Mutiny In The Pinelands

Staff Signal Reversal of Finding That SJG Pipeline Violates the CMP

BPU Soon To Have Exclusive Control Over Pipeline Approval

“Private Development” and “BPU Pre-emption” cut public out

Executive Director Abuses Delegated Authority To Usurp Commission

mu·ti·ny/ˈmyo͞otnē/ noun – an open rebellion against the proper authorities

Documents show that Pinelands Commission staff, directed by Executive Director Wittenberg, is considering  a reversal of their prior finding that the South Jersey Gas pipeline violated the Comprehensive Management Plan (CMP), paving the way for staff to assume unilateral control over the SJG approval, with no public hearings or role of the Pinelands Commission.

It’s a mutiny (assuming you agree that the Executive Director reports to and serves the Pinelands Commission, and that the Commission is accountable to the public and should make decisions after a public process) – and a conspiracy too. Follow me.

SJG Strategy

It’s been obvious from the start that South Jersey Gas’ (SJG) strategy in the Pinelands is to create a public appearance (AKA a cover story) that “new information” and minor changes in the pipeline route justify reconsideration and reversal of the Pinelands Commission’s prior decision not to approve the project.

To make a long story short, the pipeline failed because the Pinelands Commission staff found the pipeline violated the Comprehensive Management Plan (CMP) because it was inconsistent with the Forest Area standards, which prohibit infrastructure unless it “primarily serves only the needs of the Pinelands”  (see: NJAC 7:50-5.23 (b)12).

So, just what does “primarily serve only the needs of the Pinelands” mean?  Look to the SJG strategy.

The SJG strategy was revealed in the documents SJG filed to amend their original application – much of that submission focused on trying to show that the pipeline served the BL England plant, which served the Pinelands.

SJG even sought to delete the word “only” from the regulation, via a convoluted legal argument, to weaken the standard – serving “only” the needs of the Pinelands is a far more stringent standard than serving “primarily” the needs of the Pinelands.

The SJG strategy was again revealed at the BPU public hearing, where SJG hijacked the hearing and provided 40 minutes of “expert” testimony that highlighted how the project allegedly benefitted the Pinelands.

BPU’ is a co-conspirator

Most recently, the Board of Public Utilities went along with the SJG strategy, by including “findings” in their July 23, 2015 approval order that are specific to the Pinelands, but have absolutely nothing to do with the BPU’s own rationale and legal basis for approving the pipeline.

Briefly, BPU “found” that the BL England plant served 39 of 53 municipalities in the Pinelands. What relevance does that have to BPU’s legal mandate to review pipelines? Nothing.

But, as we shall see, it has plenty to do with the Pinelands review and is obviously intended to promote SJG’s strategy to convince staff to reverse the prior finding.

BPU also “found” that the electric power generated by BL England plant would be distributed directly to the Pinelands via the regional grid:

 [b]ased upon the way that energy flows in the transmission system –to the nearest consumer unless redirected– energy produced by B.l. England would ordinarily go through the grid to customers of ACE.

Again, that BPU finding has absolutely nothing to do with BPU’s role, but it has a lot to do with the Pinelands Commission staff’s finding.

The Horner Letter signals Mutiny and reversal of prior staff finding

Pinelands staff follow the orders of Executive Director Wittenberg.

I begin with that observation because I don’t want to criticize individual staff members who are following Wittenberg’s Ahab-like orders (following Gov. Christie’s Orders).

Recall that Charles Horner, Director of Regulatory Programs at the Commission, had a highly unusual lapse in memory. Amazingly, he said he could not recall if the Pinelands staff determined that the SJG pipeline violated the Forest Area standards of the CMP. (See: The Pinelands Commission’s Immaculate Finding)

Now, in a July 29, 2015 letter to SJG, Horner reveals that the staff are considering reversing that critical finding that he could not recall them even making.

Specifically, Mr. Horner echoed the BPU tactics almost verbatim.

In an unusual and totally inappropriate move, Horner took it upon himself to review various data sources to conduct his own analysis.

Mr. Horner then concluded – and advised SJG – that Atlantic City Electric (via the BL England plant) served 32 Pinelands municipalities (BPU Order said 39) and 69% of Pinelands residents.

