Pinelands Commission Readies Approval of Controversial Pipeline Deal

As predicted, Commission will push Memorandum of Agreement in December 

Final Vote Scheduled For January 10

Merry Christmas – Happy New Year! 

We just have to keep saying over and over again “It is not a done deal”  Pinelands Commissioner Ashmum, 9/13/13 (listen, at time 5:35)

Dorothy, just click your heels 3 times and repeat after me: "It's NOT a done deal - It's NOT a done deal - It's NOT a done deal"

[Update: 11/23/13 – Kirk Moore’s story:  Tentative pact reached for controversial Pinelands pipeline

PEMBERTON TWP. — The public will get its first look at a proposed agreement to allow a big natural gas pipeline through the Pinelands early next week when it will be posted on the Pinelands Commission website.

Commission Executive Director Nancy Wittenberg indicated Friday she will push to get a public hearing on the measure and ask the 15-member panel to vote on it Jan. 10.

Opponents of the gas line plan, who have packed commission meetings since June, groaned at the news.

“The deal is in,” laughed Bill Wolfe of Public Employees for Environmental Responsibility.

Today, the Pinelands Commission announced that they would hold a highly unusual special public hearing in December on a Memorandum of Agreement (MOA) with the Board of Public Utilities (BPU) regarding the South Jersey Gas Co. pipeline. The Commission would then vote on the MOA at the January 10, 2014 Commission meeting.

I don’t think that the public understands that approval of a MOA, which would circumvent the requirements of the Comprehensive Master Plan (CMP), amounts to approval of the project.

I also don’t think many understand how cynical the Commission’s announcement today was, especially the attempt by Director Wittenberg to create an impression that they were holding “special” meetings as a way of accommodating public input – instead of what it is: a sham effort to ram approvals through over the holidays to meet SJG and BL England financial and legal deadlines.

Now that the Commission has announced formal public hearings on the MOA, the terms of the MOA effectively become the basis of the Commission’s review.

The Commission has no regulatory standards, criteria, factors, or science based methodology to guide their review of a MOA. The sole requirement is that the MOA demonstrate an “equivalent level of protection” to that provided under the CMP.

The negotiations on the SJG MOA were focused on a cash payment by SJG to the Commission, similar to the previous MOA with BPU on the Atlantic Electric power lines along the Garden State Parkway. In that case, the Commission negotiated a $13 million payment to preserve land, and otherwise “mitigate” the environmental impacts of the power line.

But that BPU – Atlantic Electric MOA can not be used as precedent for three reasons.

First, the terms of the MOA itself stated that it was unique, sui generis. Second, even if it were a precedent, the SJG pipeline can not meet the standards of that MOA. Third, the Commission corrected the error of the MOA and subsequently amended the CMP for the Parkway, which effectively indirectly determined that a MOA was not an appropriate mechanism. The Commission realized that instead of a MOA, the CMP must be amended. The CMP amendment process provides a science based planning approach that avoids the “death of a thousand MOA” precedent problem.

Because the Commission lacks any standards to review a MOA, they are on very vulnerable legal ground. Basically, the Commission lacks a defensible scientific and enforceable regulatory basis to deny the MOA. Long story short: the law requires that government decisions must be based on duly promulgated regulations grounded in science – they can’t make stuff up as they go along and negotiate deals.

The Commission is not only on weak ground, but are even more vulnerable because the negotiations can easily be portrayed by SJG lawyers – correctly – as an illegitimate shakedown – what is sometimes referred to as an extraction. Judges don’t look favorably on regulatory agencies using their powers – in the absence of promulgated regulatory standards that are backed by a valid scientific methodology – to force corporations to pony up money.

SJG knows this.

So, today’s announcement amounts to a huge Christmas present to SJG and BL England.

The announcement today provides sufficient regulatory certainty” for the BL England plant to meet their December 31, 2013 “go/no go” decision and notification requirement under the DEP Administrative Consent Order.

The Commission would have been on much firmer ground if they concluded that the BPU is not a “public development agency” and therefore not eligible for a MOA and simply enforced the requirements of the CMP and killed the pipeline long ago. But, there was never any interest in enforcing the requirements of the CMP and killing the pipeline.

Today’s announcement also confirms exactly what I have predicted would happen since July – what I’ve called Chinatown.

Since July, I have been arguing that the South Jersey Gas pipeline – and the BL England repowering – is a done deal.

The project is strongly backed by Governor Christie. The Pinelands Commission review has been a total sham.

As evidence that the deal was in and the Pinelands Commission review process has been a sham, I cited the project’s history and chronology, based on three sources of information:

First, the deadlines under the May 18, 2012 DEP Administrative Consent Order. That Order requires that BL England repower the plant with natural gas by May 1, 2016  (see paragraph 20), unless they decide not to do so, a decision they must make by December 31, 2103 (see paragraph #23). If BL England decides NOT to repower the plan with natural gas, they must shut down by May 2014.

Second, evidence from the Board of Public Utilities (BPU) review shows that SJG, BPU, DEP, and the Pinelands Commission staff were colluding behind the scenes and prior to public awareness to coordinate their approvals of the project.

The South Jersey Gas Company petition to BPU seeking approval of the pipeline – read petition to BPU – was certified back on March 4, 2013. In that petition, SJG states that the Pinelands Commission staff reviewed the “selected” pipeline route:

In addition, the SJG petition to DEP invokes Governor Christie’s Energy Master Plan – similarly, the BPU testimony to the Pinelands Commission also repeatedly cited Governor Christie’s Energy Master Plan to support the pipeline and BL England repowering project.

Third, I’ve also cited evidence from the Pinelands Commission meetings – including their remarks captured on tape –  that show that Executive Director Wittenberg, Counselor Roth, and Planner Larry Liggett were working on a Memorandum of Agreement in support of the project since at least April 2013.

So, Pinelands Commission Chairman’s back on October 24, 2013 directive to staff to “begin” drafting a MOA for the Commission’s review was a deeply cynical and offensive lie.

At that meeting, I warned the Commission about the December DEP ACO “go/no go” deadline and  told them that they would permanently destroy their credibility if they rammed through a MOA in December.

And today, the Commission confirmed the lie – and will soon officially destroy their personal and institutional integrity – either that, or walk the plank and deny the MOA and kill the project.

And today, Chairman Lohbauer and Ms. Wittenberg even had the chutzpa to create the false appearance that the Commission was going out of their way to accommodate public hearings, by scheduling 2 sessions not on the current schedule, one on a Saturday.

But the truth is that these new December meetings are extraordinary efforts to ram the project through and provide sufficient regulatory certainty to BL England such that they can provide the “go” notification to DEP by December 31, as required under the ACO..

In other words, it was a done deal – done at least since May 2012 when DEP amended the prior 2006 enforcement ACO to support repowering.

And here’s the ultimate irony: even if the Commission stands up, shows integrity, asserts its independence from the Governor ,and a majority decide to walk the plank, SJG would be on strong legal ground to appeal and win.

Please, Commissioners, prove me wrong – I’d gladly eat all my words on this.

[End notes:

1) The State Park Police presence – with bullet proof vests no less – was the first time ever that police have been at a Commission meeting. It was offensive and a ridiculous over-reaction, spawned by Counsleor Roth’s poor judgement during the prior meeting, when she called police.

2) I will put the Commission on notice about legal obligations under the Open Public Meetings Act. –

Much more to follow. – end