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Drafting MOA, with No Policy Guidelines or Science Based Standards – Behind Closed Doors

Commission Remains in Denial and Dragging Its Feet on Addressing Climate Change Issues

Opposition Growing as Critical December “Go/No Go” Decision Looms

Dozens of opponents of the South Jersey Gas Co. Pipeline jammed a meeting of the Pinelands Commission’s Policy & Implementation Committee  yesterday to voice opposition to what one activist dubbed “The Christie-Norcross Pipeline”.

Signaling support for the project, Commission Chairman Lohbauer recently directed staff to prepare a “Memorandum of Agreement” (MOA) with the Board of Public Utilities (BPU) that would allow the pipeline project to proceed, despite the fact that it violates the forest protection standards of the Pinelands Comprehensive Management Plan (CMP).

The economic feasibility of the pipeline project is related to the re-powering of the BL England plant, which is under a critical “go/no go” decision by the end of December under a DEP enforcement Order. Similarly, the viability of the BL England plant re-powering is dependent upon approval of the pipeline. It is unlikely that the BL England plant or the pipeline would get financed under regulatory risk. (see this briefing by Ms. Roth on June 28, 2013 minutes)

 There are rapidly approaching deadlines including RC Cape May Holdings determination by May 1, 2014 that it will indeed repower the plant or face complete cessation of operations of the coal fired units. Unless repowered, the Amended Administrative Consent Order (AACO) with the DEP requires the complete shut down of the 2 coal fired units by September 30, 2013 and May 1, 2014, respectively. 

Both projects have received all other DEP and BPU approvals – so the Commission will decide the fate of this $500 million regional fossil infrastructure deal. And it looks like SJG and BL England are demanding the Commission’s approval before the end of December, so we are rapidly approaching a critical juncture.

Under Pinelands rules, a MOA is limited to a “public agency’s development plans”.

The growing opposition has denounced the MOA as an outrageous and illegal abuse, because the pipeline is a private corporate project and BPU is a regulatory agency, not a “development agency”. It was interesting to note that the growing coalition opposing the project now includes the Philadelphia chapter of Move On.Org.

First to testify was Sierra Club Director Jeff Tittel.

Tittel noted that as he spoke, Gov. Christie and South Jersey political boss Sen. President Sweeney were holding a groundbreaking ceremony for a new 700 megawatt natural gas plant in Woodbridge. Gov. Christie is supporting 3 new gas plants with a capacity of about 2,000 megawatts, not including the BL England plant that would be served by the SJG pipeline.

Tittel said that the BL England plant and pipeline were not needed, because  there is a glut of power in NJ. A major new Susquehanna Roseland power line through the Delaware Watergap will import even more dirty coal power.  All this new power supply is coming at a time when NJ’s electric energy demand is falling, demand management programs are underfunded,  1,100 megawatts of solar has come on line, 1,100  megawatts of offshore wind are planned, and there is a huge untapped potential for more energy efficiency, solar, and wind power.

Tittel then warned the Commission that a MOA with BPU to cover for a private pipeline project would open pandora’s box, and set a dangerous precedent. He ran through a list of possible abuses of the MOA mechanisms with other NJ government regulatory agencies – suggesting that the Casino Control Commission could partner with Trump and build a casino in the Pines, or the Sports and Expostion Authority could execute a MOA to build another Xandu in the Pines.

A MOA is an agreement that must show that the project can proceed and provide an “equivalent level of protection” through some kind of “offsets” that can mitigate negative impacts on the Pinelands.

As I’ve written, the Commission conceded that it lacks any technical standards, methods, or Guidelines about what constitutes an “equivalent” level of protection and what a scientifically defensible “off-set” would be. This can only lead to wholesale bargaining and a corrupt cash deal, like the Commission previously did in approving a power line along the GS Parkway.

A former Pinelands Commissioner  chastised the Commission for even considering a MOA to circumvent the CMP.

I testified again to suggest that a MOA was premature. I again urged the Commission to get independent expert support; to develop standards and methods for a “equivalent level of protection” “offset” under a MOA; and to include climate change impacts within the scope of its review.

I then noted that Mr. Tittel’s energy planning and infrastructure comments were well taken and should have been addressed by the Commission during the BPU review of the project. BPU issued its approval back on June 21, 2013.

Under NJ’s energy deregulation scheme, the BPU can no longer require a “demonstration of need”. Therefore, critical energy infrastructure capacity and planning issue are made solely by corporations based on profits, not need.

The Pinelands Commission is not bound by this deregulatory scheme and could address these critical infrastructure planning concerns under its CMP planning power.

However, instead of protecting the Pinelands and raising these critical issues when they were under BPU review, the Commission Director and lawyer were following orders from Gov. Christie’s Office and supporting the project.

In fact, with no Commission policy direction at the time – at least publicly expressed like Chairman Lohbauer recently did in directing staff to prepare a MOA – Director Wittenberg and Counselor Roth were quietly supporting and facilitating the project, in a way designed to keep critical BPU and DEP approvals below the radar before the kind of public awareness and opposition we now see could form and have an impact.

In fact, according to the Commission’s April 12, 2013 minutes:

Notice how Ms. Roth failed to note that BPU review was under way and that it was a critical time to put any Commission concerns on the table.

Note how there is no heads up to the public that BPU will be holding public hearings.

Instead, Roth quietly characterizes the project as a done deal to be the subject of a negotiated MOA.

Roth and Wittenberg were just following orders from the Gov.’s Office and negotiating with BPU, DEP, and SJG behind closed doors and under the public and media radar.

And they were doing that intentionally to avoid the public opposition that we now see.

Just look at the coordinated chronology of 3 state agencies: 1) after the Commission’s staff sent the green light MOA signal in April, 2) DEP issued a revised ACO that promoted re-powering BL England in may, and 3) BPU issued the pipeline approval in June.

All of this staff agency support was coordinated by the Governor’s Office – thus the apt new name for the project as “The Christie Norcross Pipeline”.

Like I said, it’s Chinatown.