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Plan Was Quietly Under Review Since April 2012 – Nature of Review Process Suggests “Agency Capture”

[Updates below in text]

An overflow crowd spilled outside the packed hearing room today, as Pinelands staff presented the controversial South Jersey Gas Co. natural gas pipeline through the Pinelands to re-power the BL England coal/oil power plant at Beesley’s Point. I will provide a link to that presentation when it’s posted on Commission website (here it is).

The presentation was to the Policy and Implementation Committee – the proposed project is not yet before the full Commission for formal review. Accordingly, there is still time to make changes to improve the review process, as I suggested today (see below).

Staff outlined the review process to date, provided a brief overview of the project and its impacts, and described its current status.

The staff briefing said nothing about future review plans going forward, a critical omission.

The project has been designated an “inconsistent certificate of filing” because it conflicts with the Pinelands Comprehensive Management Plan (CMP) and regulations.

Curiously, while staff did not present the going forward review options for such an “inconsistent” project, I assume that there are two options at this point: a) denial; or b) approval via a “Memorandum of Agreement” (MOA) based upon a finding of “equivalent” protection.

The term “equivalence” is bureaucratic regulatory code for a dirty deal.

As I’ve suggested, the project – politically – is a done deal.

It has the support of the Governor – BPU bluntly emphasized that the project was approved because it implemented Gov. Christie’s Energy master Plan. The project has received all other permits and approvals (all made with little public input). The Commission is last in line and under enormous political pressure to approve the project. The project can not proceed without Commission approval.

There are no regulatory standards, scientific methods, or technical criteria or methods to define, measure, or determine what an  “equivalent level of protection” is, so there is enormous – virtually unconfined – discretion by the staff and Commission in making this call.

The existence of unconfined discretion, coupled with enormous political and economic pressure to approve what amounts to a $500 million project, are a formula for abuse.

When discretion, politics, and money combine, they tend to produce a corrupt review process, whereby professionals lack a defensible legal and scientific basis to say “NO”, while they are pressured to find a way to approve the project, offset by some kind of “equivalent” mitigation package that the politicians can hold out as “equivalent protection” (expect a money payoff and land donation).

Almost everything I heard today during the staff briefing reinforced that perception of a corrupt process – here are just a few examples of the red flags that kept popping up:

1) There was a “pre-application conference” way back in April 2012.

The pre-application” process is inherently prone to abuse, especially on a major project.

When the public first learns of the project, most big decisions have already been made:  there is frequently a conceptual approval issued, expectations are formed,  and the broad parameters have negotiated by staff long before the public even gets wind of the project.

In this case, the public was kept in the dark for over a year, while staff had a series of private meetings (and I assume phone calls) regarding the project. Several what I assume to be deficiency letters and correspondence were mentioned. I assume these letters and emails are public records, but I doubt the pre-app meeting and phone call notes are. The project were deemed complete in July 2013.

During this 14 month period, it appears that staff did more than review the merits, and basically acted to guide and facilitate review and approval of the project.

I say this because one person testified read from one of the letters, which indicated that a MOA would be the vehicle to approve the project. Discussion of a MOA is a bright green light to the applicant.

The decision to proceed with a MOA is NOT a staff level decision. It is not even a Director Wittenberg decision.

The decision to pursue a MOA is a policy call that is made by the Commission on the record with public involvement.

The fact that staff were contemplating a MOA over a year ago is inappropriate, at best.

[Update #1 – there is disagreement on this point – see the Commission’s 12 steps to crafting a MOA. h/t TL]

[Update #2 – In my July 27 post, I criticized Counselor Roth for equivocation on the MOA issue, when BPU Order had included a MOA.  But, upon further research, it turns out that the MOA issue is even murkier and more problematic. Check out this from the April 12, 2013 minutes – The April 12, 2013 P&I minutes state that Roth expected a MOA “this spring”.

2) The Commission lacks independent subject matter expertise on staff – and is not seeking external expert contractor support

Lacking necessary expertise, staff therefore had to rely exclusively on the applicant’s engineers for numerous technical judgements and evaluations, including critical factors like engineering, geotechnical, pipeline safety, and other  issues.

In other cases, staff relied on BPU or DEP reviews.

