, c. 17, No. QO18070698, 2020 N.J. PUC LEXIS 259, at *11 (Bd. of
Pub. Utils. Apr. 6, 2020). N.J.S.A. 48:3-87(t)(1) required the BPU to "establish
a financial incentive . . . designed to supplement the [Solar renewable energy
certificates (SREC)] 1 generated by the facility in order to cover the additional
1
A "'[s]olar renewable energy certificate' or 'SREC' means a certificate issued
by the [BPU] or its designee, representing one megawatt hour (MWh) of solar
energy that is generated by a facility connected to the distribution system in this
State and has value based upon, and driven by, the energy market." N.J.S.A.
48:3-51.
A-2871-22
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cost of constructing and operating a solar electric power generation facility on
a brownfield, on an area of historic fill[,] or on a properly closed sanitary landfill
facility."
On December 6, 2019, the BPU launched the TI program. See N.J.A.C.
14:8-10.1 to - 10.7; see also 52 N.J.R. 1048(a) (May 18, 2020). The BPU's TI
program was "designed to provide a bridge between the [SRP] and . . . [the SuSI
program] under development." N.J.A.C. 14:8-10.1. Under the TI program,
N.J.A.C. 14:8-10.4(f) permitted developers to "submit a complete registration
package to the [BPU] prior to the [BPU]'s announcement of the opening of [the
SuSI program]" to receive fixed solar energy incentives.2
The TI program provided Transition Renewable Energy Certificates
(TRECs) for each MWh of electricity produced. N.J.A.C. 14:8-10.6(b). TRECs
were permitted to be sold at values fixed by the BPU. N.J.A.C. 14:8-10.5. The
BPU maintained oversight of the temporary TI program as an interim bridge
program until the SuSI program opened to applicants. Each solar program
2
Developers filing a subsection (t) application under the TI program were
required to follow "N.J.S.A. 48:3-87(t), the Solar Act of 2012, and the B[PU]'s
[i]mplementing [o]rders." N.J.A.C. 14:8-10.4(i). Additionally, "[d]evelopers
[had to] apply to the B[PU] for conditional certification of projects seeking
eligibility for [Transition Renewable Energy Certificates] using the same
process developed for SREC eligibility." Ibid.
A-2871-22
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provided developers different incentive subsidy schemes, which were funded by
retail electricity ratepaying customers, aimed at promoting solar development in
New Jersey. The SuSI program was launched on August 28, 2021. N.J.A.C.
14:8-11-1 to -12.8; In re a New Jersey Solar Transition Pursuant to P.L. 2018,
c. 17, No. QO19010068, 2021 N.J. PUC LEXIS 299 (Bd. of Pub. Utils. July 28,
2021). The BPU determined the SuSI program incentives, N.J.A.C. 14:8-11.1
to -11.10, based on a competitive solicitation process and launched the
Competitive Solar Incentive (CSI) program, which offered incentives to grid
supply solar generation facilities. See N.J.A.C. 14:8-11.10; N.J.S.A. 48:3-117.
Pursuant to subsection (t), 3 solar developers could apply to develop and
operate "solar electric power generation facilit[ies] . . . on a brownfield, on an
area of historic fill[,] or on a properly closed sanitary landfill facility" and
receive TRECs. N.J.S.A. 48:3-87(t)(1). In New Jersey, solar energy policies
have long "promot[ed] the installation of solar projects on contaminated
industrial and commercial sites that would likely otherwise remain
unproductive, while 'discouraging large-scale solar projects on farmland and
3
Subsection (t) "means the provision of the Solar Act of 2012 that provides the
criteria for SREC eligibility for grid supply solar installations located on
properly closed sanitary landfills, brownfields, or areas of historic fill."
N.J.A.C. 14:8-10.2.
A-2871-22
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open space.'" In re Implementation of L. 2012, C. 24, N.J.S.A. 48:3-87(t), 443
N.J. Super. 73, 75 (App. Div. 2015).
A contaminated site or landfill is defined to mean "(1) any currently
contaminated portion of a property on which industrial or commercial operations
were conducted and a discharge occurred . . . or (2) a properly closed sanitary
landfill facility and its associated disturbed areas." N.J.S.A. 48:3-51. A
"[p]roperly closed sanitary landfill facility" is "a sanitary landfill facility, or a
portion of a sanitary landfill facility, for which performance is complete with
respect to all activities associated with the design, installation, purchase, or
construction of all measures, structures, or equipment required by the
Department of Environmental Protection (DEP)." Ibid.Subsection (t) projects are grid supply solar projects. N.J.A.C. 14:8-10.2.
