Pinelands Commission Lawyer Claims Agency Lacks Power To Consider Climate Change In Review of $500 Million Fossil Infrastructure Project

Shocking and Blunt Discussion By Commission Unknowingly  Caught On Audio Tape

[Update: 10/19/13 – Kirk Moore, Asbury Park Press connects the dots: Report: Pinelands Commission Sidestepping Protections

I need to make one clarification, however, and it is important. Kirk reported that the tape was during Executive Session. That is not my understanding. The discussion on that tape occurred during the public session. This is important because the Commission will want to keep the substance of that discussion confidential and exempt from OPRA (see letter below), while creating the false impression that I somehow violated that confidentiality.

But even if the discussion cured during executive session – which it did not – the Commissioners were violating the narrow subject matter that can be discussed in Executive Session. end update]

A source recently provided me an audio tape of a 14 minute discussion by the Pinelands Commission, recorded during the September 13, 2013 meeting.

I was disturbed by what I heard and will share that entire tape just as soon as I can get a link made.

The Commissioners had just resumed from Executive Session and re-opened the meeting. The room was empty, the public having long gone home.

The Commissioners seemed unaware that they were being recorded and engaged in frank and deeply  disturbing discussions.

In a stunning and highly significant moment, legal Counsel to the Pinelands Commission, Ms. Roth, advised the Commission that they lack legal jurisdiction to review climate change related impacts and risks associated with the proposed 22 mile gas pipeline across the Pinelands to re-power the BL England power plant at Beesley’s point.

[Update: here is how the approved minutes whitewash that 14+ minute discussion:

Commissioners briefly discussed pre-application meetings and next steps for the South Jersey Gas application. – end update]

That legal guidance was conveyed – verbally – to Commissioners.

How is that even possible? How can a legal issue of this significance be conveyed casually, in an informal conversation?

Roth’s guidance was challenged immediately by a Commissioner, who is an experienced environmental lawyer.

Earlier, during the preceding Commission hearing that day, prior to Ms. Roth’s verbal guidance, I had testified to request that the Commission direct staff to build a legal and scientific nexus between pipeline emissions of greenhouse gases, the secondary impacts from the BL England plant’s GHG emissions, and the Commission’s enabling statute and relevant provisions of the CMP and implementing regulations.

[Update: per the approved minutes:

Bill Wolfe, New Jersey PEER, provided comments on the pre-application process. He also urged Commissioners to hire an independent consultant. He closed by urging staff and counsel to build the links both scientifically and legally to the Commission’s jurisdiction with regard to climate change. -end update]

I suggested direct climate change related impacts and linkages to forest ecosystems and fire risks.

I suggested that the Commission had clear enabling authority.

As I wrote, the US Forest Service has documented climate impacts and risks to Pinelands forests(see this) and is conducting research on these impacts (see this).

Ms. Roth’s legal guidance is hugely significant and it obviously can not stand unchallenged.

See the below letter to Chairman Lohbauer, which is the first step in challenging this absurd and irresponsible legal advise:

October 15, 2013

Dear Chairman Lohbauer:

At a prior public hearing, during my testimony, I asked the Commission how to navigate OPRA requests for Commission documents and was told that requested information is provided on an informal basis. It is with that commitment in mind that I make the following requests in lieu of filing a formal OPRA request.

It has come to my attention that Pinelands Commission Counsel, Ms. Roth, advised the Commissioners, on the public record and during an open portion of the the September 13, 2013 public meeting, the the Commission lacks jurisdiction and a legal basis to regulate the emissions of greenhouse gases or the impacts of climate change on the Pinelands.

Commissioner X, an experienced environmental attorney, rejected that analysis and stated he could make a legal argument to the contrary.

I’d be glad to provide the specific quote from Ms. Roth and Commissioner X, verbatim, from a transcript of the recorded hearing.

The portion of the hearing I refer to is after the Commission reconvened from Executive Session and before a motion to adjourn was offered.

Because this legal advise Counselor Roth provided during public session and on the record has major implications, I must inquire upon what legal basis and by what legal reasoning Ms. Roth so advised the Commission.

Of course you realize that legal advise provided during public session is not a “deliberative” exemption under OPRA or otherwise protected by attorney client work product confidentiality.

Specifically:

1. has the Attorney General’s Office issued a legal memorandum of law regarding the Commission’s jurisdiction in this regard? If so, please provide a copy of that Memorandum of law.

2. Has the Commission requested such  legal advisory opinion from the Attorney General’s Office? If so, please provide the relevant correspondence.

3. Has Ms. Roth rendered a written legal opinion to support her advise to the Commissioners? If so, please provide a copy of that written opinion.

4. On what basis did Ms. Roth provide that legal opinion? Please provide the written basis.

5. Has the Commission accepted Ms. Roth’s opinion that the Commission lacks jurisdiction to regulate either the emissions of greenhouse gases of the impacts of climate change? Please provide the Commission’s legal analysis or policy statement in this regard.

Surely you understand that the above legal questions are highly significant, substantive, germane to the Commission’s ongoing review of the pending South Jersey Gas Co. pipeline application and the development of a Memorandum of Agreement (MOA).

Surely you also realize that the above documents requests are within the scope of OPRA and are public records.

And surely you will agree that the principles of transparency, rule of law, and sound decision making require response to the above questions and provision of the requested legal opinions, should they exist.

I look forward to your earliest and favorable response, certainly with sufficient time to prepare for the next public meeting of the Commission.

Sincerely,