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Corporate & Political Power Twist CMP & Commission Into A Pretzel

Regulatory Gymnastics of Executive Director Are Obscene and Legally Absurd

“It’s in the rules,” Ms. Wittenberg said. “I can’t change it.” ~~~ Wall Street Journal (Aug. 20, 2015)

[Update: 10/20/15 – Kirk Moore writes at NJ Spotlight on BPU Public hearing

Under Pinelands rules, private developments should be reviewed by local municipal land-use boards, under ordinances that incorporate the Pinelands standards, said environmental activist Bill Wolfe of Bordentown.

But the regulators’ recent moves on the gas line have led to the “absurd outcome” of the BPU having a final say without local reviews, Wolfe said.  ~~~ end update]

What is going on in the Pinelands with respect to proposed gas pipelines is patently illegal and absurd.

Today, we take on the absurdity of the South Jersey Gas pipeline review and leave the lawlessness for a future post.

Conclusions

In a nutshell, we conclude that it is a legally and logically absurd outcome for the Board of Public Utilities (BPU) to be the agency that reviews the South Jersey Gas company (SJG) pipeline for compliance with the Pinelands Comprehensive Management Plan (CMP).

That outcome is absurd because:

1) the BPU previously acted on behalf of the SJG pipeline by entering into a Memorandum of Agreement (MOA) with the Pinelands Commission. The MOA was the mechanism to bring the pipeline into compliance with the CMP. The purpose of the MOA was to secure Pinelands Commission approval of the SJG pipeline.

2) The outcome also is absurd because the BPU has issued 3 prior Orders approving the route, safety, and contracts for the SJG pipeline.

3) The BPU, in addition to the prior regulatory actions supporting and approving the SJG pipeline, will review and decide on a petition filed by SJG to pre-empt municipal review of the SJG pipeline. If BPU were to approve the SJG petition, BPU would become the review agency. This adds a whole new layer of absurdity.

4) The BPU lacks the expertise and institutional mission to conduct an adequate land use review and protect Pinelands resources as required by the Pinelands Act and CMP.

5) The Pinelands Act is silent on and provides no legislative authority or legal standards for the designation of the SJG project as a “private development application”; the issuance of a “Certificate of Filing” for the SJG project; the elimination of Pinelands Commission’s review powers; and the elimination of public hearings before the Commission.

6) The unique interaction of the Executive Director’s interpretation of the CMP and the SJG pre-emption petition results in an absurd outcome that could not have been anticipated by, considered by, or authorized by the Legislature or the CMP.

Accordingly, the Executive Director of the Pinelands Commission created an absurd outcome.

The BPU has gross conflicts of interest and can not be an impartial and objective review agency as required by law, thus an absurd outcome.

Argument

In law, there is a doctrine of “absurd outcomes“:

The absurdity doctrine, also known as the “scrivener’s error” exception, is a legal theory under which American courts have interpreted statutes contrary to their plain meaning in order to avoid absurd legal conclusions.^[14][15][16] It is contrasted with ^[17]

“The common sense of man approves the judgment mentioned by Pufendorf [sic. Puffendorf], that the Bolognian law which enacted ‘that whoever drew blood in the streets should be punished with the utmost severity’, did not extend to the surgeon who opened the vein of a person that fell down in the street in a fit. The same common sense accepts the ruling, cited by Plowden, that the statute of 1st Edward II, which enacts that a prisoner who breaks prison shall be guilty of a felony, does not extend to a prisoner who breaks out when the prison is on fire – ‘for he is not to be hanged because he would not stay to be burnt‘.”^[18]

The leading 1868 US Supreme Court case involves the prosecution of a sheriff who arrested a mailman (footnotes deleted):

An early Supreme Court decision, Kirby v. United States provides a good example both in historical terms and in terms of the principle’s present application.” Kirby involved a statute that  prohibited a person from “knowingly and willfully obstruct[ing] or retard[ing] the passage of the mail, or of any driver or carrier.” Defendant Kirby was a county sheriff who had a bench warrant commanding him to arrest a man named Farris, who, in addition to having been indicted for murder, also happened to be a mail carrier. Kirby and his posse arrested Farris while he was carrying the mail, and were indicted for violating the statute. The Court ruled that the statute did not apply to the situation before it. …

… the Court set up a presumption with regard to legislative intent. It began by saying that no legislative intention to exempt mail carriers from such an arrest “should be attributed to Congress unless clearly manifested by its language,”and then continued:

“All laws should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice, oppression, or an absurd consequence. It will always, therefore, be presumed that the legislature intended exceptions to its language, which would avoid results of this character The reason of the law in such cases should prevail over its letter.”