Who told Mr. Horner to conduct an analysis to determine what percentage of Pinelands residents are served by Atlantic Electric? Was he trying to correct BPU’s error? Was he correcting SJG’s application?

Horner then asked SJG if SJG would (please, oh pretty please!)

Please indicate whether you concur with this analysis.

Obviously, Mr. Horner should not be conducting this “analysis” and he certainly should not be asking SJG to concur with it.

Further revealing the mutiny, Mr. Horner’s July 29 analysis is very similar to the July 23, 2015 BPU findings and  – just like the BPU “findings” – has absolutely nothing to do with the “reliability” issue Horner chose to engage.

Again, just like the BPU findings, Mr. Horner’s analysis can only be used by SJG to support their argument that the pipeline and BL England “primarily serve only the needs of the Pinelands”

The Wittenberg letter confirms the mutiny

The press has written several stories critical of the fact that the new SJG project was changed to a “private development” project and that under Pinelands rules, such projects do not go before the Commission for a vote or trigger any public hearings at the Commission.

Environmental groups have expressed outrage over this.

The Pinelands Preservation Alliance, as well as myself and others, have written and testified to the Commission, asking that they clarify the process for review of the new SJG application and that they hold public hearings in the event that rules do not require them.

Executive Director Wittenberg just responded to PPA’s letter, and she not only confirms that there will be no public hearings, but seems to relish in that fact as she asserts her own power. In a July 24, 2015 letter, Wittenberg wrote:

With regard to the Commission’s review process for the pending application, Commission staff is reviewing the application in accordance with the standards of the CMP at N.J.A.C. 7:50-4.2 There is no provision for a public hearing or a public comment process for non-public applications, until after issuance of a local approval and then only if the Executive Director determines that such local approval raises substantial issues as to the conformance of the proposed development with the minimum standards of the CMP.

Even worse, Wittenberg, with impunity, states that Pinelands staff would be working with the BPU, the agency that approved 3 Orders in support of the SJG pipeline and has virtually ignored the Pinelands Commission and acted prematurely to issue BPU approvals in advance of the Commission’s review as a way of pressuring the Commission to approve the SJG project:

As you know, a Certificate of Filing is not an approval. Rather, it allows an applicant to proceed to obtain all requisite local and state approvals. See N.J.A.C. 7:50-4.34 and 4.81(b). In this instance the applicant has relied on the provision of the Municipal Land Use Law at N.J.S.A. 40:55D-19. This provision allows a public utility, for a project that extends into more than one municipality, to obtain its development approval from the Board of Public Utilities (BPU) instead of the municipalities. The Commission will work with the BPU to ensure that any order issued by the BPU is consistent with the minimum standards of the CMP. Specifically, the CMP at N.J.A.C. 7:50-4.82 through 4.84 provides a process for Commission input and review of applications submitted to any department, board, bureau, official or other agency of the State of New Jersey.

Let me translate that paragraph.

SJG petition to preempt municipal review seals the deal

SJG petitioned BPU to pre-empt municipal reviews under the land use law. These municipal reviews satisfy compliance with the Pinelands CMP.

In fact, the BPU has not yet approved the SJP preemption petition request, so it is obviously premature for Wittenberg to rely on that as part of the Commission’s review process.

But, even worse, as Wittenberg’s letter notes:

This provision allows a public utility, for a project that extends into more than one municipality, to obtain its development approval from the Board of Public Utilities (BPU) instead of the municipalities.

Follow this closely for what that means, because it is amazing:

That means that BPU is the ONLY entity reviewing and approving the SJG pipeline regarding compliance with Pinelands CMP!

The same BPU that has already issued 3 Orders approving the SJG pipeline project!

The same BPU that has promoted the pipeline and issued approvals PRIOR to the Pinelands Commission’s review that undermine the Pinelands Commission’s review process.

The same BPU that has no staff expertise – they wouldn’t know a tree frog from Kermit the frog.

No one envisioned such an absurd outcome when they wrote the CMP rules on private development.

The interaction of the CMP private development and the BPU preemption provision creates a total vacuum in review.

That can not stand and must be stopped.

(cited documents provided upon request – I have them as PDF’s not links).