Christie BPU Slated To Issue Key Approval For Pinelands Pipeline Tomorrow

South Jersey Gas petition would preempt local land use reviews

Local preemption would vest sole review over Pines pipeline with BPU

Legislators asked to intervene, conduct oversight, or veto BPU decision

At the last minute, in the wake of the Paris climate accord and a week before Christmas, the Christie Board of Public Utilities (BPU) put the South Jersey Gas Pinelands pipeline on the Agenda for tomorrow’s BPU public hearing:

6. Docket No. GO13111049 – In the Matter of the Petition of South Jersey Gas Company for a Determination Pursuant to the Provisions of N.J.S.A. 40:55D-19.

Should BPU grant SJG’s petition, two things would happen:

1) local governments would be preempted from any reviews under local planning and zoning laws; and

2) the pro-gas BPU, who has already issued 3 Orders approving various aspects of the SJG pipeline, would be the agency to review the pipeline for compliance with the Pinelands Comprehensive Management Plan (CMP).

Repeat: BPU, not the independent, legislatively authorized, and technically qualified Pinelands Commission, would review, determine compliance, and vote to approve or deny the SJG Pinelands pipeline under the CMP.

This is LEGALLY ABSURD.

To make matters even worse, there is no opportunity for the public to comment at tomorrow’s BPU meeting.

So, as a last ditch effort to derail this monstrous decision by BPU, I appealed to Senator Lesniak, who has opposed the pipeline and Senate Environment Committee Chairman Bob Smith.

I’ve requested a legal opinion by the Office of Legislative Services (OLS) regarding the scope of their Constitutional power to veto Executive Branch decisions and to hold legislative oversight hearings of BPU’s decision.

The BPU’s decision to preempt local MLUL powers has statewide implications and the preemption in the context of there Pinelands Act is a major prededential decision virtually certain to face legal challenge.

Dear Senators Smith and Lesniak:

As you know, the NJ Constitution’s  Article V, section IV, paragraph 6 power applies to executive branch rule making (text below).

Has OLS considered the application of this Legislative power to actions by the Board of Public Utilities (BPU)? Could BPU decisions be construed as “rules” within the meaning of this Article?

Tomorrow, the BPU is scheduled to consider a petition, filed by South Jersey Gas for a Determination Pursuant to the Provisions of N.J.S.A. 40:55D-19 – preemption of municipal land use review powers under the MLUL.

This is the Pinelands pipeline – because the Pinelands Commission issued a “Certificate of Filing”, should BPU approve this petition by SJG then BPU would have dispositive final approval powers over the pipeline, subject ONLY to the STAFF review by the Pinelands Commission, not the vote of the full Commission.

Is the BPU’s determination in this matter subject to Legislative oversight?

Is the BPU’s determination in this matter subject to Legislative veto pursuant to  Article V, section IV, paragraph 6 powers?

We urge your immediate attention to this matter,

Respectfully,

Bill Wolfe

6.   No rule or regulation made by any department, officer, agency or authority of this state, except such as relates to the organization or internal management of the State government or a part thereof, shall take effect until it is filed either with the Secretary of State or in such other manner as may be provided by law.  The Legislature shall provide for the prompt publication of such rules and regulations.  The Legislature may review any rule or regulation to determine if the rule or regulation is consistent with the intent of the Legislature as expressed in the language of the statute which the rule or regulation is intended to implement.  Upon a finding that an existing or proposed rule or regulation is not consistent with legislative intent, the Legislature shall transmit this finding in the form of a concurrent resolution to the Governor and the head of the Executive Branch agency which promulgated, or plans to promulgate, the rule or regulation.  The agency shall have 30 days to amend or withdraw the existing or proposed rule or regulation.  If the agency does not amend or withdraw the existing or proposed rule or regulation, the Legislature may invalidate that rule or regulation, in whole or in part, or may prohibit that proposed rule or regulation, in whole or in part, from taking effect by a vote of a majority of the authorized membership of each House in favor of a concurrent resolution providing for invalidation or prohibition, as the case may be, of the rule or regulation.  This vote shall not take place until at least 20 calendar days after the placing on the desks of the members of each House of the Legislature in open meeting of the transcript of a public hearing held by either House on the invalidation or prohibition of the rule or regulation.

[Update – close of business, 5 pm:

I sent the Lesniak/Smith letter to PPA, Sierra Club, Environment NJ, and Food and Water Watch this morning asking for support.

Didn’t get the respect of a reply, except from Lena of FWW.

I think they all just are afraid to be associated with my name – the Yes Men stunt was probably the last straw.

Cowards.

But noted that PPA did send out an alert to their members, but with no mention of any effort to lobby legislators.

[Update #2 – both Sierra Club and PPA have effusively and publicly praised Senator Lesniak for his opposition to the pipeline, so why wouldn’t they publicly call on him now for support?

PPA:

Even worse than the hastily called Judiciary Committee meeting is the fact that Senate President Sweeney chose to replace a committee member, Senator Lesniak (who was vacationing), with Senator Van Drew. Senator Lesniak has been an outspoken advocate against the pipeline and the nomination of Robert Barr. Senator Van Drew, as mentioned above, is an outspoken supporter of the pipeline. Senator Lesniak tried to return in time for the vote but by then he had already be replace by Senator Van Drew and it was Senator Van Drew’s vote that passed Barr out of the Judiciary Committee.

Sierra Club:

“This is not just about the pipeline, that’s just one issue, but the future of the Pinelands in South Jersey,” added Jeff Tittel, Director of the New Jersey Sierra Club, who said he’d received a letter from Lesniak saying he supports Jackson’s work on the commission and continues to support him.

More from Sierra Club, who suggested a “purge”:

Sen. Raymond Lesniak, D-Union, an opponent of the pipeline, was absent from the Tuesday vote. Sweeney replaced him with project proponent Sen. Jeff Van Drew, D-Cape May.

Sweeney said the change was routine.

“Lesniak had told us he wasn’t coming so we substituted for him. If he really wanted to come, he could have been there, but it wouldn’t have changed the outcome,’’ Sweeney said.

Jeff Tittel, state director of the Sierra Club, said Barr taking the place of Robert Jackson, who was not reappointed after opposing the pipeline, demonstrated that “the governor is trying to get rid of all the commissioners who opposed the pipeline and this is part of that purge.’’

They even generated a favorable Star Ledger editorial praising Lesniak:

How did Barr clear the hurdle this time? Sweeney got curiously lucky that Sen. Raymond Lesniak (D-Union) happened to be late for the vote, so his spot on the committee was filled by Sen. Jeff Van Drew (D-Cape May).

Unlike Lesniak, Van Drew supports the pipeline, which will run 22 miles — mostly through the forest and on the shoulder of Route 49 – and feed natural gas to the B.L. England power plant in upper Cape May County.

Lesniak has gotten a lot of mileage out of his Pinelands pipeline opposition – he should be called on and deliver help when crunch times like BPU’s vote come along.