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“Electoral College Do Your Job – Don’t Elect A Demagogue!”

December 19th, 2016 No comments

Message From Trenton, NJ: “Stop Trump”

NJ Statehouse, Trenton NJ (12/19/16)

NJ Statehouse, Trenton NJ (12/19/16)

Despite the cold and wind, over 200 hardy citizens went to Trenton NJ today to give a message to the electoral college:

“Electoral College Do Your Job – Don’t Elect a Demagogue” they chanted during a Statehouse protest.

Electors met in 50 State Capitals today to select the next President.

The question is: should they honor their State vote pledge to Trump or vote their conscience.

Harvard Law Professor Lawrence Lessig makes the case that electors are not legally bound to honor their state vote, that the ethical obligations are complex, and that they should instead vote their conscience.

The electoral college is a vestige of the Constitution’s anti-democratic origins, when only elite white men who owned property could vote (see: “Taming Democracy”). Elite’s structured the Constitution to preserve elite privilege and block direct democratic control of governmental power.

Alexander Hamilton lays out the elite’s justification in Federalist #68 – portions of which raise pertinent arguments, particularly given Trump’s “foreign entanglements”. Hamilton wrote:

Nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption. These most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one querter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils. How could they better gratify this, than by raising a creature of their own to the chief magistracy of the Union? But the convention have guarded against all danger of this sort, with the most provident and judicious attention. They have not made the appointment of the President to depend on any preexisting bodies of men, who might be tampered with beforehand to prostitute their votes;

It erects “obstacles” that serve as barriers to democracy and contradicts the concept of “one man – one vote” that most Americans incorrectly believe is the legal principle that governs voting for President.

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The fact that Hillary Clinton won the popular vote by almost 3 million votes but lost the electoral college vote by a wide margin has shone a bright light on this anti-democratic Constitutional reality.

Here’s some photos that prove democracy is alive and that people fully understand the stakes: (apologies for the poor quality – no processing and portable camera)

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_dsc1314My friend Jeff Tittel (Sierra Club) urged people to honor the legacy of historical progressive social movements – abolition, women’s suffrage, workers rights, union organizing, 8 hr. wrk day, New Deal reforms, anti-war, gay rights and environment – and unite in common cause to Stop Trump.

Looks like “It’s a hard rain, gonna fall”.

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Why Is Bulls Island State Park Still Closed Almost 6 Years After A Camper Was Killed by Tree?

December 16th, 2016 No comments

Is DEP Commissioner Martin Punishing Critics of His Foolish Clear Cut Plan?

Buildings recently demolished – will Park open in 2017?

view of the Delaware from the northern tip of the island (12/14/16)

view of the Delaware from the northern tip of the island. Mouth of the D&R Canal on right (12/14/16)

On a bracing Wednesday afternoon this week, with blue skies and a stiff northwest wind blowing, we decided to take a trip up-river and see what – if anything – had gone on at Bulls Island State Park since our last visit in March 2016, see that post for photos. Those not familiar with this Bulls Island saga should  hit the links for the troubled history:

Of course we ignored the “Area Closed” signs – us dogs can’t read:

Can't you read the sign? "Area Closed"!

Can’t you read the sign? “Area Closed”!

We were immediately greeted by a red tail hawk presiding over the D&R Canal. He let us get real close, but I didn’t have an adequate camera and lens. Can you see him well camouflaged in the sycamore tree?

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We were pleased to note that the buildings were demolished and the playground almost gone. The mouldering park benches remained, however. And we did not see many more trees that fell, as predicted by DEP’s consultant (a large riverbank sycamore had fallen safely into the river)

I guess the demolition work paves the way for the park to re-open in 2017 for passive recreational use and DEP designation as a natural area.

But DEP is mum about that – at least as far as I know. The DEP Bulls Island web page has not been updated literally in years.

Surprisingly, despite this unforgivable neglect of one of NJ’s most spectacular and popular state parks, DEP Commissioner Martin has dodged accountability and not faced any tough questions.

Which leads to serious questions that should be posed to DEP Commissioner Martin by citizens, park lovers, legislators and media, including:

1) will the Park be re-opened for the 2017 season? Will the paved roads be removed? Will trails be established? What uses will be allowed?