Ironically, legal scholar and former Obama regulatory Czar Cass Sunstein has written about the absurdity doctrine in the context of environmental regulatory decisions.

Sunstein’s argument is that environmental agencies should have the legal flexibility to avoid absurd outcomes that could result from a literal reading of the statute passed by a legislature. Agencies have expertise and – as an institution –  should be afforded latitude, not handcuffed by inflexible legalistic formalism.

Sunstein’s summarizes this new principle:

In the last two decades, federal courts have been developing a new and thus far unacknowledged canon of regulatory law: As a general rule, administrative agencies will be taken to have the authority to interpret statutes so as to avoid absurd or patently unreasonable results, even if the interpretation is hard to square with the literal language of the statute. This canon authorizes agencies, and in particular agencies that regulate the environment, far more flexibility in the interpretation of literal language than courts are now permitted to have. My narrow goal in this Essay is to describe and to defend this canon. My broader goal is to use the canon as a basis for urging that contemporary theories about interpretation go wrong by emphasizing large claims about democracy and legitimacy at the expense of an inquiry into the real-world capacities of our various institutions, including the U.S. Environmental Protection Agency (EPA) and the federal courts.

The Suntein argument is ironic in the Pinelands case, because the absurd outcome was produced by the regulatory agency itself!

The absurdity was created by Executive Director Wittenberg’s regulatory gymnastics:

First, Wittenberg unilaterally reversed a prior regulatory finding that the SJG pipeline violated the forest standards of the CMP because it did not “primarily serve only the Pinelands“, as required by the CMP;

Second, Wittenberg shoehorned a project – defined under Pinelands CMP regulations as “Public services” and “Public service infrastructure” by SJG, a corporate entity regulated under NJ law as a “public utility” – into a section of the CMP designed for the review of local governments (NJAC 7: 50-4.34 – certificate of filing) , as a “private development application”.

Third, because the SJG petition to BPU to preempt local review under the NJ Municipal Land Use Law was pending at the time her decision was made, Wittenberg knowingly created the absurd outcome whereby BPU becomes the agency to review the SJG project for compliance with the CMP.

We will make this and other arguments at the BPU’s October 19, 2015 public hearing on the SJG preemption petition.

But the real action will occur 2 days later at the BPU’s evidentiary hearing, which will determine the outcome.

That’s where these kind of arguments must be made – and we are pleased to note that the attorneys for the Pinelands Preservation Alliance have petitioned BPU to intervene in that hearing.

We’ll keep you posted.

Increased Disturbance Only a Floor – Limits Can Be Waived Completely

You Will Be Shocked By New “Limits” for Pipelines

[Update below]

Forget that the Christie DEP proposes to repeal the Category One stream buffer protections and replace them by much weaker “riparian zone” rules – or even eliminate them entirely with a waiver and mitigation scheme.

Let’s look today only at the proposed increases in allowable disturbance of a riparian zone under existing stream encroachment regulations (see Table C on page 88) and compare them to the proposed new allowable disturbances (see Table 11.2 on page 690 – 691).

Pipeline opponents might want to look closely at current maximum disturbance for a utility line stream crossing of 12,000 square feet in Table C and compare that with the proposed new scheme in Table 11.2 below.

The proposed new scheme would set a vague “limit” of 30 square feet of disturbance per linear foot of utility line – but how would that be measured? Just the segment through the riparian zone? Or the total length? For a pipeline perpendicular stream crossing across 600 feet of riparian zone that’s 18,000 square feet (current in 12,000 a 50% increase). But I think pipeline ROW’s are wide than 30 feet, no? Assume that would trigger a waiver and mitigation scheme, not a permit denial.

Proposed new rules also would allow 6,000 square feet of disturbance for access to the project, per stream crossing on C1 designated streams with 300 foot buffers.

