Pinelands Commission Is Transparent – Transparently Corrupt, Cynical, and Cowardly

I’m not sure why you consider the publishing of this document to be cynical; I believe our process is quite transparent, and consistent with our MOA procedure. ~~~ Pinelands Commission Chairman, Mark Lohbauer  11/28/13 personal email to the author’s 11/27/13 objection to the MOA review procedure

“I honestly think the agency is selling its soul for $8 million – It’s late afternoon, before Thanksgiving, and this is the first time we’ve seen any of this language. So everybody is supposed to be prepared a week from Monday to say their final words on this topic?” ~~~ Carleton Montgomery, executive director of the Pinelands Preservation Alliance quoted in Press of Atlantic City, Nov. 27, 13

cyn – i – cal   adj:

• selfishly or callously calculating
• selfish and dishonest in a way that shows no concern about treating other people fairly
• contemptuous, mocking

I hope everyone had a nice Thanksgiving and didn’t allow the Pinelands Commission’s Wednesday afternoon release of the draft Memorandum of Agreement (MOA) with the Board of Public Utilities (BPU) to interfere with the digestion and family moments.

Aside from the big FUCK YOU to the public implied by the extraordinary timing of the public release – far beyond the well known holiday weekend news dump –  i.e. the 3 minute comment period; the accelerated review procedure (1 hearing on December 9); and the 5 day post hearing written comment period deadline (December 14);  – there are many new major substantive issues now on the table.

Please note, given the large number of individuals that are anticipated to attend and present comment at the public hearing, all speakers will be limited to 3 minutes.

As I predicted, the BL England repowering December 31 go/no go deadline is driving the Commission’s review process. It is obvious that Gov. Christie’s puppet – Pinelands Commission Executive Director Wittenberg – is calling the shots and twisting arms of the Commissioners.

I can specifically recall raising the BL England deadline with the Commission and warning ED Wittenberg that if the Commission were to wait until after the Gubernatorial election and then ram through public hearings in December then their credibility would be destroyed. Well, that’s exactly what happened here.

But, as I feared, instead of listening to the public testimony thus far as a foundation to reject the application, the Commission and South Jersey Gas Co. cynically have used the public testimony at a series of informal public meetings since June to flag major flaws in the application and review process, and have used the draft MOA to correct those flaws.

Essentially, we tipped our hand and the lawyers for SJG and the Christie Administration used it against us. I’ve seen this cynical abuse numerous times. The public is in a catch 22 – damned if they do and damned if they don’t. If you do raise a fatal flaw, the corporations and their captured bureaucrats fix it. If you don’t raise the issue, you have no ability to raise it in court when you sue to stop the project.

There are several examples where this abuse is very obvious –

To document that abuse, all you need to do is compare the draft MOA with Commission staff’s August 28, 2013 presentation of the SJG project and staff review  and the South Jersey Gas Co. September 27, 2013 presentation of the project to the Commission.

There are many substantive documents and issues discussed in the MOA that were never presented to the public or publicly discussed by Commission staff or SJG.

Why does the draft MOA – the culmination of an 18 month review process that began in April 2012 – include new issues and documents that were never publicly presented by staff, or the applicant SJG or discussed by Commissioners?

Some of those issues include major topics, like 1) demonstration of need for the pipeline project; 2) the BL England plant repowering issues;  3) the need for the BL England plant; 4) a POWERGEM energy model allegedly reviewed by staff; 5) the recommendations of PJM regional grid operator;  6) the reliability of SJG system (some of this was discussed); 7) BPU jurisdiction and role; 8. basis for an “equivalent level of protection”; and 9) a DEP air quality modeling analysis requested by the Commission.

Amazingly, NONE of this was presented to the public by the Commission staff or the applicant thus far!

The inclusion of PJM material is particularly disturbing.

I wrote Chairman Lohbauer on 11/12/13 to request that the Commission determine whether the BL England plant had bid and cleared the PJM’s May 2013 power capacity auction.  If they had not, then there would be no need to rush the review of the project because BL England might not be a viable project. Lohbauer rejected that request on 11/14/13 with this claim:

No, I do not intend to contact PJM: their requirements are not pertinent to ours. The Commission is going to follow its process on this application dictated by the requirements of our own inquiry, as it does any other. I do not intend to raise these issues at the P&I Committee for that reason

(PJM is not pertinent? Then why was PJM analyses in the MOA? And I didn’t ask Lohbauer to “contact PJM” – I asked him to determine whether BL England cleared the PJM capacity auction. I contacted PJM and was told that under PJM rules, that information is confidential. But obviously, SJG knows because it impacts the project financing and schedule).

Another means of documenting his abuse is to review the critical flaws I have written about here, based on reviews of the Commission’s meeting minutes and some of the documents in the record (see especially this post where I criticized Counsel Roth’s biased statements in support of the project. Curiously, all of my criticisms are remedied in the draft MOA. But the timing will tell the tale).

Or compare some of Kirk Moore’s excellent news coverage to the MOA (see this and this) – it is clear that the flaws Kirk correctly wrote about were “corrected in the MOA.

Or review the critical testimony of Jeff Tittel of Sierra Club, who flagged many flaws in energy planning and regulatory review issues.

It is a deeply cynical abuse that the Commission used all the public criticism to “beef up” the MOA and correct the flaws in the review process, instead of using it to reject the proposed project.

That abuse is actually far worse that the abusive way the draft MOA was made public – 12 hours before Thanksgiving – and the compressed public hearing procedures.

We have a lot of work to do in a very litttle time, so I’ll leave it at that for now.

More to follow.