Absurdity In the Pinelands

Corporate & Political Power Twist CMP & Commission Into A Pretzel

Regulatory Gymnastics of Executive Director Are Obscene and Legally Absurd

“It’s in the rules,” Ms. Wittenberg said. “I can’t change it.” ~~~ Wall Street Journal (Aug. 20, 2015)

[Update: 10/20/15 – Kirk Moore writes at NJ Spotlight on BPU Public hearing

Under Pinelands rules, private developments should be reviewed by local municipal land-use boards, under ordinances that incorporate the Pinelands standards, said environmental activist Bill Wolfe of Bordentown.

But the regulators’ recent moves on the gas line have led to the “absurd outcome” of the BPU having a final say without local reviews, Wolfe said.  ~~~ end update]

What is going on in the Pinelands with respect to proposed gas pipelines is patently illegal and absurd.

Today, we take on the absurdity of the South Jersey Gas pipeline review and leave the lawlessness for a future post.

Conclusions

In a nutshell, we conclude that it is a legally and logically absurd outcome for the Board of Public Utilities (BPU) to be the agency that reviews the South Jersey Gas company (SJG) pipeline for compliance with the Pinelands Comprehensive Management Plan (CMP).

That outcome is absurd because:

1) the BPU previously acted on behalf of the SJG pipeline by entering into a Memorandum of Agreement (MOA) with the Pinelands Commission. The MOA was the mechanism to bring the pipeline into compliance with the CMP. The purpose of the MOA was to secure Pinelands Commission approval of the SJG pipeline.

2) The outcome also is absurd because the BPU has issued 3 prior Orders approving the route, safety, and contracts for the SJG pipeline.

3) The BPU, in addition to the prior regulatory actions supporting and approving the SJG pipeline, will review and decide on a petition filed by SJG to pre-empt municipal review of the SJG pipeline. If BPU were to approve the SJG petition, BPU would become the review agency. This adds a whole new layer of absurdity.

4) The BPU lacks the expertise and institutional mission to conduct an adequate land use review and protect Pinelands resources as required by the Pinelands Act and CMP.

5) The Pinelands Act is silent on and provides no legislative authority or legal standards for the designation of the SJG project as a “private development application”; the issuance of a “Certificate of Filing” for the SJG project; the elimination of Pinelands Commission’s review powers; and the elimination of public hearings before the Commission.

6) The unique interaction of the Executive Director’s interpretation of the CMP and the SJG pre-emption petition results in an absurd outcome that could not have been anticipated by, considered by, or authorized by the Legislature or the CMP.

Accordingly, the Executive Director of the Pinelands Commission created an absurd outcome.

The BPU has gross conflicts of interest and can not be an impartial and objective review agency as required by law, thus an absurd outcome.

Argument

In law, there is a doctrine of “absurd outcomes“:

The absurdity doctrine, also known as the “scrivener’s error” exception, is a legal theory under which American courts have interpreted statutes contrary to their plain meaning in order to avoid absurd legal conclusions.^[14][15][16] It is contrasted with ^[17]

“The common sense of man approves the judgment mentioned by Pufendorf [sic. Puffendorf], that the Bolognian law which enacted ‘that whoever drew blood in the streets should be punished with the utmost severity’, did not extend to the surgeon who opened the vein of a person that fell down in the street in a fit. The same common sense accepts the ruling, cited by Plowden, that the statute of 1st Edward II, which enacts that a prisoner who breaks prison shall be guilty of a felony, does not extend to a prisoner who breaks out when the prison is on fire – ‘for he is not to be hanged because he would not stay to be burnt‘.”^[18]

The leading 1868 US Supreme Court case involves the prosecution of a sheriff who arrested a mailman (footnotes deleted):

An early Supreme Court decision, Kirby v. United States provides a good example both in historical terms and in terms of the principle’s present application.” Kirby involved a statute that  prohibited a person from “knowingly and willfully obstruct[ing] or retard[ing] the passage of the mail, or of any driver or carrier.” Defendant Kirby was a county sheriff who had a bench warrant commanding him to arrest a man named Farris, who, in addition to having been indicted for murder, also happened to be a mail carrier. Kirby and his posse arrested Farris while he was carrying the mail, and were indicted for violating the statute. The Court ruled that the statute did not apply to the situation before it. …

… the Court set up a presumption with regard to legislative intent. It began by saying that no legislative intention to exempt mail carriers from such an arrest “should be attributed to Congress unless clearly manifested by its language,”and then continued:

“All laws should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice, oppression, or an absurd consequence. It will always, therefore, be presumed that the legislature intended exceptions to its language, which would avoid results of this character The reason of the law in such cases should prevail over its letter.”

Ironically, legal scholar and former Obama regulatory Czar Cass Sunstein has written about the absurdity doctrine in the context of environmental regulatory decisions.

Sunstein’s argument is that environmental agencies should have the legal flexibility to avoid absurd outcomes that could result from a literal reading of the statute passed by a legislature. Agencies have expertise and – as an institution –  should be afforded latitude, not handcuffed by inflexible legalistic formalism.

Sunstein’s summarizes this new principle:

In the last two decades, federal courts have been developing a new and thus far unacknowledged canon of regulatory law: As a general rule, administrative agencies will be taken to have the authority to interpret statutes so as to avoid absurd or patently unreasonable results, even if the interpretation is hard to square with the literal language of the statute. This canon authorizes agencies, and in particular agencies that regulate the environment, far more flexibility in the interpretation of literal language than courts are now permitted to have. My narrow goal in this Essay is to describe and to defend this canon. My broader goal is to use the canon as a basis for urging that contemporary theories about interpretation go wrong by emphasizing large claims about democracy and legitimacy at the expense of an inquiry into the real-world capacities of our various institutions, including the U.S. Environmental Protection Agency (EPA) and the federal courts.

The Suntein argument is ironic in the Pinelands case, because the absurd outcome was produced by the regulatory agency itself!

The absurdity was created by Executive Director Wittenberg’s regulatory gymnastics:

First, Wittenberg unilaterally reversed a prior regulatory finding that the SJG pipeline violated the forest standards of the CMP because it did not “primarily serve only the Pinelands“, as required by the CMP;

Second, Wittenberg shoehorned a project – defined under Pinelands CMP regulations as “Public services” and “Public service infrastructure” by SJG, a corporate entity regulated under NJ law as a “public utility” – into a section of the CMP designed for the review of local governments (NJAC 7: 50-4.34 – certificate of filing) , as a “private development application”.

Third, because the SJG petition to BPU to preempt local review under the NJ Municipal Land Use Law was pending at the time her decision was made, Wittenberg knowingly created the absurd outcome whereby BPU becomes the agency to review the SJG project for compliance with the CMP.

We will make this and other arguments at the BPU’s October 19, 2015 public hearing on the SJG preemption petition.

But the real action will occur 2 days later at the BPU’s evidentiary hearing, which will determine the outcome.

That’s where these kind of arguments must be made – and we are pleased to note that the attorneys for the Pinelands Preservation Alliance have petitioned BPU to intervene in that hearing.

We’ll keep you posted.