Grid supply projects are required to go through an application process with a
third-party reviewer, PJM. See N.J.A.C. 14:8-10.4(h)(7). PJM is an
independent regional systems operator that manages a high-voltage electric
transmission grid and administers the regional transmission network, which
services New Jersey and other states. PJM, Fed. Energy Regul. Comm'n,
https://www.ferc.gov/industries-data/electric/electric-power-markets/pjm (last
updated Sept. 19, 2024). The TI program "shall be comprised of TRECs that
A-2871-22
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are created by [PJM Environmental Information Services] 4 . . . for each
megawatt-hour generated and metered by eligible solar projects." N.J.A.C.
14:8-10.3. Subsection (t) projects are required to finish the PJM interconnection
process prior to receiving BPU's permission to operate (PTO). N.J.A.C. 14:8 -
10.4(j), -2.4(b)(7)(iii).
PJM experienced a significant increase in developers' applications seeking
to proceed through the interconnection process. PJM, Interconnection Process
Reform Problem Statement 1 (Apr. 8, 2021) [hereinafter PJM Problem
Statement]; see also Proposed Tariff Revisions for Interconnection Process
Reform at 30 fig. 9, PJM Interconnection, L.L.C., No. ER22-2110-000 (FERC
June 14, 2022). In 2022, PJM filed proposed reforms to its process with the
Secretary of the Federal Energy Regulatory Commission (FERC) seeking to
address its significant application backlog and "timely process New Service
Requests." Id. at 1. PJM advised, "The volume of New Service Requests has
more than tripled over the past three years causing the number of queue projects"
to increase and resulting in delays for new customers "proceeding to a final
4
We note PJM Environmental Information Services is "the unregulated affiliate
of PJM Interconnection LLC, that operates the Generation Attribute Tracking
System." N.J.A.C. 14:8-11.2.
A-2871-22
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agreement and beginning the implementation phase of their projects." PJM
Problem Statement at 1.
The BPU issued TI program registrants seeking certification for "the
TREC eligibility requirements" a: full certification, conditional certification, or
denial of certification. See N.J.A.C. 14:8-2.4(r), -10.4(j). After the BPU issued
a conditional certification to a solar developer, pursuant to N.J.A.C. 14:8 -
10.4(f)(4)(ii)(3), the registrant's certification expired for "[s]ubsection (t)
projects (that is, projects granted conditional certification pursuant to N.J.S.A.
48:3-87(t)) [at] the two-year anniversary of the registrant's [BPU] [o]rder
granting conditional certification." The registrant's solar facility was required
to "commence commercial operations and submit a post-construction
certification package prior to the expiration of the conditional registration."
N.J.A.C. 14:8-10.4(f)(4)(iii). The TI program closed on August 27, 2021, and
the SuSI program opened on August 28. In re a New Jersey Solar Transition,
2021 N.J. PUC LEXIS 299, at *12; In re a New Jersey Solar Successor Incentive
Program Pursuant to P.L. 2018, c. 17, No. QO20020184, 2021 N.J. PUC LEXIS
300, at *123, *131 (Bd. of Pub. Utils. July 28, 2021).
A-2871-22
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A. CEP'S Challenge to the BPU's Subsection (t) Project Extensions Under
the TI Program
CEP is a developer of solar facilities in New Jersey. CEP had multiple
subsection (t) solar projects under the TI program pending before the BPU. CEP
had applications delayed in the PJM interconnection process.
On August 17, 2022, the BPU ordered that TI program registrants were
"permit[ted] up to two six-month extensions of time [for] [s]ubsection (t)
projects . . . in the TI [p]rogram, for a total of up to [twelve] months." 5 The
Administrative Code authorized the BPU to relax a registrant's time to complete
construction and commence commercial operation under the TI program by
5
We note on September 12, 2023, the Legislature enacted N.J.S.A. 48:3-121(a),
which provided developers of a qualified solar electric power generation facility
"two years beyond what otherwise would be the deadline for the qualified solar
electric power generation facility to achieve commercial operation." The statute
further states, "[t]he . . . extension shall protect the qualified solar electric power
generation facility from forfeiting . . . eligibility to receive financial incentives
provided by the solar incentive program for which the application was made."
