WolfeNotes.com

NJ Natural Gas SRL Pipeline Next In Line

Climate catastrophe buried under the rubble of pipeline lies

[Update below – Order based on fact error!]

The trite saying goes: if you’re in a hole, it’s best to stop digging.

Go tell that on the Pinelands Commission, who today dished out even more shovels seemingly in search of bedrock.

After being rebuked by the NJ Appellate Division for violating the Pinelands Act and CMP as a result, in part, of allowing their Executive Director to run roughshod over them and publicly blasted by 4 former Governors and a former Executive Director, major NJ newspaper Editorial Boards, massive protests, and over 6,000 critical public comments, one would think the Commission would be humble and proceed deliberatively.

One would be wrong.

Instead, the Commission denied a request by the Pinelands Preservation Alliance (PPA) to stay construction of the controversial South Jersey Gas pipeline approved by the Commission on February 24, 2017 pending the outcome of the PPA’s legal challenge.

Adding insult to injury, in doing so, the Commission repeated past abuses by adjourning into secret executive session and then rubber stamping a previously drafted Order and Resolution, all before any opportunity for the public to review the draft Order and Resolution and comment to the Commission on the matter before they voted.

Commissioner Lohbauer opposed the Resolution and he spoke out to agree that PPA’s stay request was valid. Lohbauer agreed with PPA’s claims that – should the SJG pipeline commence construction – 1) the Pinelands would suffer irreparable harm, particularly due to risks to surface and groundwaters; 2) that the Commission violated the due process rights of the public and the Pinelands Protection Act and Administrative Procedures Act by excluding many people from testifying and failure to amend the CMP in response to the Court’s remand prior to voting; and 3) that the underlying SJG approval issued by the Commission was flawed because the SJG pipeline did not meet the standard in the CMP that the pipeline primarily serve only the interests of the Pinelands.

Lohbauer did not agree with PPA’s claims that Commissioners had conflicts of interest.

Lohbauer’s NO vote was supported by Commissioners Ashmum, Lloyd, Prickett, and Rohan-Green. They lost by an 8-5 vote.

The Commission again got blasted by the public not only for their approval of the SJG pipeline, but for numerous other actions that undermined the public’s trust and confidence in the Commission and the integrity and independence of the Pinelands Commission and the Comprehensive Management Plan.

Commissioner Jannarone was criticized for her SLAPP suit against 14 people who submitted comments on her real estate firm’s Facebook page.

Chairman Earlen tried to stop my testimony on this topic – I refused and forcefully objected to his attempt to suppress my testimony. What a jerk.

Commissioner Barr was criticized for his press statements prior to the vote where he announced his support of the pipeline – 3 days before his colleagues were to deliberate and vote on it – and based on irrelevant and “ultra vires” factors, like job creation, local tax revenues and economic development. Barr needs to read the CMP and his sworn oath to protect the Pinelands!

Apparently, the PPA’s stay request also alleges conflicts of interest by Commissioner Chila due to his relationship with the IBEW union, who supported the pipeline aggressively and Commissioner Barr had conflicts due to his role as Treasurer of the Cape May Democratic Party, who, among other things, received IBEW contributions in support of candidates that supported the pipeline.

I explained to the Commission that NJ Ethics law is based on an “appearance” standard – all that is needed is a fact based reasonable appearance of a conflict – not an actual substantive conflict – to trigger restrictions.

During the general public comment period, I also blasted the Commission for failure to make any progress on the issue of climate change or implementation of the water restrictions recommended by the Kirkwood – Cohansey Project – or to charge applicants adequate fees to budget or fill 22 professional vacancies. I’ve written about these issues before so hit the links or do a word search if you are interested in the details.

I cited the recent USGS phenology mapping initiative as a model framework for the basic science and monitoring initiative that is long overdue to document and assess climate impacts on Pinelands ecosystems.

Emile DeVito, PhD, of NJCF reiterated the urgency to stop ongoing destruction by off road vehicles and offered some interesting testimony in support of my climate remarks, citing his research on monitoring snakes and the timing of their hibernation. He strongly recommended that regulatory timeframes designed to protect the species be revised to reflect climate impacts.

At the end of the meeting, Commissioner Lohbauer thanked the public for excellent testimony and he went out of his way to agree with me that climate change needs to be addressed. Now how ironic is that?

