Getting the Story Right on The Pinelands Pipeline Debacle

Staff Reversed Prior Finding That Pipeline Violated The CMP

Reversal Allowed Project To Evade Strict Waiver Standards

BPU Pre-emption of Local Land Use Reviews Pending

Last Friday at the regular monthly meeting of the Pinelands Commission, Executive Director Wittenberg, during her routine Report to the Commissioners, casually mentioned that staff had issued a “Certificate of Filing” for the controversial South Jersey Gas (SJG) pipeline.

Pipeline opponents correctly expressed outrage over Wittenberg’s machinations.

But, their outrage was completely misdirected and their alleged surprise by Wittenberg’s “sneak attack” was flat out disingenuous.

If you read the original news reports (see this and this), you would think that the stunning new “sneak attack” – or “Pearl Harbor” – issues are the fact that the Commission will not vote on the pipeline project and that the project has been reconsidered as a “private” development application under Pinelands CMP rules.

That is a load of garbage and it misses the real story. Here’s why.

First of all, Wittenberg did not engage in a sneak attack.

For months, it has been well known and reported by the press that the SJG application was amended and that SJG was seeking to be considered a “private development”.

For months, it has been well known and reported by the press that the Pinelands Commission would have no vote and that there would be no public hearings before the Commission.

For months, I wrote several posts about all that and detailed the SJG strategy, see:

• “New” Pinelands Pipeline Proposal Based on Brazen Lies
• An Open Letter to Pinelands Executive Director Nancy Wittenberg
• Pinelands Commission Asked To Impose A Moratorium on Pipeline Reviews
• Mutiny In The Pinelands
• Pinelands Executive Director Caught On Tape Minimizing Impacts Of Pipeline

For months, while all these critical activities were going on behind the scenes at the Pinelands Commission staff level, Sierra Club and PPA were silent, both in testimony before the Commission and in the media. That reality belies their outrage about a “sneak attack”

So, what has NOT been reported by the press and what is the most significant and egregious action by Wittenberg is the reversal of the prior staff finding that the SJG pipeline was inconsistent with the Forest Area standards of the CMP because the pipeline did not “primarily serve only the Pinelands” as required by the CMP.

Although both SJG and BPU offered up a mishmash of arguments to attempt to claim that there was “new information”, in fact there are no “new” relevant and material facts or information that would justify a reversal of that finding.

Had the Commission staff stood by and re-affirmed the prior finding that the pipeline violated the CMP, the only alternative for SJG would have been to seek a waiver of strict compliance.

They could never have met the standards for a waiver, so, the pipeline would have been killed.

That’s the story folks, and I have no idea why it is not being told by PPA, Sierra and company.

Instead, they’ve muddied the water and let Wittenberg off the hook (she is right, she’s been saying its  a private application with no vote by the Commission for MONTHS and that’s been reported in the press for months too).

The painful irony is that avoidance of a Commission vote lets the Gov. and the Senate off the hook for dumping Commissioners Fagalia and Jackson and installing Barr.

Second, the mis-placed focus obscures the pending issue of BPU preemption of local land use reviews of the pipeline under the Pinelands CMP and how bizarre the process really is.

Here is that absurdity in a nutshell:

1) under the CMP, a private development application is issued a “Certificate of Filing’ and the land use review of the application is essentially delegated by the Pinelands Commission to local governments under their land use powers.

The assumption is that a “private development” is a minor project that is appropriate for a local government review, backstopped by the requirements that their local review must be consistent with the CMP.

2) If a local government review does not comply with the CMP, then the Pinelands Commission staff can “call up”, or conduct their own review of the project to correct the local government error or non-compliance.

3) However, SJG has filed a petition with BPU to pre-empt local land use reviews of the pipeline.

The Pinelands Commission has no authority to “call up” a Certificate of Filing review of a State agency.

4) Therefore, if BPU grants the SJG petition, then BPU – and BPU alone – would conduct the land use review of the pipeline under the CMP.

The absurdity rests in the fact that BPU has already issued 3 Orders approving the project and supported the project by acting in behalf of SJG by seeking a MOA with the Pinelands Commission to resolve the violation of the CMP.

Obviously, BPU can not objectively review a pipeline they strongly support.

Not only that, but BPU has no institutional role or staff expertise in land use or Pinelands ecology.

Now, how crazy is all that?