N.J.S.A. 48:3-121(a)(3). We have considered CEP's appeal under A-2871-22
on the merits as CEP contends the BPU's extension is arbitrary, capricious, and
unreasonable for failing to afford solar developers sufficient time commensurate
with PJM's backlog delays. Furthermore, this appeal addresses a matter of
public concern.
A-2871-22
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providing extensions to registrants. 6 The BPU balanced the "increase[ed] delays
in the PJM interconnection process" and that the BPU's "rules provid[ed]
[s]ubsection (t) projects two . . . years after they receive certification from the
[BPU] to reach [PTO] before their registration expire[d]." The BPU observed
"a single blanket extension granted via [BPU] [o]rder would be more equitably
levied and less administratively burdensome than consideration of extension
requests on a case-by-case basis." Further, it concluded: developers "have been
aware of [PJM] delays"; the "interim nature of the TI [p]rogram ha[d] been
consistently communicated"; and the regulation's two-year project completion
6
The BPU is permitted to waive its rules:
(b) In special cases and for good cause shown, the
[BPU] may, unless otherwise specifically stated, relax
or permit deviations . . . .
1. The [BPU] shall, in accordance with the
general purposes and intent of its rules,
waive section(s) of its rules if full
compliance with the rule(s) would
adversely affect the ratepayers of a
utility or other regulated entity, the
ability of said utility or other regulated
entity to continue to render safe,
adequate and proper service, or the
interests of the general public[.]
[N.J.A.C. 14:1-1.2(b).]
A-2871-22
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requirement and absence of available extensions was "embodied in the TI
[r]ules." The BPU "balance[d] the TI [p]rogram[']s complementary goals ,"
concluding the "general purpose [of the TI program] [wa]s to provide a smooth
transition to the [SuSI] [p]rogram and support New Jersey's thriving solar
market . . . at the lowest possible cost," and a limited "extension to [s]ubsection
(t) projects" was warranted.
On August 30, 2022, CEP moved before the BPU pursuant to N.J.A.C.
14:2-8.6(a) for reconsideration of the August 17 order. On April 26, 2023, the
BPU denied CEP's motion for reconsideration and explained: "while the [BPU]
anticipated that 'many' [s]ubsection (t) projects would benefit, it did not intend
to guarantee every . . . applicant all the time needed," and "[i]t specifically
rejected . . . open-ended extension." The BPU granted extensions for projects
"'ready to move forward and deliver clean energy to New Jersey customers
quickly,'" and the BPU was not "responsible for guaranteeing these projects a
specific incentive through a particular program." Regarding CEP's arguments
that the BPU misstated the PJM timeline for registrants to receive a final
agreement on TI program projects filed between October 2020 and September
2021, the BPU acknowledged its error, recognizing the correct estimated
timeline was November 2026. It found the timeline error was of no significance
A-2871-22
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and "had no material effect" because the BPU's order granting up to a twelve -
month extension was "aimed only at those projects" near completion, and "its
analysis and . . . ruling would have been the same." The BPU disagreed with
CEP's position that the BPU should "take all the risk in the PJM queue process,
shift it off the developers, and place it squarely [with] ratepayers."
Further, the BPU clarified that its granting of extensions to registrants due
to PJM's delays was not intended as a guarantee of "an indefinite commitment
to the TI [p]rogram's [s]ubsection (t) incentive levels" because it "would not be
in the interest of ratepayers." The BPU addressed CEP's contention that it
confused the distinction between the PJM's "completion of the interconnection
process" and "final agreement," explaining there was no term confusion because
the PJM process was clearly required to obtain a final agreement. Regarding
CEP's knowledge of delays, the BPU cited the PJM's filed FERC letter
acknowledging "the significant growth in the number of generation facilities
seeking to interconnect to the PJM grid . . . and the associated increasing
backlog." With the BPU's one-year extension, the deadline to begin operations
for subsection (t) projects under the TI program became three years. See In re
a New Jersey Solar Transition Pursuant to P.L. 2018, C.17, No. QO19010068,
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2022 N.J. PUC LEXIS 246, at *22 (Bd. of Pub. Utils. Aug. 17, 2022); N.J.A.C.