Finally, the proposal would allow unlimited riparian disturbance for activities called “reconstruction, upgrade, expansion, or maintenance”. Just Think of what Penn East’s lawyers will do with that!!!

The pipeline rollbacks alone are sufficient to strike these proposed rules down as inconsistent with legislative intent. And abuses like that are across the board for virtually all regulated activities.

Here are current limits on riparian zone disturbance:

Now here are the Christie DEP proposed ACROSS THE BOARD INCREASES (see Table 11.2, on page 690):

At least 4 critical things jump right off the page:

1) The allowable disturbances are no longer “maximums” – they are in fact floor minimums, and can be increased or waived completely

2) the allowable square feet of disturbance increases across the board for each activity

3) new activities are allowed to disturb riparian buffers

4) some limits on disturbance are waived completely

DEP issues thousands of stream encroachment permits every year – what these proposed increases in allowable disturbance and waivers mean in the real world is that NJ will lose thousands of acres of environmentally sensitive riparian zones.

That means more flooding and more water pollution.

Period.

That alone is sufficient to strike these proposed rules down as inconsistent with legislative intent.

Unless DEP can show where the Legislature has enacted a policy directing them to do so.

These Tables should be downloaded, printed out, and on the desk of every legislator and environmental reporter well before Monday’s Senate Env. Cmte. hearing.

[Update: 10/14/15 – the proposed allowance of 30 square feet of disturbance for each linear foot of pipeline is not a standard or a limit, and it literally invites pipelines and utilities into riparian zones.

 In theory, it would allow a pipeline to route through a buffer – parallel to the stream – for miles. That’s why my original post included an illustration of a 20 mile long pipeline, which could disturb 72 acres. I deleted that because I thought it might not be realistic.

But the Elizabethtown Gas pipeline looked like it ran through the buffer of Sidney Brook for a far as the eye could see from the ground (maybe 3,000 feet). If that all were in buffer, that would be well over 10,000 square feet for that small segment alone. It was tough to see where the stream and the buffer were from the ground. Look:

lower PK, with Kittatiny Ridge peeking through

As doth eternity: Cold Pastoral!

         When old age shall this generation waste,

                Thou shalt remain, in midst of other woe

Than ours, a friend to man, to whom thou say’st,

         “Beauty is truth, truth beauty,—that is all

                Ye know on earth, and all ye need to know.”  ~~~ Ode on a Grecian Urn (Keats)

We respect our readers’ sense of truth and beauty – and strive for both.

After our disappointment at Sidney Brook yesterday, we headed north to the Paulins Kill for salvation.

The DEP designated portions of the Paulins Kill a “Category One” (C1) water on January 6, 2003.

Remarkably, that critical regulatory fact is ignored by the Christie DEP and their friends in Sussex County in the “Paulins Kill Restoration Plan (2012) – a truly remarkable omission given the non-point source pollutant focus of that plan.

C1 waters are those that have “exceptional ecological, water supply, fisheries, recreational or aesthetic characteristics”. ( see NJ Surface Water Quality Standards (SWQS) @: NJAC 7:9B)

More importantly, under the Clean Water Act and NJ’s Surface Water Quality Standards, C1 waters are protected from any “measurable change” to “existing water quality” (EWQ). Keep those two phrases in mind.

EWQ is defined to incude the physical, chemical, and biological integrity.

Look how broadly DEP’s federal EPA approved SWQS regulations define “measurable change” – models, predictions, “might adversely impact”:

“Measurable changes” means changes measured or determined by a biological, chemical, physical, or analytical method, conducted in accordance with USEPA approved methods as identified in 40 C.F.R. 136 or other analytical methods (for example, mathematical models, ecological indices) approved by the Department, that might adversely impact a water use (including, but not limited to, aesthetics).

No measurable change in EWQ would mean that DEP could require that EWQ be characterized PRIOR to any discharge of a pollutant or land disturbance. That would require collection of at least 4 quarters of site specific physical, chemical, and biological data to be statistically and scientifically representative of seasonal fluctuations.

This could authorize DEP to require that a permit applicant develop a site specific calibrated model to assess pollutant runoff from land disturbance and the resulting impact on EWQ.