2) What explains the more than 5 year delay in re-opening the park?

3) Will DEP designate the northern portion of the island as a “natural area”?

4) Did recent cuts by the Open Space ballot question divert funding for park restoration?

5) Where is DEP’s Park restoration plan and when will it be submitted to the D&R Canal Commission for public review and approval?

Some photos – compare to prior post photos from March:

superb riverside trail neglected

superb riverside trail neglected

site of former restrooms

site of former restrooms

massive sycamore still standing - this tree was tagged for cutting

massive sycamore still standing – this tree was tagged for cutting

playground mostly demolished and gone

playground mostly demolished and gone

site of former rest rooms

site of former rest rooms

rotting picnic benches symbols of years of neglect

rotting picnic benches symbols of years of neglect

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Christie Whitman Blames Climate Activists For Trump EPA Climate Denial

December 13th, 2016 No comments

Whitman is the queen of self serving revisionism and hypocrisy

Whitman set back EPA climate regulation for over a decade

[Update below – NPR interview]

In a Washington Post Op-Ed, Bush Administration US EPA Administrator and former NJ Governor Christie Whitman blamed climate activists for the Trump administration’s climate denial. Whitman wrote:

Pruitt has questioned “the degree and extent of global warming and its connection to the actions of mankind.” I have long said that activists have done themselves a disservice by stressing that humans have “caused” climate change. That claim to sole causation results in people like Pruitt dismissing the need to address climate change because they doubt that humans have done all of the damage. The climate has always changed — after all, we’ve had numerous ice ages without human influence — but human activity has undoubtedly exacerbated Earth’s natural trends beyond its capacity to adjust.

So the climate activists – not the energy industry – are the cause of climate denial! (in contrast to Whitman’s lightweight spin, for a serious critical analysis of climate communication, read this:

Those familiar with climate science are perfectly comfortable with the fact that one can be certain about the anthropogenic nature of changes in the climate and uncertain about what the implications of that science are, how those changes will play out. However, within the media and political spheres, uncertainties around our knowledge about the speed, distribution and magnitude of climate change impacts have been conflated with (non-existent) uncertainties about the anthropogenic nature of the observed warming trends, resulting in the ‘condensation’ of uncertainty’s many meanings and complexities into ‘one undifferentiated category’ (Shackley and Wynne, 1996: 285). […]

Other commentators claim that the extent and significance of the uncertainties are exaggerated by decision makers so as to postpone taking action that may be unpopular with the public, powerful interest groups, or both (Boykoff and Boykoff, 2004; Weingart et al., 2000). Stocking and Holstein discuss how corporate and special interests have developed a wide repertoire of methods to manufacture doubt about science that threatens their interests, most recently focusing the skills learnt from tobacco lobbying to climate change (Stocking and Holstein, 2008: 23). The fear that politicians will exaggerate uncertainty to appease powerful interest groups causes scientists to downplay the uncertainties, according to Lövbrand (2004: 453). As one prominent climate scientist noted, ‘because climate change is not just a scientific topic but also a matter of high policy, good data and thoughtful analysis may be insufficient to overcome confusion that masquerades as uncertainty caused by the clash of different interests, standards of evidence, or degrees of risk aversion/acceptance’ (Moss, 2007: 5). Bazerman (2006) asserts that there is no significant uncertainty in the climate change debate as regards the primary issue: our political elites know climate disasters are inevitable but are refusing to act – a point echoed by Dessai et al. (2010), who maintain that the uncertainties are not of sufficient magnitude to prevent policymakers planning effective adaptation strategies. (page 46)

That quoted load of self serving crap in the WaPo Op-Ed came from a woman who – in quoted comments in a NY Times story – revealed that she didn’t know the difference between climate change and depletion of the ozone layer:

Now George W. Bush takes office. His party platform calls for more research into the issue; he has waffled on it. His choice for energy secretary, Spencer Abraham, is a Michigan senator who worked hard to protect Detroit from stricter fuel-efficiency standards. And his nominee for chief of the Environmental Protection Agency, Gov. Christie Whitman of New Jersey, muddled the science of climate change with the chemistry of the ozone hole in an interview last week.