14:8-10.4(f)(4)(ii)(3).
On appeal, under A-2871-22, CEP argues the BPU's orders are arbitrary,
capricious, and unreasonable warranting reversal because the BPU: made a
factual mistake in the estimated completion timeline for solar subsection (t)
projects filed under the TI program for interconnection with PJM before
September 2021; failed to provide an actual timeframe "use[ful] for most"
project developers; granted extensions for "registrants within the Community
Solar Energy Pilot Program (CSEP)"; and placed the risk of solar f acility
development due to the PJM delays on the developer.
B. CEP's Conditional Certification Applications
On May 20, 2021, the BPU received CEP's application pursuant to the
Solar Act for a conditional certification for the Pasadena Pemberton Solar Farm
(Pemberton site) as a subsection (t) solar facility project. CEP requested a
conditional certification for eligibility to generate TRECs on its proposed solar
electric generation facility at the Pemberton site pursuant to the TI program. It
maintained the Pemberton site "has been treated as closed by NJDEP since 1984,
and only a [m]inor [d]isruption [p]ermit [a]pplication has been opened in the
last almost [forty] years . . . [and] should fall squarely within the category for
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the issuance of a conditional approval." On November 9, the BPU transmitted
CEP's application to the DEP to determine whether the site was a properly closed
sanitary landfill facility. See N.J.S.A. 48:3-51, -87(t) ("[T]he [BPU] shall . . .
provide [TRECs] to owners of solar . . . projects certified by the [BPU], in
consultation with the DEP, as being located on a . . . properly closed sanitary
landfill facility.").
In May 2023, the DEP issued an advisory memorandum addressing "the
land use classification and remediation status of the proposed [Pemberton] site."
The DEP concluded the site was not a properly closed sanitary landfill because
in 2022 it had granted Pemberton Township a minor disruption permit to
perform "a ground penetrating radar . . . survey, [a] test pit and boring
excavation, . . . groundwater well redevelopment and sampling, and [an]
install[ation] of probes to evaluate landfill gases," which had not been
completed. The DEP's records indicated no "final grading and placement of a
final cover has ever occurred." Further, at the time of DEP's review, it had "not
received a [l]andfill [c]losure and [p]ost-[c]losure [p]lan." BPU staff
recommended CEP's subsection (t) conditional certification application be
denied after it considered the DEP's site determinations and CEP's application,
"which acknowledge[d] that the [Pemberton] landfill [was] not properly closed."
A-2871-22
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On July 26, 2023, the BPU issued an order denying CEP's application after it
found the Pemberton site "d[id] not meet the Solar Act's definition of a 'properly
closed sanitary landfill.'"
On August 25, 2021, the BPU received CEP's application for a conditional
certification for its affiliate Winslow Landfill Solar Farm, LLC (Winslow site)
as a subsection (t) solar facility project. CEP amended its application on
September 23. CEP applied for a conditional certification for eligibility to
generate TRECs on a proposed solar electric generation facility at the Winslow
site pursuant to the TI program. Similar to the argument for the Pemberton site,
CEP maintained the Winslow site "has been closed since 1991 . . . [and]
finalization of the [l]andfill [c]losure permit should fall squarely in the category
for . . . conditional approval." In the Winslow site application CEP wrote "[t]he
landfill is not closed according to []DEP's and Pineland's current regulations."
The BPU transmitted CEP's application to the DEP for a review and
determination on whether the site was a properly closed sanitary landfill. See
N.J.S.A. 48:3-51, -87(t).
After the DEP reviewed CEP's Winslow site application, it provided the
BPU an advisory memorandum in May 2023 addressing the "land use
classification and [] remediation status of the proposed site." The DEP
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determined the site did "not constitute a 'properly closed sanitary landfill
facility'" under N.J.S.A. 48:3-51 because: no closure plan for the site had been
received for DEP's approval as of May; a 2011 closure plan required "capping
the landfill, collecting and managing landfill gases, and collecting and managing
stormwater"; the site's "landfill closure must meet requirements of the Pinelands
Comprehensive Management Plan, as well as any applicable [DEP]
requirements under Solid Waste and Site Remediation rules"; and the "site is not
fully remediated and has numerous steps to take before installing a final cap."