This also means that based on that baseline characterization of EWQ, DEP could deny permits or approvals for any activity that causes or contributes to things like:

• erosion or scouring or temperature increase (i.e. a measurable physical change); or
• increase in suspended or dissolved solids, salts,  or any chemical pollutant (i.e. a measurable chemical change); or
• harm to any aquatic species or aquatic dependent species (individual or population; plant or animal) that lives in the waterbody or its buffer (i.e. a measurable biological change).

Now how radical is that?

THIS IS WHY I’VE BEEN URGING PIPELINE OPPONENTS TO FOCUS ON DEP ISSUANCE OF A WATER QUALITY CERTIFICATE.

ironwood is my second favorite tree

To assure that level of protection of existing water quality protection from any activity that generates storm water and creates non-point source pollution, one tool DEP developed is the 300 foot wide buffers along C1 waterbodies as a storm water water quality “best management practice”.

But the 300 foot buffer requirements are just one tool –

DEP has multiple additional tools to enforce the SWQS for C1 waters of no measurable change in EWQ, such as: wetlands permits, water quality certifications, stream encroachment permits, Municipal Stormwater permits, water quality management plans, NJPDES permits, and direct enforcement authority.

For example, how would it be possible fora pipeline contractor to construct access roads, equipment staging areas, and cross C1 streams without creating a measurable change” to EWQ or disturbing vegetation and soils in the 300 foot C1 buffer?

So, here are the critical questions activist must focus on:

1. is DEP requiring the numeric and statistically representative characterization of the physical, chemical and biological parameters of “Existing Water Quality”  BEFORE granting any permit that might impact EWQ?

2. Is DEP enforcing the C1 standard of “no measurable change” to EWQ in issuing planning and permit approvals?

3. Because the C1 policy is a federally approved, federally funded, and federally enforceable State Surface Water Quality Standard standard under the Clean Water Act, is US EPA Region II monitoring and supervising DEP’s planning, permitting, and enforcement of the C1 standard?

The answer to all of the above is a resounding NO.

And now for some more beauty:

ironwood graces the PK

We conclude with the backstory of Paulins Kill:

In spring & summer of 1994, after I blew the whistle on DEP and Gov. Whitman’s corrupt strategy to cover up mercury contamination of freshwater fish, while DEP managers and the AG’s Office were trumping up their various charges and trying hard to force me out of the Department, DEP Commissioner Bob Shinn did the equivalent of banishing me to Siberia.

I was ordered out of my 7th floor Trenton Office and told to report to Green Acres field office in Hamilton.

When I reported to work, Green Acres Administrator didn’t know what to do with me. I had no knowledge or experience in land acquisition.

So, he gave me a State car and a clip board with various tax maps and forms and told me to drive up to the Paulins Kill every day and inventory properties.

I had no idea what I was doing at the time and enjoyed the daily hikes – but that effort contributed to the Paulins Kill Trail.

Hainesburg Junction telegraph office – a message or Bill Gates and the techno-utopians

NJ shore towns are not the only ones with parking ordinances that restrict public access

And They Put A Gas Pipeline Through It

Sidney Brook Watershed (Source: NJ Water Supply Authority) – I used this because DEP has taken down all their C1 maps

On Sunday night, I decided to write a series of posts this week – with photos – of some of the *original designated “Category One Waters” I worked on at DEP from 2002 – 2004 to illustrate what’s at stake in the upcoming Senate debate on SCR 180, a Resolution that would veto the Christie DEP proposed Flood Hazard rules (aka “stream encroachment”).

[The Resolution either still is not drafted yet or just not posted to the Legislature’s website. That is unusual. News reports were that it was introduced in the Senate more than 2 weeks ago.]

Among other things, that DEP proposal would repeal the Category One buffers (aka “Special Water Resource Protection Areas”) and replace them with “riparian zones” of the same width, but with far less regulatory protections.

There are approximately 2,000 stream miles of Category One Waters, including all major reservoirs – including many in the 400,000 acre Highlands Planning Area – so this repeal would represent a HUGE threat to water quality on a statewide basis.