Whitman’s scientific ignorance originally was revealing in an embarrassing NY Times story:

Whitman’s statements this week left some scientists and environmental advocates perplexed, especially since her administration has been a leader among the states in addressing the problem. For example, New Jersey was the first states to set a target for reducing emissions of greenhouse gases.

But when asked to discuss her views on the science behind global warming on Tuesday, Governor Whitman responded by citing her doubts about the causes of the hole in the protective ozone layer high in the atmosphere.

She was asked: ”Global warming, what is your thought on what the state of science is and what can be done to address it?”

Mrs. Whitman said: ”Still somewhat uncertain. Clearly there’s a hole in the ozone, that has been identified. But I saw a study the other day that showed that that was closing. It’s not as clear, the cause and effect, as we would like it to be.”

When some experts on the atmosphere and pollution read a transcript of Mrs. Whitman’s statements, they said the governor had clearly confused two distinct, important global environmental problems: global warming and the ozone hole.

Today, asked to clarify her views, the governor said she might have misunderstood the question, but added that she did not think the two issues were ”not interrelated.”

Note how, when called on it, Whitman dug in instead of admitting error.

Far worse, however, was that, while EPA Administrator, Christie Whitman’s legal advisor, Bob Fabricant, wrote an ***infamous legal memo that rescinded the prior Clinton Administration’s legal opinion that greenhouse gases were regulated “pollutants” under the Clean Air Act.

[***Note: The US Supreme Court, in the the groundbreaking Massachusetts v. US case, took cognizance of and rejected the Fabricant memo’s analysis. See page 8, where the Court discusses EPA’s September 8, 2003 Order denying a petition for rulemaking. Fabricant’s memo was the foundation of the EPA denial, as noted in the Federal Register Notice: (68 Fed. Reg. 52922 – 52925)

EPA’s General Counsel, Robert E. Fabricant, reviewed his predecessors’ memorandum and statements, as well as the public comments raising legal authority issues. The General Counsel considered the text and history of the CAA in the context of other congressional actions specifically addressing global climate change and in light of the Supreme Court’s admonition in Brown & Williamson to “be guided to a degree by common sense as to the manner in which Congress is likely to delegate a policy decision of such * * * magnitude to an administrative agency.” In a memorandum to the Acting Administrator dated August 29, 2003, the General Counsel concluded that the CAA does not authorize EPA to regulate for global climate change purposes, and accordingly that CO2 and other GHGs cannot be considered “air pollutants” subject to the CAA’s regulatory provisions for any contribution they may make to global climate change

That climate denying EPA decision was not made by Dick Cheney, but by Whitman and the legal advisor she brought to Washington from her Trenton Governor’s Office to serve as her EPA Counsel. Whitman set back EPA regulation of greenhouse gases by over a decade, an historical fact that she has never been held accountable for.

Inquiring readers should hit this link for the details and links too documents:

Whitman has been criticized for her lies that the air in southern Manhattan was safe to breath following 9/11, but not for the multiple times she rolled over to political pressure from the Bush White House.

And while she was blaming climate activists for climate denial, Whitman – a former BP lobbyist – could not help shilling for her nuclear industry corporate clients – putting nuclear power on a par with energy conservation & efficiency, while cynically invoking the false pretext of jobs::

There are very practical ways that the EPA and federal government can protect our environment, as well as human health and our infrastructure. To slow the rate of climate change, we need to reduce our carbon output; thankfully, there are ways to achieve that goal that have significant economic benefits as well. Promoting energy conservation and reminding people only to use what they actually need benefits household budgets. Building nuclear plants and other clean-energy sources creates good jobs for Americans.

In another remarkable example of chutzpah and hypocrisy, Whitman very gently criticizes Pruitt’s attacks on EPA and environmental regulations (note the use of the passive voice: “has drawn criticism”. I guess this means that Pruitt has not drawn criticism by Whitman.):

President-elect Donald Trump’s nomination of Oklahoma Attorney General Scott Pruitt to head the Environmental Protection Agency has drawn criticism because of Pruitt’s public stances against the agency’s authority and his numerous lawsuits to block agency regulations in his state

That is gross hypocrisy, given NJ Gov. Christie Whitman’s anti-regulatory pro-corporate policy and attacks on NJ DEP and dismantling of that agency, a policy exposed in a Bergen Record award winning 13 part series.