On July 12, 2023, the BPU issued an order denying CEP's application after it
reviewed the Winslow site application, DEP's determination, and the BPU staff's
recommendation because the Winslow site was not a properly closed sanitary
landfill.
On appeal, CEP raises similar arguments for reversal under A-3945-22
and A-3947-22. CEP contends the BPU's orders incorrectly denied conditional
certifications for subsection (t) solar facility projects under the TI program
solely because the sites were not closed sanitary landfill facilities at the time of
the applications. CEP contends the BPU orders are arbitrary, capricious, and
unreasonable because the decisions: are not in keeping with legislative intent,
statutory language, regulations, and policies; involve no analysis or
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consideration of the matter and reflect a failure to consider the reality of the
applications; and are not in keeping with the policy of the State on solar
development and the use of property for solar development.
II.
Our scope of review of administrative agency determinations is limited.
Bd. of Educ. v. M.N., 258 N.J. 333, 342 (2024). "[T]he BPU's power to regulate
utilities is broad." In re Centex Homes, LLC, 411 N.J. Super. 244, 255 (App.
Div. 2009). Accordingly, "the BPU's 'rulings are entitled to presumptive
validity.'" In re N.J. Am. Water Co., 169 N.J. 181, 188 (2001) (quoting In re
Petition of Jersey Cent. Power & Light Co., 85 N.J. 520, 527 (1981)). While we
are not bound to an agency's statutory interpretation, "[w]e will ordinarily defer
to an agency's reasonable construction of statutes it is charged with
implementing." In re Competitive Solar Incentive ("CSI") Program Pursuant to
P.L. 2021, C.169, 478 N.J. Super. 341, 349 (App. Div. 2024). "Like all matters
of law, we apply de novo review to an agency's interpretation of a statute or case
law." In re Proposed Constr. of Compressor Station (CS327), 258 N.J. 312, 327
(2024) (quoting Russo v. Bd. of Trs., 206 N.J. 14, 27 (2011)).
"'The Legislature has endowed the BPU with broad power to regulate
public utilities . . . [and] considerable discretion in exercising those powers.'"
A-2871-22
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In re Ownership of Renewable Energy Certificates ("RECS") under the Elec.
Disc. & Energy Competition Act, 389 N.J. Super. 481, 492 (App. Div. 2007)
(alteration in original) (quoting In re Elizabethtown Water Co., 107 N.J. 440,
449 (1987)). On appeal, our review of an agency's action focuses on:
(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.
[Allstars Auto. Grp., Inc. v. N.J. Motor Vehicle
Comm'n, 234 N.J. 150, 157 (2018) (quoting In re
Stallworth, 208 N.J. 182, 194 (2011)).]
An appellate court will not disturb an action by the BPU unless it is found
to be "'arbitrary, capricious, unreasonable, or beyond the agency's delegated
powers.'" In re N.J. Am. Water Co., 169 N.J. at 188 (quoting In re Amend. of
N.J.A.C. 8:31B-3.31, 119 N.J. 531, 544 (1990)). N.J.S.A. 48:2-46 provides us
"jurisdiction to review any order of the [BPU] and to set aside such order in
whole or in part when it clearly appears that there was no evidence before the
[BPU] to support the same reasonably or that the same was without the
jurisdiction of the [BPU]."
A-2871-22
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III.
Guided by these legal principles, we address each appeal in turn regarding
the sufficiency of the BPU's orders.
We first consider CEP's appeal of the BPU's order denying reconsideration
of its order, which granted TI program registrants up to two six-month
extensions for solar subsection (t) projects. CEP contends the BPU's decisions
were arbitrary, capricious, and unreasonable because the BPU relied on a
mistaken timeframe for the completion of the PJM interconnection process. We
are not persuaded.
The BPU's reconsideration decision acknowledged it miscalculated the
PJM's expected 2025 completion timeline for solar subsection (t) projects filed
for the PJM interconnection process between October 2020 and September 2021.
The PJM's actual projected completion timeline was "between September and
November 2026." The BPU's reconsideration order explained the date error was
immaterial, highlighted the reasons for granting the limited extensions for up to
one year, and incorporated its August 2022 order's findings and conclusions.
The BPU's August 2022 order specifically rejected open-ended extensions
for subsection (t) projects and explained the extensions were intended to move
forward projects almost ready to quickly deliver customers clean energy.