Commissioner Avery, after being called out for his misleading and false comments about a recent PJM Order related to the BL England plant (more forthcoming on that issue), then responded to some public criticism about his vote and claimed the CMP does not have “standards” to address climate change.

I explained to him after the meeting about the difference between “numeric standards” and “narrative standards”.

The CMP is loaded with narrative standards that require the application of the best available science, best professional judgement by the experts, and the exercise of discretion by the Commissioners within the scope of the Pinelands Act.

The “equivalent ecological protection” standard the Commission applied to the SJG MOA is just one notorious “narrative standard” – that is one among hundreds in the CMP.

[Update: 4/12/17 – In case refers of Avery don’t quit understand, the NY DEC denial of a Water Quality Certificate for a proposed pipeline turned on “narrative standards” ~~~ end update]

Avery is a hypocritcal slippery snake – a man with enough knowledge to plausibly lie.

Chairman Earlen left early, but not before apologizing to Commissioners Barr and Jannarone and Executive Director Wittenberg for the alleged threats they received from pipeline opponents.

What a crock of Bullshit: Jannarone is abusing the legal process to intimidate critics and suppress their free speech rights.

Chairman Earlen – and others like Senator Van Drew – are seeking to criminalize free speech and dissent by equating it with harassment and threats. Thus the 3 State Police officers present at a routine and civil meeting.

My goodness, even the NY Times – no radical rag – gets it. Add the Gov. Christie [R] Pinelands Commission to this growing list:

• Across the Country, a Republican Push to Rein In Protesters

All for now – the NJNG SRL is the next pipeline coming down the pike.

Will the Commission stop digging?

We doubt it.

[Update: I just read the Order adopted by the Commission today. I must note an egregious fact error.

On page 20 of the Order it states: (boldface mine):

“In addition, the only complaint the Commission received prior to the meeting regarding the venue size mistakenly believed it could only accommodate 120 people.” 

That statement is factually in error, as evidenced by the January 4, 2017 email  below I submitted to Commissioner Lohbauer, which was also submitted to the Commission’s public comment website portal, which explicitly objected to a lack of “adequate capacity”, among other things:

“I demand that the Commission select a civic building with adequate capacity to allow meaningful comment.”

While this comment was submitted in the context of the initial church location, the concern about the need for “adequate capacity to provide meaningful comment” was NOT location specific.

Here is the complete email:

On January 4, 2017 at 1:29 PM Bill WOLFE <bill_wolfe@comcast.net> wrote:Commissioner Lohbauer:

I just submitted the comment below to the Commission’s website. I urge you to intervene and remedy this situation.

Dear Commission:

I just received your email advising me of a change in location for the scheduled Jan 24 public hearing.

I find it offensive to have to sit in pews and testify in a Catholic Church – as well as an inappropriate and unconstitutional state endorsement of a specific religion.

I demand that the Commission select a civic building with adequate capacity to allow meaningful comment.

Additionally, the change in location would require additional public notice.

Bill Wolfe

Additionally, I blogged about and documented this issue and concern in a on January 14, 2017 post at Wolfenotes, see:

http://www.wolfenotes.com/2017/01/pinelands-commission-pulls-bait-and-switch-on-pipeline-hearing-location/

More to follow. ~~~ end update]

Audubon Loses “Forest Stewardship Council” (FSC) Certification

Christie DEP promotes logging in absence of state regulations and private certification

“The Mask is off”

According to the Associate Manager, Forest Management, North America at Rainforest Alliance, NJ Audubon has lost the certification of the Forest Stewardship Council (FSC) for their proposed expanded logging at Sparta Mountain Wildlife Management Area (WMA):

I wanted to let you know that the Sparta Mountain WMA is no longer included in the FSC certified. You can find the public summary of the 2017 project here:http://info.fsc.org/details.php?id=a0240000007vNetAAE&type=certificate&return=certificate.php

Rainforest Alliance is the private group that audits logging operations for compliance with FSC standards. FSC standards are private and voluntary and are not enforceable under federal or state environmental laws and regulations.

FSC standards are far more lenient that NJ land use and water quality laws and regulations, like those enforced under the NJ DEP’s Surface Water Quality Standards, stormwater, stream encroachment, and freshwater wetlands (e.g. 300 foot stream buffers, no impact on natural water quality, avoidance and mitigation, etc); or the Highlands Act (300 foot buffers, prohibitions on steep slopes, and 1,000 foot buffers around vernal ponds, et al). Logging is exempt from local land use ordinances too.