For more specifics on Whitman’s environmental record, see The Nation’s profile:

Thanks to Whitman’s evisceration of state enviro regs as well as a raft of subsidies and tax cuts to developers, suburban sprawl gobbled up more open space and verdant land during her tenure than at any other period in New Jersey’s history. Moreover, she decapitated the state Department of Environmental Protection staff by 738 employees in her first three years in office, cut the remaining staff’s workweek by five hours, eliminated fines of polluters as a source of DEP revenue and made large cuts in the DEP’s budget. That’s why the New Jersey Sierra Club’s Bill Wolfe has warned that Whitman might “dismantle [federal] EPA and take it out of the enforcement business. I believe that this is precisely the policy Whitman has presided over and legitimized in New Jersey.”

Whitman was a darling of the corporate media and a certain elite faction of the “conservation community” – folks I like to call the Pontefract equestrians.

But she was no moderate on the environment or climate change.

Trump and Pruitt are the logical extension of her legacy.

[Update – 12/14/16 – Of course, NPR joined the pack mentality of the corporate press and provided Whitman with a national platform this morning. Listen and read the transcript.

Whitman is already walking back and softening her misleading claim about Pruitt’s climate denial I noted above. Now she says this in response to a point blank question from NPR:

GREENE: You know, you and others have called him a climate change denier. But, you know, my colleagues at NPR who report on science have looked very hard to find if there’s been an explicit time when he has said that. Do you know of a time when he’s actually denied climate change?

WHITMAN: Well, it’s been more in action. It’s a little bit like Donald Trump. I mean, do you believe what he says or what he does? He says he wants to talk about climate change. But the people he appoints are people who have, time and again, sued the agency or said things that would indicate that they really don’t believe that climate change is a serious issue. It’s concerning.

There is no daylight between Pruitt’s legal attack on EPA’s Clean Power Plan and Whitman legal Counsel Fabricant’s memo I cite above. In fact, Whitman’s attack on EPA’ legal authority was even more profound than Pruitt’s.

But aside from the climate denial, science, and regulatory issues, I found this exchange about the Trumps “witch hunt” at Dept. of Energy very interesting – it suggests that the career civil servants and scientists at EPA might not be loyal to Pruitt’s agenda.

Whitman said she could “understand” the Trump administration’s concerns about the loyalty of EPA employees and her remark  now that we’re in, now that we’re the ones in control? are particularly revealing in light of Whitman’s retaliation against a DEP career employee that blew the whistle on her own scientific misrepresentations:

GREENE: I want to ask you about this questionnaire that has made some news, the Trump transition team circulating a questionnaire in the Department of Energy. Part of it is asking for the names of people who have worked on climate issues and have gone to conferences. What’s your reaction to that?

WHITMAN: If I were a federal employee, I’d be very nervous about it. Why? Why would you need to know that? If they are a career civil servant that’s carrying out the policies of the incumbent administration, why do you need to know that they’ve been good civil servants for this one issue? It implies that since this is not going to be your policy, you’re going to assume that that’s what they’re going to do no matter what. And they’re going to try to undercut you. And therefore, you’re going to try to get back at them – some kind of retribution.

GREENE: I guess I – on this questionnaire, I guess I just wonder if, you know, when you were running the EPA, wouldn’t you have wanted to know what work was being done by scientists? Might you have, you know, said, like, let me put a questionnaire out there? I want to know what people have been working on. I want to know, you know, what conferences they’ve been to. Isn’t that an element of control and knowledge that you’d sort of want?

WHITMAN: No, not what conferences they went to because they have to be approved by the administration. So whatever they were going to was something that had something to do with their work that the previous administration – they were comfortable with. What I care about is what are they wanting to go to now – now that we’re in, now that we’re the ones in control? No, it never would have occurred to me to ask that question.

GREENE: You seem to be saying that the – Trump seems to be almost questioning loyalty before he comes into this new job.

WHITMAN: Yes, I can understand they’re being very concerned. Listen, most of the people that I’ve found at the Environmental Protection Agency, the vast majority of them just want to do their job. At EPA, they believe in preserving and protecting public health and the environment. And so they’ll do it whatever way you tell them to do it as long as they believe that’s what you’re after. It’s when they don’t think that that’s what you really want to do that you can start running into problems.