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Specifically, the BPU's order elaborated that the extensions were intended to
"appropriately slot projects that are more than three . . . years away . . . from
achieving PTO into the future CSI program," which was implemented under the
SuSI program. It is undisputed the TI program was an interim bridge program
until the BPU established the SuSI program and that each program provided
developers different solar facility incentives.
We find no merit in CEP's argument that the BPU's August order was
arbitrary, capricious, and unreasonable because it failed to provide sufficient
extensions to benefit more developers with pending subsection (t) projects
delayed by the PJM interconnection process. As recognized by the BPU, a
paramount consideration was the "interest of ratepayers" and the detriment in
not transitioning projects into the legislatively mandated new programs. The
BPU sufficiently reasoned the TI rules balance "costs and benefits to
ratepayers," support "growth of the solar industry," and have the "general
purpose . . . to provide a smooth transition to [the SuSI program]."
Contrary to CEP's contention, project developers' success was not the only
consideration. We emphasize N.J.A.C. 14:8-10.4(f)(4)(i)(3) put the solar
facility developers seeking subsection (t) project certification on notice of the
established two-year timeframe to PTO. Further, developers were advised that
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subsection (t) projects not completed were to transition to the SuSI program.
See In re a Solar Successor Incentive Program, 2021 N.J. PUC LEXIS 300, at
*53-54. We conclude the BPU's orders provided sufficient findings that
balanced the varying policy considerations, including the solar facility
developers' interests in the extensions. Thus, we discern no error in the BPU's
order denying reconsideration of the established two six-month extensions of up
to one year.
For the sake of completeness, we address CEP's argument that the BPU
arbitrarily granted extensions for "registrants within the . . . [CSEP] program"
while not providing greater extensions to TI program developers. We generally
decline to consider questions or issues not presented below when an opportunity
for such a presentation was available. Nieder v. Royal Indem. Ins. Co., 62 N.J.
229, 234 (1973); See also D'Ambrosio v. Dep't of Health and Senior Srvs., 403
N.J. Super. 321, 334 (App. Div. 2008) (recognizing claims not presented in an
earlier proceeding are inappropriate for consideration on appeal unless the
claims concern matters of great public interest). Because we believe the issues
presented here are of public concern, we have considered CEP's contention of
disparate program extensions but conclude it is without merit. The pilot CSEP
provided the opportunity for "residents across the state to take part in the clean
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energy transition." In re Cmty. Solar Energy Program, No. QO22030153, 2023
N.J. PUC LEXIS 217, at *62 (Bd. Pub. Utils. Aug. 16, 2023). On January 17,
2019, the community solar pilot program was launched with the purpose to study
and provide "necessary experience in implementing community solar in New
Jersey" for "low-to moderate-income . . . customers." Id. at *2, *4. Further, it
"laid the groundwork for the development and implementation of a permanent,
full scale CSEP in conformance with the [CEA]." Id. at *4. Providing the BPU
with the requisite necessary deference and recognizing there are distinct policy
considerations between the CSEP and TI programs, we discern no reason to
disturb the BPU's decision to grant TI program subsection (t) projects extension
of up to one year.
We now turn to CEP's appeal, under A-3947-22, regarding the BPU's
denial of the Pemberton site's subsection (t) conditional certification. CEP
contends it was "not in keeping with the legislative intent, statutory language,
regulations and policy for the BPU to deny their application for conditional
certification based on the finding that the Pemberton site was not a properly
closed sanitary landfill." We are again unpersuaded.
The BPU's order provided sufficient analysis and findings, which were not
contrary to N.J.S.A. 48:3-51, N.J.S.A. 48:3-87(t), or its January 2013 order. The
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BPU's January order acknowledged the DEP's concerns regarding the
"construction of solar generation on" properly closed sanitary landfills and other
sites. In re Implementation of L. 2012, C. 24, The Solar Act of 2012, No.
EO12090832V, 2013 N.J. PUC LEXIS 27 (Bd. of Pub. Utils. Jan. 24, 2013).
The BPU's January order approved the certification process framework and
noted "[f]or [sites] proposed to be located on properly closed landfills,
conditional certification will be recommended by [the] DEP when specific
action must be taken to protect the integrity of the closed landfill." Here, CEP
conceded the Pemberton site was not a properly closed sanitary landfill facility
because "a permit remained needed, and . . . the development of the solar
facility . . . require[d] the proper final closure before the construction."