The DEP explained the basis for the designation: (@ page 60)

The Department applied an integrated ecological assessment and determined that Sidney Brook qualified as a waterbody of “exceptional ecological significance”. Therefore, the application of Category 1 designation to this waterbody is appropriate. The exceptional in-stream habitat, the overall condition of the aquatic community as measured by macroinvertebrates, the presence of fifteen different fish species including adult Brook Trout and the presence of bog and wood turtles were factors in this determination. Another indicator of the stream’s exceptional ecological significance is the presence of stable banks with infrequent erosion, little sediment deposition, no channelization, and healthy riparian corridor including riffles, boulders, runs and pools.

Adding to that history is the fact that the C1 designation was in a response to a petition for rule making, filed by attorney Tom Borden on behalf of concerned citizens in Clinton Township. Wow! Democracy and activism having a direct impact on government regulation – can you even imagine that today?

I had not been to the brook is over a decade, and lost track of the Milligan Farms site and the controversial development and wastewater discharge to the brook that spawned the petition for C1 designation rule making. That C1 designation forced DEP to revoke the NJPDES surface water discharge permit and the developer abandoned the development project.

The Milligan Farms and Windy Acres development project kills are great examples of  what I’ve described as “The Power of a C1 Designation”.

So, on a gorgeous early fall day today, I headed out for Sidney Brook, NJ’s first stream designated Category One based on “exceptional ecological significance”.

The development project was stopped and the lovely rural landscape was preserved:

The stream was flowing reasonably well given the dry weather – and the vegetation was not disturbed:

But as I walked further,  I was aghast at what I saw: the Sidney Brook natural buffer was disturbed by a natural gas pipeline! How’s that for “exceptional ecological significance”?

Elizabethtown Gas “Natural Gas Regulator Station”

Only in NJ at the DEP.

In a future post, I will explain how loopholes in the C1 regulations allow this abuse to happen.

Really, if this is the way the public and local officials have defended and DEP has implemented the C1 buffer protection program, I almost think maybe the program deserves to be repealed.

COMING TOMORROW: WE DO BETTER AT THE PAULINS KILL.

* – There were C1 waters designated before 2002, but they were limited to “trout production” (TP) waters with naturally reproducing populations of trout. In 2002, DEP dramatically expanded the regulatory basis for C1 designations to include “exceptional” ecological, water supply, recreational and aesthetic characteristics.

Because the policy of C1 designation is to “maintain existing water quality”, DEP then required 300 foot buffers around C1 waters as an “anti degradation implementation strategy” as a water quality “best management practice” (BMP) in the storm water rules.

I was a prime architect of that regulatory strategy at DEP, building on Tom Borden’s pioneering work with the Sidney Brook petition.

Does the Path From The Pope To Paris Pass Through The Pinelands?

Pinelands Commission Breaks Silence and Denial on Climate Change

Activists Press Commission on Climate Policy and Moratorium On Pipelines 

“Joint Base-Gate” Emails Suggest Fraud

[Update: 10/21/15 – Did I sniff this one out or what?

Upon first hearing of the NJ Natural Gas pipeline, back on February 16, 2015 I wrote: (emphasis in original]

4) Military Madness loophole?

The new issue of the New Jersey Natural Gas proposed pipeline was discussed on Friday.

There were suggestions that the location on Dix/McGuire Joint Base could be used to dodge CMP restrictions.

Do I smell a military loophole being manufactured?  ~~~~~ end update]

Friday’s October meeting of the Pinelands Commission was extraordinary. Shockingly, none of this got reported by the media. Here’s the brief rundown – I urge readers to watch the video to get the full monte.

Climate Change

At the conclusion of the meeting, a Pinelands Commissioner urged the Commission to step up and play a role in climate change and consider the climate implications of fossil infrastructure like pipelines:

I’d like to followup on an issue Mr. Wolfe raised with respect to climate change … I think that there’s nothing more important for us as an agency to do to protect this planet. I agree with Mr. Wolfe. I don’t have a full legal analysis  but I think we have the opportunity and the jurisdiction to do that…. This effort is related to the other discussion we had this morning with respect to pipeline infrastructure. … In my view we shouldn’t be investing in pipelines, we should be investing in renewables.  ~~~~  Commissioner Ed Lloyd (watch at the very end, at time 1:32:30)

Earlier in the hearing, I testified to urge the Commission to consider the Pope’s remarkably popular visit and his urgent climate challenge set forth so beautifully in his encyclical Our Common Home and build a bridge to the upcoming Paris Climate Treaty negotiations:

In the Pope’s wake, the upcoming Paris Climate Treaty is again going to put the climate issue front and center in the public debate. What better time for the Commission to say “we’re going to amend the CMP and incorporate climate policies and energy”?