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The Pinelands Plan Prohibits Infrastructure In Forests For Very Good Reasons

December 12th, 2016 No comments

The Appellate Court Upheld the Integrity of the CMP and Powers of the Commission

The Courts stopped a rogue Governor and his Executive Director

Now the Commission Must Step Up and Enforce Its Own Plan

Today we try to stay out of the weeds and get back to basics, in light of the reignited debate which turns on whether two proposed gas pipelines are “consistent” with the Pinelands Comprehensive Management Plan (CMP).

The forest standards of the CMP prohibit construction of infrastructure in forests, with a very narrow and limited exception, as the recent Appellate Division found: (emphasis mine).

Public service infrastructure is, however, only permitted in the Forest Areas if “intended to primarily serve only the needs of the Pinelands.” N.J.A.C. 7:50-5.23(b)(12)

Here is the full text of the applicable standard in the CMP, which suggests broader and specific objectives of the CMP’s restrictions on infrastructure in forests: part of  NJAC 7:50-5.23 – Minimum standards governing the distribution and intensity of development and land use in Forest Areas

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12. Public service infrastructure intended to primarily serve [only] the needs of the Pinelands. Centralized waste water treatment and collection facilities shall be permitted to service the Forest Area only in accordance with N.J.A.C. 7:50-6.84(a)2. Communications cables not primarily intended to serve the needs of the Forest Area may be permitted provided that they are installed within existing developed rights of way and are installed underground or are attached to road bridges, where available, for the purpose of crossing water bodies or wetlands.

So, we get back to basics and ask a few questions:

1. Why does the CMP prohibit infrastructure in forests?

First, a little history.

There was a time when influential people looked out across the unspoiled vastness of the Pine Barrens and saw not a state treasure to be preserved but undeveloped real estate worth a potential fortune for people who had the vision to plan and invest.

In 1960, at the dawn of the commercial jet age, county planners in Ocean and Burlington made an ambitious pitch to the Port Authority of New York and New Jersey. (read the whole story, from the Asbury Park Press of June 19, 2014 : World’s largest ‘jetport’ was planned for Pine Barrens)

A hundred years before that, Philadelphia (and north jersey) sought to tap the Pines’s 17 trillion gallon aquifer for drinking water (“History of the Pinelands” – by the Commission)

1878  Joseph Wharton, a Philadelphia financier, proposes exporting Pinelands water to Philadelphia. The New Jersey Legislature blocks his efforts.

A hundred years after, in the 1970’s, in response to the Arab oil embargo, the federal government sought to expand US production of oil and gas, including plans to lease and drill off the NJ coast. Three pipelines were planned to cut through the Pinelands and deliver oil and gas to Delaware River refineries. The Pinelands Act was passed by Congress to block that (see: “Untold Pinelands History”).

The Pinelands Act was passed and the CMP developed, in part, to block massive infrastructure projects, whether resulting from pipelines to bring off shore oil and gas to Delaware River refineries; or to prevent the export of Pinelands drinking water to thirsty Philadelphia and north jersey; or to stop airports serving the NY/Philadelphia metropolitan region; or to stop major highways or railroads to serve Atlantic City and jersey shore tourists.

Infrastructure – and its location and capacity – have huge implications for and impacts on land use, forests, water resources, and ecological integrity. That’s why the Highlands Act prohibited extension of water and sewer infrastructure in the Preservation Area (see Section 34 of the Act). It is why DEP WQMP regulations limited designation of sewer service areas and extension of sewers to environmentally sensitive lands (until rolled back by the Christie regime).

Construction of infrastructure disturbs and fragments forests and threatens water resources and sensitive ecosystems.

Infrastructure directly induces development, that changes land uses, that disturb and fragment forests, and that threaten water resources and the integrity of sensitive ecosystems.

Infrastructure capacity and location produce “facts on the ground” that create economic and political pressures that undermine the CMP’s land use, water resource, and ecosystem protections. Infrastructure is expensive to build and maintain. It requires dense development. The cost to ratepayers creates incentives to lower rates by expanding to serve new development and increase users which lowers rates. Infrastructure greatly increases land values, which increase property taxes which in turn provide incentives to develop. Infrastructure greatly increases the profits of land owners and development corporations, which pressure the Commission and state and local politicians to undermine development restrictions and water resource protections of the CMP. If you build it, they will come.