The fact that the staff presentation so casually alluded to these critical delegations of their review to the applicant’s engineers is deeply troubling.

3) South Jersey Gas is driving the review process.

At one point in the presentation, staff indicated that a decision was made, by South Jersey Gas, not Pinelands staff, to eliminate an alternative route that required Horizontal Directional Drilling (HDD) under Great Egg Harbor. Staff said this option was eliminated due to environmental impacts and risks of “drilling fluid escape”.

When that critical fact went unexamined by the Commissioners, I interrupted the presentation to ask for an explanation of “drilling fluid escape”. What is it, what are the risks, and why, if it is too risky for Great Egg, is it OK for rivers, streams, wetlands, and lakes in the Pinelands?

This being the Commissioner’s briefing portion of the meeting, I correctly was ruled out of order by Chairman Lohbaur.

But shortly after, my rude gambit proved successful, as a few questions were asked by Commissioners. As the questions mounted, and staff was unable to answer them satisfactorily, Director Weinberg intervene to shut down that line of inquiry.

Instead, Weinberg said that staff should convey these questions to SJG engineers for response.

Weinberg is not supporting her own staff or defending the independence and integrity of the staff or the Commission.

Again, the fact that there seems to be no concern – or outright contempt for – a lack of independent expert review and the de facto delegation of that function and public responsibility to private SJG engineers – who have a gross conflict of interest – is simply stunning and a major deficiency in the review process.

4) Staff seem “captured” – appearance of a lack of rigor

One Commissioner, and the crowd, seemed incredulous when staff indicated that there were no impacts on threatened or endangered species – none – because none were present in the area of the chosen pipeline route.

When questioned how that was possible, staff indicated that the “proposed development area” of the project was an 8-10 foot wide pipeline corridor.

Are you kidding me? How is it possible to build a 22 mile pipeline with only an 8-10 foot wide disturbance? Are they using helicopters? What about subsurface issues? What about impacts beyond that narrow “proposed development area”?

The fact that staff seemed to have no problem with that absurd narrowing in the scope of the project again was a troubling indicator of a lack of objectivity and rigorous review, consistent with the “agency capture” model of bureaucratic decsion-making.

Suggestions:

I recommended that the Commission hire independent subject matter experts on the engineering, geotechnical, safety, and other important issues. Just look at this photo  and powerpoint SJG did on “resiliency strategies”.

I suggested that they needed to consider the capacity of the high pressure (700 psi) 24 inch pipeline, whether that infrastructure had land use implications and would induce development pressures, and whether concerns about natural gas exports are possible.

I suggested that look at failures in North Jersey pipelines as examples of poor design, engineering, and construction practices. (like sinkholes and severe erosion and failure to comply with storm water and restoration requirements).

I forgot to mention the SJG “resilience” presentation and whether the touted “safety” “shut off valves” would work better than they did during the massive fires in the wake of Sandy.

Did SJG not have the capability to shut off the gas? Or was that just an oversight? Lots of burned out homeowners would like to know.

I also forgot to mention the sham rationale about “redundancy” and “reliability”.

Some people argued that a benefit of the project is to keep the lights on after another major storm event.

That is a crock of shit, because it was a manufactured pretext – this whole project was designed long before Sandy struck.

And if redundancy and reliability were such important issues for South Jersey, why didn’t BPU mandate expansion of pipeline network years ago?

There was lots of great testimony today – especially about a prior denial and OAL hearing to contest that denial. So, SJG knew all about the regulatory risks they were running.

As I said today, this project needs a file review, so I’ll close now- maybe the Commission can post a summary or transcript.

One last word: the politics are being ramped up – proponents had their union and local official puppets turned out. One claimed it was all about “balance” – but it’s really all about money.

Christie’s Claim Conflicts with His Responsibilities Under State of Emergency Delaration

Gov. Claims Inconsistent With DEP Commissioner Testimony

Gov. Is The Decider in Chain of Command Under NJ’s Emergency Operations Plan & Hazard Mitigation Plan

I’d like to start off by framing out how we operate in an emergency response point of view from the State. So, I’d like to take a few minutes to talk about that and then the scope of responsibilities DEP has, that fits into an overall comprehensive plan.