I previously gave you the scientific rationale for that. I previously pointed to the Adirondack Park Agency who has done something similar with their land use powers to build climate and energy policies into their land use reviews. I’ve pointed to where you have statutory authority under the Pinelands Act to do it. So today, I want to connect the dots on how your existing CMP actually obligates you do do it. …

It is a politically opportune time to make a public statement and get out of all the negativity we’re in and do something positive. Instead of spending staff time working with applicants to build pipelines through the Pinelands, we can do something good.  So, that’s my appeal to reason. ~~~  Wolfe at time 55:10  (wonks can read the end note for connecting the regulatory dots).

For years now, I and many others have urged the Pinelands Commission to address climate change and energy policies in the Comprehensive Management Plan (CMP), most recently, see:

• Pinelands Commission Urged To Address Climate Change Impacts on Pinelands Resources

Friday’s open discussion was a very small step, but it could be a key turing point, because over two years ago, my recommendations were rejected by Commission “Special Counsel’ Stacy Roth,  in a behind closed doors meeting that was caught on audio tape, see:

• Pinelands Commission Lawyer Claims Agency Lacks Power To Consider Climate Change In Review of $500 Million Fossil Infrastructure Project

Moratorium on Pipelines Pending Reforms to Planning and Regulatory Review 

We have urged the Commission to impose an administrative moratorium on review of pipelines and energy infrastructure until the Comprehensive Management Plan (CMP) can be amended to provide adequate planning and environmental safeguards.

In support of a moratorium, I reminded the Commission that:1) the nearby DRBC has a moratorium on fracking; 2) the Pinelands Act authorizes the Commission to adopt bylaws and regulations, which is sufficient power to enact a moratorium; 3) that weaknesses and gaps discovered during review of the South jersey Gas pipeline justified the need for additional CMP safeguards; and 4) that the US Supreme Court has upheld administrative moratorium pending adoption of regional plan to protect natural resources in the Lake Tahoe case.

The exploding “Joint Base-Gate” scandal provides additional justification (see below).

I asked the Commission to direct staff to request an Attorney General’s legal opinion – but Special Counsel Roth rejected that saying that the legal issues would be discussed in Executive Session. I objected to that approach for a lack of transparency and accountability.

We may be making progress, because the Commission considered legal issues involving a moratorium in executive session

Growing “Joint Base-Gate” NJ Natural Gas Pipeline scandal 

Doug O’Malley of Environment NJ got it exactly right when he said that recent email disclosures revealing that Pinelands staff may have been involved in what appears to be a scheme by NJ Natural Gas and Joint Base official to concoct a false military purpose to avoid regulatory scrutiny by the Pinelands Commission had created a “crisis of confidence” in the Commission.

There was powerful testimony I urge the public to watch, beginning at time 25:25.

You have black and white emails from company officials that say that they were concocting a military purpose.

A NJNJ official wrote to military officials, in no uncertain terms, that the company was seeking to route the pipeline onto the base not for actual military purpose but for the sole reason to gain the Commission’s deference for projects that have military purposes. …

Providing deceptive information to a public agency or officials was illegal when it happened at the Joint Base and submitting an application to the Pinelands Commission with knowingly false claims for the purpose of obtaining a near total exemption from the CMP, for which an applicant knows it does not truthfully qualify is definitely illegal as well.

In a future post, I will outline why NJNG wanted a military purpose and how the Pinelands Comprehensive Management Plan provides less restrictive standards.

In the meantime, you can watch the testimony and read the WHYY coverage of that issue here.

Food and Water Watch has posted the emails here.

We’ll keep you posted – the Commission needs to feel strong public pressure to do the right thing on all these issues to resolve the current crisis of confidence.