2. Why does the CMP provide a narrow exemption, a standard that requires that the infrastructure isintended to primarily serve only the needs of the Pinelands.” ?

The prohibition on infrastructure in forest areas is a critical tool in protecting the Pinelands and a foundational policy of the CMP.

The requirement that any infrastructure that is permitted serve “primarily serve only the needs of the Pinelands.” is a crucial standard that provides the basis for the Commission to limit the capacity and location of any infrastructure.

It is not some minor bureaucratic red tape, but the core of the CMP.

3. Does the fact that the proposed SJG pipeline serves the BL England power plant, which is located in the federally designated Pinelands, satisfy this narrow standard?

Here is what Executive Director Wittenberg found on August 14, 2015 (which the Court determined was not authorized by law) and is now subject to public comment and review by the Commission:

Based on review of the application, including newly submitted information, materials in the record and review of prior applications, the applicant has demonstrated that the proposed gas main is consistent with the permitted use standards of the CMP. Specifically, the proposed pipeline is designed to transport gas to an existing facility, the BL England plant (built in 1963) that is located in the Pinelands.

After last Friday’s Commission meeting, in an informal conversation, the Pinelands Commission Director of Land Use, professional planner Larry Liggett, told a young man that the Commission does not look at the distribution of products of the end use of the pipeline infrastructure, but rather only at it’s location.

I was told that Liggett provided an analogy to a farm – the Commission does not consider who purchases the crops grown on a farm.

Mr. Liggett is either a completely incompetent professional planner who does not understand the distinction between land use and infrastructure policies; or he is simply mouthing the talking points given to him by South Jersey Gas’ lawyers, by way of his boss (who, like Gov. Christie, tolerates no dissent), Executive Director Wittenberg.

I am fairly certain its the latter.

Here is South Jersey Gas’ argument:

The Forest Management Area use standards of the Pinelands Comprehensive Management Plan (“CMP”) permit the construction of public service infrastructure in the Forest Area—including a natural gas pipeline—if it is “intended to primarily serve the needs of the Pinelands” in accordance with N.J.A.C. 7:50-5.23(b)12. This standard does not require an applicant to show that the public service infrastructure is “necessary” to serve the needs of the Pinelands, nor that such infrastructure “solely” serves the Pinelands. Rather, the standard requires a showing that such infrastructure “primarily serves” the Pinelands; thus, public service infrastructure that primarily serves a Pinelands use while additionally benefiting areas outside the Pinelands still conforms to the CMP because its main purpose is to serve a use within the Pinelands. Here, the main usage of the pipeline is to provide natural gas service to a Pinelands customer, BLE. This conclusion is supported by the fact that SJG’s enforceable agreement to supply gas to BLE through the pipeline requires the entire capacity of the pipeline to be dedicated to the service of BLE at least 350 days/year, or 95 percent of the time, thereby enabling the plant to provide the necessary electricity and capacity to serve the electric reliability needs of 638,000 Pinelands residents while also slashing its air pollution emissions. In fact, the pipeline will only serve customers outside the Pinelands during an emergency circumstance. For these reasons, the Project conforms fully with Forest Management Area use standards and does not require a MOA or any other waiver of the CMP, although the underlying facts supporting the need for the Project also clearly would satisfy the standards for a compelling public need.

Here is why they are wrong.

First, see above history.

Second, Mr. Liggett’s analogy to a farm is absurd. A farm is a land use, it is not infrastructure. Under the Liggett approach, a private homeowner could build a regional airport or private road or sewage treatment plant or drinking water pipeline to Philadelphia.

Third, the SJG pipeline is a “dedicated line”. It is contractually limited to exclusively serving the BL England power plant (unless emergency conditions exist). It is like a private road or private jet port.

The SJG pipeline will not provide any gas service to the Pinelands or Pinelands homes and businesses- it therefore can not possibly meet the applicable standard of the CMP, which is “to primarily serve only the needs of the Pinelands.”

If the Pinelands Commission votes to determine that the proposed pipelines are “consistent with the CMP” and “primarily serve only the needs of the Pinelands”, they will establish an absurd and dangerous new infrastructure policy and will gut the CMP’s land use scheme.