First off, the State operates during emergencies based on planning – significant planning that occurs at the state level.

Each department operates with its own plan and ties into an overall unified command which is operated and coordinated by  the State Police.

All the major decisions, critical decisions, are made by the Governor. […]

We do not operate in silos as an organization – we operate clearly together as a team.

The Cabinet members sit with the Governor, helping to inform him on those decisions.  ~~~ DEP Commissioner Bob Martin. Testimony to Senate Budget and Appropriations Committee. December 3, 2012 – watch it, begins at time 1 hour 47 minutes

A Bergen Record story today quotes Gov. Christie saying he had no knowledge of NJ Transit’s “storm plan” prior to Sandy:

Christie: No knowledge of NJ Transit’s hurricane plan before Sandy hit:

Governor Christie said Wednesday that he had no idea NJ Transit had a plan in place months before Superstorm Sandy hit last year that called for storing commuter trains in upland sites — which the transit agency didn’t do — resulting in more than $120 million in damage to locomotives and railcars that were left in low-lying yards in Kearny and Hoboken. […]

“I did not have a specific, personal knowledge of this plan before the storm and, as almost every department of government has a plan, I’m sure that the people of the state will not be shocked to know that I haven’t read every one of them,” Christie said. “So I didn’t know about it.”

I find this hard to believe. If true, it reveals gross negligence and incompetence.

The Governor is evading his fundamental responsibility under NJ law.

NJ’s overall framework for hazard mitigation and emergency planning and response was established 20 years ago, under Gov. Florio’s Executive Order #115.

That Order  created the State Hazard Mitigation Team (SHMT).  The SHMT is chaired by a representative of the Governor’s Office.   The Governor approves and supervises the implementation of the State Emergency Operations Plan. 

Governor Christie’s convenient “know nothing” posture directly contradicts his widespread perception as a hands on, take charge, competent leader in the response to Sandy.

More importantly, his statement conflicts with his legal powers and responsibilities and role under the following:

• his own State of Emergency Declaration, which states

• the NJ Hazard Mitigation Plan;

Updated Plan: Refers to the New Jersey State Hazard Mitigation Plan approved by FEMA and adopted by the Governor of the State on a three (3) year cycle. The original State Hazard Mitigation Plan was adopted in 2005 and subsequently updated in 2008 and 2011. The next scheduled Updated Plan is April 2014.

• the testimony of DEP Commissioner Bob Martin excerpted above regarding the Gov.’s role in emergency response.

If true, Governor Christie has revealed massive incompetence in his preparation for and response to Sandy.

NJ Transit operates what is defined as “critical infrastructure” under those plans – like water supply and sewer systems that also failed due to poor planning and preparation. Decisions about “critical infrastructure” are major decision made by the Governor.

How is it possible for the Governor of a highly developed and vulnerable coastal state – even in the wake of the major storm Irene – to have no knowledge of or involvement in planning for and responding to major storms, sea level rise, and climate change?

How could Gov. Christie have allowed the April 2012 Hazard Mitigation Plan Update to NOT consider climate change and lessons from recent disasters and major storms like Irene, see this:

Technical information on the four (4) most recent disasters and climate change issues are still being reviewed and are not included in this April 2012 NJ Hazard Plan update.  ~~~ NJ Hazard Mitigation Plan (April 2012)

If false, its just another lie to deflect responsibility and cover up his own incompetence.

NJ Only State in Northeast without a Climate Change Adaptation Plan

NJ State Police Ill-Suited for Climate Change Risks & Adaptation Plans

Technical information on the four (4) most recent disasters and climate change issues are still being reviewed and are not included in this April 2012 NJ Hazard Plan update.  ~~~ NJ Hazard Mitigation Plan (April 2012)

[Important Update below]

The Bergen Record has an important story today that alleged that NJ Transit did not follow its own “storm plan” – but unfortunately, the lead is buried in the 3rd paragraph:

NJ Transit did not follow its own storm plan

Newly released internal documents show NJ Transit had a plan in place for moving railcars and locomotives to higher ground as Superstorm Sandy approached, raising further questions about why the agency left hundreds of pieces of equipment in low-lying locations in the storm’s path, resulting in millions of dollars in damage. […]

The NJ Transit document stands in stark contrast to the more detailed hurricane plan prepared by New York’s Metropolitan Transit Authority, which, taking into account concerns about global warming, enabled the transit system to move the vast majority of its trains to higher ground, saving all but 11 of its rail­cars from flood damage.