I don’t usually do this because the man has his own huge media megaphone, but today I quote my friend Jeff Tittel of NJ Sierra Club because he absolutely nails the significance of a very wonky issue:

“Audubon’s logging plan for Sparta Mountain will not be certified with FSC. This shows just how bad the plan is. When a group with weak standards and no real rules won’t even certify it, it means that it’s just a logging plan and has nothing to do with stewardship. The mask is off now since Audubon can no longer hide before FSC or stewardship.

This is not the first rebuke NJ Audubon received on Sparta Mountain WMA and their FSC cover scheme.

First of all, NJ Audubon got caught in a lie – a story we broke – when they changed the FSC designation of Sparta Mountain as “High Conservation Value” (HCF) forest.

Contrary to false local media, FSC HCV designation establishes higher management objectives that discourage and place additional burdens and restrictions on commercial logging in HCF forests.

As we wrote, under FSC standards, NJ Audubon initially designated the Sparta Mountain as “High Conservation Value Forest” (HVCF) due to exceptional biodiversity (SMWMA).  HCVF’s are subject to strict management standards that tend to promote preservation and limit the intensity of commercial logging in order to protect those high conservation values. FSC management options for HCVF include preservation and “no cut”. Here is the FSC standard:

Intent: High Conservation Value Forests are managed to protect and maintain their identified high conservation value attributes. In some cases, active management is consistent with these attributes, and in other cases (e.g., most old growth forests), active management is specifically precluded.

According to FSC standards, mapping HCVF should be based on a “precautionary approach”, particularly under uncertainty or lack of data, including issues like suitable habitat and presence or absence of species:

2.6.2 | Using the precautionary approach

The Precautionary Approach means that when there is a threat of severe or irreversible damage to the environment or a threat to human welfare, responsible parties need to take explicit and effective measures to prevent the damage and risks, even when the scientific information is incomplete or inconclusive, and when the vulnerability and sensitivity of values are uncertain14. In the context of HCV identification, this means that when there are reasonable indications that an HCV is present, the assessor should assume that it is present.

On top of that, the FSC audit of NJ Audubon’s Sparta Mountain logging scheme revealed that NJA not only failed to comply with FSC public participation and local government consultation requirements. The audit showed how NJA actively deceived FSC auditors as well as fellow NJ environmental groups by using false and misleading claims regarding the nature of their logging in “outreach” NJ Audubon conducted with NJ environmental groups.

Second, Governor Christie vetoed NJ Audubon’s number one legislative priority which was to establish an FSC certification program on all public lands in NJ. That horrible bill would not only have greatly expanded commercial logging in NJ forests, but it also would have granted NJ Audubon a financially lucrative monopoly as the only FSC certified forestry consultant in NJ. NJ Audubon is effectively a consultant, in it for the money and the government grants and contributions from commercial interests like hunters and the “guns and ammo” crowd.

In anticipation of passage of that law and the financial windfall that would accrue to them, NJ Audubon dramatically increased their forestry staff and budget.

Now that the writing is on the wall, the next DEP is unlikely to be grant funding NJA operations, so their deep pocketed members will have to pony up more donations to fund that budget, staff and CEO Stiles’ $102,000+ salary and extremely generous benefits.

Or maybe Donald Trump will write another check – or fellow billionaire Peter Kellogg will.

Third, NJ Audubon and DEP have conspired to cover up their forest planning on public lands by execution of a Memorandum of Agreement to keep information secret and by denying public records requests.

Regardless of the loss of FSC certification and statewide public outrage, NJ Audubon persists in their logging scheme – and in doing so, they expose another fatal flaw: DEP lacks the budget and manpower to properly oversee logging, Check out this spin by John Cecil of NJ Audubon: (NJ Herald)

When the 2016 audit report was released late in March, the Sparta Mountain WMA was not included among the parcels evaluated by the Rainforest Alliance.

Cecil said Tuesday that the decision was made by the state, with concurrence of Audubon, not to include Sparta Mountain.

“We included the first plan to give the agency (DFW) a good look at what the FSC standards are like,” said Cecil. “It is a very strict process.”

But that strict process also involves detailed reports which requires time and manpower to compile. 

Cecil said the state instead will adopt its own standards, much along the lines of the FSC, but not subject to the independent audit.

Cecil is spinning as obviously as friends of disgraced Trump strategist Steven Bannon.