Under such an interpretation and precedent, the Commission could not stop any of the massive infrastructure projects noted above that historically led to the passage of the Pinelands Act and land use scheme under the CMP.

Finally, I must note that at a time when the Executive Branch, the Legislative branch, and the Commission itself were corrupted, the Court stood up to protect the integrity of the CMP and the powers of the Commission.

It was the Court, not the Gov. or legislative oversight or the Commission, that stood up to a rogue Executive Director and the politicization of the CMP and Commission.

But the Court did not render a decision about whether the proposed pipelines complied with the CMP, thus the Court took the first step.

The Commission now must take the next step and stand up for the integrity of the CMP and enforce their own plan.

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Pinelands Commission Signals Fast Track Approval of Controversial Pipelines

December 12th, 2016 No comments

Despite Rebuke By Court, Dirty Tricks Repeated With Impunity 

Intimidating Corpo-Union muscle flexed in support of pipeline construction jobs

Source: Michelle Brunetti, Press of Atlantic City (12/9/16)

Georgina Shanley, CURE – Wolfe in background. Source: Michelle Brunetti, Press of Atlantic City (12/9/16)

Unfortunately, it is not possible to respect a Commission that defies law, refuses to comply fully with an opinion of the Court, allows the Gov.’s Office and Executive Director to walk all over them, and ignores the public by rubber stamping a corrupt political deal that undermines the integrity of the Commission, violates the CMP, and accelerates destruction of the climate of the planet.

I immediately knew it was bad.

I arrived a half hour early for the Pinelands Commission’s regularly scheduled meeting on Friday (12/9/16), but already the parking lot and lobby were jammed and a long line of corpo-union guys snaked out the door.

I got in line behind the $600 suit lawyer and lobbyist for BL England power plant owner RC Capital, John Valeri, former Counsel in Gov. Whitman’s Office and of the notorious law firm Wolff & Samson.

Last Friday (12/9/16) was the first meeting of the Pinelands Commission after a huge legal victory for environmental opponents of the South Jersey Gas (SJG) pipeline through the Pinelands.

It was widely anticipated that the Commission would have an in depth public discussion about whether to appeal the Court’s decision; how to comply with the Court’s decision; and how to control their rogue Executive Director.

That did not happen – just the opposite. (read Press of Atlantic City’s coverage)

Last month, on Nov. 7, 2016 the NJ Appellate Division agreed with a lawsuit filed by environmental groups and ruled that the Executive Director of the Pinelands Commission had violated law and illegally unilaterally approved the controversial South Jersey Gas pipeline. (read the opinion)

Upholding the integrity of the Pinelands Comprehensive Management Plan (CMP) and the power of the Commission, in strong language the Court found that Executive Director Wittenberg had illegally usurped the powers of the Commission.

In a strong rebuke to Gov. Christie’s strong armed tactics exercised through his appointed puppet, Executive Director Wittenberg, the Court stressed the need for the Commission to make the decision:

the CMP does not confer on the Executive Director or the Commission’s staff the authority to render final decisions on CMP compliance in these circumstances. There also is no provision in the Pinelands Act that confers upon the Executive Director authority to render a final decision for the Commission in the coordinated permitting process.

Here, the Commission retains final decision-making authority as to whether SJG’s proposed pipeline is consistent with the minimum standards of CMP. Indeed, as we have pointed out, the CMP states, “the Commission bears the ultimate responsibility for implementing and enforcing the provisions” of the Pinelands Act and the CMP. N.J.A.C. 7:50-1.11. The Commission therefore retains “ultimate responsibility” under the CMP to review the proposed project and render a final decision on CMP compliance.(@ p.22)

The Court rebuked the BPU and Pinelands Commission for allowing the Executive Director to usurp their powers:

We note that, in this matter, the Board did not make a factual finding on the critical issue of whether SJG’s pipeline is “intended to primarily serve only the needs of the Pinelands” and therefore a permitted use in the Forest Area. The Board merely relied upon Wittenberg’s decision on this issue, and on that basis, its approval of SJG’s MLUL petition complied with N.J.S.A. 13:18A- 10(c).

The Court noted the importance of an open public process and the need for an opportunity for the public to comment before the Commission made the decision.