BINGO!

So why doesn’t NJ Transit’s plan take into account global warming?

Do other important state plans consider the risks and impacts of global warming?

Here’s the real story.

NJ Transit’s repeated attempts to redact public documents to cover up and block media access to prevent the disclosure of embarrassing information is an outrageous violation of the NJ Open Public Records Act and a gross abuse that someone should be held accountable and fired for.

NJ Transit redacted the entire content of their storm plan for 2 reasons:

1) to cover up their mismanagement (i.e. they didn’t follow their own plan, which included alternate safe storage sites that were available); and

2) to avoid the embarrassing disclosure that he substance of the “plan” is a joke and it does not include consideration of climate change.

NJ Transit’s so called “3 page plan” was not a plan at all.

But, NJ Transit is not alone among State and regional infrastructure agencies for lacking plans.

NJ DEP lacked a water supply plan and local sewer authorities lacked emergency plans and back up power – both are addressed under NJ DEP permit rules under the Clean Water Act.

But the larger issue – and framework within which all these various plans exist – is climate change adaptation planning to consider extreme weather events.

Many states have climate adaptation plans – but not NJ.

NJ addresses all theses unique climate related risks under the State Hazard Mitigation Plan.

That plan is developed by the State Office of Emergency Management security and safety experts, housed within a police institutional setting. They  lack adequate knowledge, training, and experience on the science and other aspects of climate change related “hazards”.

So LOOK again at this caveat on the banner page of that Hazard Mitigation Plan:

Czar Oversees Sandy Recovery and Use of Billions of Taxpayer Dollars

Decisions Without A Plan, Policy, Transparency, or Public Involvement

Subpoena To Compel Testimony Now Warranted

In another example of the Christie Administration’s arrogance and abuse of Executive power, Gov. Christie’ Rebuild Czar refused a request to testify before a special joint hearing by the Senate and Assembly Environment Committees today in Atlantic City.

The joint Committee’s stated purpose for the hearing was “to hear testimony on the progress of Hurricane Sandy recovery efforts.”

In his introductory remarks, Senate Environment Committee Chair Bob Smith stated that the Committees requested testimony from Ferzan, but that he “not indicated a willingness to come” (sic).

Ferzan oversees the entire NJ  Sandy Recovery effort – including NJ’s plans to use the billions in dollars appropriated by Congress. The priorities for and use of those funds involve critical policy decisions that impact thousands of people’s lives, their housing, roads, schools, parks, libraries, and natural environment.

Ferzan’s decisions effect the land use and economic future of the NJ shore.

Ferzan wields huge power because, in addition to controlling the money, he operates as a super Cabinet Official, interjecting in major regulatory, infrastructure and budget decisions made by  all State Agencies, including Departments of Community Affairs, Transportation and Environmental Protection. He also acts as liaison to the legislature, local governments, and the private sector.

Ferzan is accountable solely to Governor Christie – meaning that all this power has been consolidated in the Governor.

Ferzan’s “Czar”  position, his Office, his role, his responsibilities, and the critical decisions he makes – involving billions of taxpayer dollars and the future of the people and the landscape of the entire NJ shore –  have not been authorized by the Legislature.

His deliberations – who he meets with, what he discusses, and the policy and factual bases for his decisions – are exempt from the NJ Open Public Records Act (OPRA) – under the “executive” and “deliberative” privilege exemptions.

He is quite literally a one man government operation with a huge budget and effective legislative, executive and judicial powers.

He operates in an accountability free zone.

This is not democracy or the republican form of representative government established under our State and federal Constitutions.

Emotionally powerful public testimony revealed the implications of this non-transparent, accountability free abuse of power.

Many people, whose lives have been impacted and in some cases destroyed by Sandy, are completely shut out of and have no access to information upon which State government decisions are made or any effective ability to influence those decisions.

Now, with Ferzan’s refusal to testify before the Legislature, our democratically elected Legislators have no effective oversight role either.

This is simply wrong and scandalous.