I doubt that DEP made an FSC decision, but Cecil is correct that DEP lacks manpower to do the job.

But Cecil is misleading the public again – the FSC standards are weak and not remotely equivalent to NJ standards – even DEP opposed them .

Worse, there are NO ENFORCEABLE STATE DEP REGULATORY STANDARDS FOR LOGGING. THERE ARE NO PLANS TO ADOPT THEM.

Worse, as I recently wrote, Christie NJ DEP Commissioner Bob Martin is planning to expand the NJ Audubon logging scheme to all pubic lands – state parks, state forests, green acres, and WMA’s!

One of the first things the next DEP Commissioner must do is to impose a moratorium on DEP’s logging and “stewardship” initiatives, and defund the so called “conservation groups – not just NJ Audubon – that promote those failed and destructive programs.

A Burlington County Legislator Laid The NJ Legal Foundation

Energy corporations own all three branches of federal government, state agencies, and the law

We’re FERC’ed

“More Ways We Are Fucked” –

Those were the sentiments of a friend with People Over Pipelines, the local group battling the Williams Transco “Garden State Expansion Project” compressor station and NJ Natural Gas pipeline.

After getting screwed by the rigged DEP permit process, reamed by the Christie corporate BPU and betrayed by the corrupt Christie-Wittenberg Pinelands Commission, the group is now seeking to appeal the DEP permits.

As a former DEP regulator well versed in the regulatory game, I’ve long known we’re fucked, and fucked at multiple scales and dimensions – from taking on polluters and addressing climate change to challenging even minor environmental permits.

I’ve delicately tried to explain to residents and pipeline opponents that the regulatory game is rigged, but tried to do so in a way that does not disable activism and lead to cynicism, apathy and despair.

But, I must say, despite the race to the bottom and corporate polluter driven downward spiral of environmental regulation, even my worldly perspective has been surprised to learn exactly how outrageously rigged the game can be when played by Christie corporate hacks .

The latest example of a rigged game – that led to the POP conclusion of being “fucked” – comes not from corporate hacks at DEP or BPU or the Pinelands Commission or FERC- but rather from the judicial branch and the law.

I advised POP that the next step in the process was to get a lawyer to appeal the DEP permits administratively through the Office of Administrative Law (OAL) and that the most fruitful attack was the issuance of the DEP wetlands permit and “water quality certificate” (WQC).

I am no lawyer, but instead relied on my professional understanding of: 1) the EPA delegated DEP surface water quality standards and wetlands permit program, EPA Clean Water Act Section 401 WQC Guidance, and the NJ OAL appeal processes; 2) the New York State DEC denial of the Constitution pipeline’s WQC; and 3) a  successful Connecticut pipeline kill upheld by US District and Circuit Court of Appeals known as “Islander East”. (too lazy to post links to all these documents – shoot me an email if interested)

That Islander East case ruled that the federal Natural Gas Act did not preempt state permits issued pursuant to the Clean Water Act and Coastal Zone Management Act and upheld the State of Connecticut’s permit denial.

Like I said, I am not a lawyer, so was not aware that a recent federal court decision basically ruled that the State permit and administrative appeals process was preempted by the NGA and all challenges must be filed in federal appeals court. (A lawyer told me this – I’ve not read the decision).

BOOM! Just like that, the federal courts extinguished fundamental State law regarding environmental permitting and administrative appeals processes – including citizens rights to access state courts and state agencies.

It’s not enough that the federal Natural Gas Act was written by and for the gas industry or that the Federal Energy Regulatory Commission (FERC) that enforces the law is a rubber stamp that is completely captured and wholly owned by the gas industry, or that State energy regulatory commissions and environmental agencies are mostly in the tank for the fossil and nuke energy industry.

No, that’s not enough for these greedy bastards that are destroying the planet.

These corporate bastards have the courts as well – they own all three branches of government and law.

The public was fucked.

In addition, not only has federal law, FERC and federal courts fucked the public, but NJ Legislature and State Courts have screwed them as well.

The NJ Administrative Procedure Act (APA) at N.J.S.A. 52:14B-3.2, 3.3 was amended in 1993 to restrict a State agency from allowing “third parties” to appeal to the Office of Administrative Law to challenged a State agency permit.  The “third parties” that have  a right to go to OAL to challenge an agency decision false into 2 groups: 1) a permit applicant who was denied a permit or doesn’t agree with permit conditions, or 2) those with a “particularized” property right or constitutional right to an OAL hearing.  The courts have construed these amendments very strictly. Court have found that a “particularized interest” standard is very high, and it is not met by even an adjacent property owner

How more “particular” can an interest be than when a permit impacts your private property?