The Court remanded the SJG case back to the Commission and ordered the Commission to conduct a public process and determine whether additional evidence and public hearings were required , whether to refer the matter to the Office of Administrative law, and to determine if the proposed pipeline violated the Comprehensive Management Plan (CMP):

The Commission shall determine whether to review the Executive Director’s decision based on the factual record developed before the Board, or whether the parties should be permitted to present additional evidence on the question of whether the pipeline is consistent with the minimum standards of the CMP.

The Commission also shall determine whether to refer the matter for a hearing before an Administrative Law Judge (ALJ).

Pipeline opponents – including myself – had claimed that Wittenberg’s decision was NOT based on the facts and the CMP, but rather was dictated by Gov. Christie’s Office and written by lawyers for SJG. Wittenberg over-rode and reversed her professional staff’s prior finding that the SJG pipeline was inconsistent with the CMP. The fact that the Court directed the Commission to consider whether Wittenberg’s decision was based on the “factual record” lends strong credence to these criticisms of political intervention and corrupt decision-making by Wittenberg.

Given the strong rebuke by the Court in finding that the staff had illegally usurped the Commission’s powers and essentially hijacked a public process, it is remarkable how the Commission responded to the Court’s decision.

The Commission:

  • Failed to put the matter on the meeting agenda
  • Failed to mention the issue during the Executive Director’s public briefing (monthly Report)
  • secretly discussed the matter in Executive Session
  • invoked attorney – client privilege to shield those discussions from the public or open public records laws;
  • approved, with [***very little] discussion or public comment, two Resolutions that formalized the public process to respond to the Court’s remand. The Resolutions were drafted before the hearing, but not made available to Commissioners or the public for review prior to the vote.

Instead of a public discussion, Gov. Christie’s installed Chairman Sean Earlen (R-Burlington) blindsided and strong armed his fellow Commissioners and the public and strong armed a fast track approval process.

Remarkably, Earlen and Gov. Christie’s Deputy Attorney General invoked exemptions in the Open Public Meetings Act for discussion of “litigation” and invoked Attorney Client privilege as justification to adjourn to a secret Executive Session to discuss how to respond to the Court’s decision and develop a plan going forward.

Here is the text of the Resolution.

Here is the public notice and information on public comment and the public hearing:

Pursuant to Pinelands Commission Resolution PC-4-16-42, the Pinelands Commission is providing notice of the public’s opportunity to provide comment concerning the Commission staff’s determination (i.e. the August 14, 2015 Certificate of Filing; the August 21, 2015 letter to Paul Flanagan, Executive Director, Board of Public Utilities enclosing the Certificate of Filing and the December 14, 2015 letter to Paul Flanagan, Executive Director, Board of Public Utilities) to that the portion of the 22-mile, 24-inch, natural gas pipeline proposed by the South Jersey Gas Company (SJG) to be constructed within the State designated Pinelands Area (Pinelands Application No. 2012-0056.001) is consistent with the standards of the Pinelands Comprehensive Management Plan.

The Commission contradicted the explicit remand mandate of the Court.

The Court directed the Commission to  allow the public to comment on the issue of whether the SJG application, as amended is consistent with the CMP:

For the reasons that follow, we remand the matter to the Commission for further proceedings and a final decision on whether SJG’s proposed pipeline is consistent with the minimum standards of the CMP.  (decision at p.3)

Instead, the Commission’s public notice is on Executive Director Wittenberg’s determination that the proposed pipeline is consistent with the CMP, the very illegal and unauthorized determination that the Court rebuked Wittenberg for. 

In perhaps the only good news of the day, the Commission agreed that the COurt’s opinion would be precedent to challenge the proposed “Southern Reliability Link” (SRL) proposed pipeline through the Pinelands that Wittenberg also illegally approved. But effectively, all that really does is avoid the delay of litigation and accelerate the Commission’s attempts to ram new approvals through.

At the conclusion of the Commission’s hearing on Friday, Vice-Chairman Galletta admonished the public to conduct themselves with “respect” for the Commission and staff going forward.

Unfortunately, it is not possible to respect a Commission that defies law, the Courts, and ignores the public by rubber stamping corrupt political deals that undermine the integrity of the Commission, the CMP, and the climate of the planet.

*** correction – 12/16/16

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