The Legislature has to assert it’s power – not rely on press stunts and constituent letters as suggested by legislators in response to testimony today about massive policy flaws and government neglect.

Those legislative powers include passing laws that set policy for the Governor to enforce; the power of the purse to provide funds to implement the policy; and the power of oversight to assure that the Governor is implementing the will and intent of the legislature.

Given the intransigence, lack of transparency, consolidation of power by the Administration, and Ferzan’s refusal to testify, a first step in flexing those legislative muscles is use of the subpoena power to compel testimony so that the Legislature can effectively conduct oversight.

Mr. Ferzan – as well as DCA, DOT, and DEP Commissioners – should be subpoenaed to testify.

The Legislature should enact legislation that governs the operations of Mr. Ferzan’s entire Sandy recovery efforts.

Because, quite clearly, current law is not adequate to address the major and continuing challenges of recovery and ensuring that we do not repeat the mistakes of the past and recreate the same patterns of land use that created the vulnerability that led to the devastation Sandy wreaked.

Of course, the Legislature could just bypass Mr. Ferzan and the Governor entirely by creating a Coastal Commission to comprehensively and rationally plan for and address the multitude of challenges Sandy created.

DEP Report says NJ Shore “Highly Vulnerable” To Storms 

NJ Is Not “Stronger Than The Storm”

There’s been a lot of controversy and press coverage about Gov. Christie’s $25 million taxpayer funded shore ad campaign, especialy the “Stronger than the storm” video (see:  Christie stands by ad contract, rejects criticism of cost).

Some correctly attack the governor as a hypocrite for spending $2.2 million of taxpayer money to promote himself.

Others, also quite correctly, criticize the Gov.’s ego and express anger watching his self promotion while they continue to suffer and live in trailers or shelters or temporary housing (see: Christie’s ego may send him into a pretty strong storm)

Remarkably, while correct, all that criticism misses the most essential and basic point: the core claim is factually false.

Worse, it’s a deadly lie.

DEP’s federally approved  2011 – 2015 Coastal Assessment Report states the science quite clearly:

Many parts of New Jersey’s densely populated coast are highly vulnerable to the effects of flooding, storm surge, episodic erosion, chronic erosion, sea level rise, extra-tropical, tropical storms, and hurricanes.  

But the Macho Man in the Front Office denies that science and insists NJ is NOT “highly vulnerable” to coastal storms but is “stronger than the storm“.

Why is the Governor lying to millions of people every day in those ads?

Why is no one calling him out on that lie?

But the damage from this lie is not just a false slogan in an ad campaign – the Governor’s warped views are having direct impacts on policy, (lack of) DEP regulation, and the promotion of Sandy rebuilding.

As Chris Satulo at Newsworks reports ( to his credit, he is the only reporter I’ve read thus far to even mention this critical point):

To still others, the idea that the state has proven itself “stronger” than the power of sea level rise and hurricanes is not just silly; it’s dangerous.

Such bravado, they believe, gets in the way of a needed rethinking of how we build and live at the Shore.

That is exactly what we should be focusing on. Policy needs to be based on science, not ad campaign slogans.

The Gov. is recklessly promoting rebuilding in hazardous locations. Professor Pilkey, Professor Emeritus of Earth and Ocean Sciences, Nicholas School of the Environment, at Duke University has called this “madness”.

The DEP deregulated the rebuilding of public infrastructure wiped out by Sandy.[in the same vulnerable locations].

DEP has ignored and failed to implement numerous warnings on shore vulnerability (also see: The Deafness Before the Storm).

According to Georgetown University Climate Center, NJ is the only northeastern state without a climate change adaptation plan – a serious deficiency noted in a recent federal Report.

The Gov. has dismissed climate change, sea level rise and more frequent and intense storms as an “esoteric issue” he has no time to consider and that people “don’t give a damn about”.

Well, we have news for you Gov. Christie – science trumps politics – and ad campaign slogans – every time.

NJ is highly vulnerable to coastal storms – climate change is greatly magnifying those risks. Prudent public policy calls for “strategic adjustment”, not “rebuild madness”.

It’s time the Governor start telling that truth to the people of NJ and taking steps to reduce those vulnerabilities NOW.