BOOM!

“Again, more ways we’re fucked”.

So, just who was it that amended the NJ Administrative Procedure Act to limit citizens access? And why? Can we string the bastard up?

Ironically, very few people realize that Burlington County farmers and residents that long have supported preservation of rural farmlands have been fucked by one of the early leaders of the Burlington County farmland preservation program.

Specifically, former Gov. Christie Whitman’s DEP Commissioner and Burlington County State Assemblyman Bob Shinn was the sponsor of the 1993 amendments to NJ’s law that narrowly restricted the standards to challenge a DEP permit at OAL:

Section 3.3a of the APA, as amended in 1993, clearly instructs that “[e]xcept as otherwise required by federal law or by statute that specifically allows a third party to appeal a permit decision, a State agency shall not promulgate any rule or regulation that would allow a third party to appeal [administratively] a permit decision.” N.J.S.A. 52:14B-3.3a. A third party is defined in the statute as “any person other than: a. [a]n applicant for any agency license, permit, certificate, approval, chapter, registration or other form of permission required by law; b. [a] State agency; or c. [a] person who has a particularized property interest sufficient to require a hearing on constitutional or statutory grounds.” N.J.S.A. 52:14B-3.2 (emphasis added).

By enacting these limitations, the Legislature unmistakably intended to prevent the processing of permit applications by State agencies from being bogged down by time-consuming and costly formal hearings in the OAL. To require such formal hearings routinely in every instance where a local resident raises some objection to a proposed State permit could produce enormous delays. Such hearings could easily consume substantial public and private resources. They are also prone to convert an agency’s administrative review process into a veritable litigation battleground. See N.J.S.A. 52:14B-3.1 (noting disruptive effects and “chaotic unpredictability and instability” potentially caused to the State’s business climate by allowing challenges to permits by third parties “who have no particularized property interests or who are not directly affected by a permitting decision”); see also In re NJPDES Permit No. NJ0025241 Issued to Asbury Park City, 185 N.J. 474, 482, 888 A.2d 454 (2006) (citing the same legislative finding).

Shinn sponsored that horrible Legislation at the request of developers, polluters, and the business community who wanted to “streamline” the process and eliminate the public’s rights.

I hope that Bob Shinn is held accountable and is shamed by his Burlington County neighbors for doing that – but I somehow doubt that will happen.

So we’ll do it now: Shame on you Bob Shinn!

 

Christie DEP elevates economics over science and natural resource protections

Ignoring science, DEP Commissioner Martin doubles down on economic exploitation

Commissioner Martin’s scheme must be stopped, just like his proposed clearcut of Bulls Island State Park was.

We call on readers to contact their legislators and demand a moratorium on logging of NJ’s public lands and Highlands forests.

Two recent actions by the Christie DEP illustrate a growing crisis in the policy and mismanagement of the New Jersey’s last remaining natural resources (and I’m intentionally leaving the slaughter of black bears and lots of other examples out of this brief note).

• Case #1 – fisheries

In 2008, I was hired by Pew Environment Group to manage their “Ending Overfishing in the Mid-Atlantic” campaign.

The justification for and focus of that Pew campaign was to defend anticipated strict new limits on the allowable catch of summer flounder, an over-fished but very popular species backed by powerful political interests centered in NJ (e.g. the lobbying group RFA and Congressman Frank Pallone).

However, shortly after I was hired, political pressure by those commercial and recreational fishing lobbyists and economic interests successfully pressured the Mid Atlantic Fisheries Management Council to revise their “stock assessment” to avoid more restrictive catch limits. As a result, more fish were allowed to be caught, jeopardizing sustainable fisheries populations.

Also as a result of the revised stock assessment, the planned Pew campaign was aborted and I left Pew as a warrior without a war: 

PEW is a very rational science-based organization. We advocate conservation. I expect that to be the expectation here.

Now, 8 years later, the chickens are coming home to roost. The most recent summer flounder stock assessment found that there was overfishing: (see MAFMC release):

But he’s as Seldom Seen as the NJ Devil

Latest sightings

1) RT 528, Chesterfield NJ

 2) Recently at Sparta Mountain

3) Somewhere in The Pinelands