Contrary to CEP's contention, the BPU's January order does not support the
proposition that a conditional certification may be given for a site, which is not
a properly closed sanitary landfill facility, based on a developer's future
intention to procure a closure plan to rehabilitate the site while proceeding
through the BPU's subsection (t) certification process. The BPU's January order
specifically contemplated a developer's continued maintenance of a closed
landfill's integrity, as required by the DEP.
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Further, we reject CEP's argument that the BPU did not consider "the
actual state of the [Pemberton]" site and the developer's ability to reach a
properly closed sanitary landfill facility on the site before construction and
operation. A "properly closed sanitary landfill facility" must have completed all
the DEP's requirements "to prevent, minimize, or monitor pollution or health
hazards resulting from a sanitary landfill facility." N.J.S.A. 48:3 -51. We
recognize CEP's strong public policy arguments that solar energy projects and
the remediation to properly close landfills are encouraged, as established in the
Energy Master Plan. N.J. Bd. of Pub. Util., N.J. Energy Master Plan, Section 6,
at 112 (2019); N.J.S.A. 52:27-15(b). Nevertheless, the BPU sufficiently found
the well-supported public policy reasons for a "properly closed sanitary landfill
[facility]," "prevent[ing] contamination" and protecting the environment and
public health, substantially outweighed the interests of a solar developer in
proceeding with certification to operate a solar facility. Undisputedly, the
Pemberton site required more than continued monitoring measures
commensurate with what is necessary for a closed sanitary landfill.
Turning to CEP's appeal under A-3945-22, CEP also challenges the BPU's
denial of the Winslow site's conditional certification. CEP similarly conceded
the Winslow site was not a properly closed sanitary landfill facility, as "a permit
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remained needed, and that the development of the solar facility would require
the proper final closure before the construction." Further, CEP again
acknowledged "at the time of the application, the [Winslow site] was not a
properly closed sanitary landfill [facility]." Moreover, it appears unrefuted that
Winslow Township's appointment of CEP as the Winslow site's redeveloper was
revoked in November 2021. The DEP provided a reasoned determination why
the Winslow site did not meet the criteria for a properly closed sanitary landfill
facility as it required remedial measures and a closure plan.
Notably, the DEP determined there was no closure plan for the Winslow
site as of May 2023, and the prior closure plan required "capping the landfill,
collecting and managing landfill gases, and collecting and managing
stormwater." After reviewing CEP's application, the BPU properly determined
the Winslow site was not "complete with respect to all activities associated with
the design, installation, purchase, or construction of all measures, structures, or
equipment required by the . . . [DEP] . . . to prevent, minimize, or monitor
pollution or health hazards resulting from a sanitary landfill facility." N.J.S.A.
48:3-51. CEP provides no support for its argument that the BPU should have
issued a conditional certification for the Winslow site because it "was
essentially" a closed sanitary landfill facility that only required limited
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remediation. We discern no error in the BPU's decision that the site was not a
"properly closed sanitary landfill [facility]." The BPU's decision provides ample
findings based on substantial evidence in the record. See Allstars Auto Grp.,
Inc., 234 N.J. at 157 (quoting In re Stallworth, 208 N.J. at 194).
Likewise, we are unpersuaded by CEP's argument that the BPU's decision
deviated from the State's solar policy. CEP's regulatory interpretation that a
sanitary landfill closure may be obtained after remedial measures are completed
using TI program incentives funding, derived from utility ratepayers' subsidies,
is without merit. See N.J.S.A. 48:2-21. Again, CEP has failed to cite support
for its argument that proper closure is sufficient if completed prior to "the
installation of the solar array." The necessary remedial measures and a closure
site plan were required before the DEP would deem the Winslow site a properly
closed sanitary landfill facility and consequently, before the BPU could issue a
subsection (t) conditional certification.
Accordingly, we find no basis to depart from our general rule of deference
to the BPU's decisions, which are amply supported by the record, and conclude
the BPU reasonably construed the applicable statutes and regulations it is
charged with implementing. See In re Pub. Serv. Elec. & Gas Co., 167 N.J. 377,
384 (2001).
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To the extent not addressed, appellant's remaining contentions lack
sufficient merit to warrant discussion in a written opinion. R. 2.11-3(e)(1)(E).
Affirmed.
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