WolfeNotes.com

Activists Fiddle With FERC & NEPA – Rome Burns

Over 200 opponents of the other Pinelands pipeline – proposed by NJ Natural Gas and dubbed “The Southern Reliability Link”  – packed a standing room only crowd in Bordentown last night.

The Burlington County Times covered the event (read the whole story by David Levinsky, the lead correctly framed the issue), so I’ll be brief and expand on his lead:

BORDENTOWN TOWNSHIP — State and federal regulators may be just weeks away from rendering decisions on a controversial natural gas pipeline and related compressor station proposed for northern Burlington County but opponents urged area residents to keep up the fight.

“They want to rubber stamp and push this through as quickly as possible, but you as citizens have rights,” Jeff Tittel, director of the New Jersey Sierra Club, said Wednesday during an information forum at the township community center. “They don’t have a right to just build this pipeline. There are regulatory processes they have to go through and the louder the public speaks out the better.”

The event was organized by Food and Water Watch and the Mayor of Bordentown Township, and included speakers from Sierra Club and Pinelands Preservation Alliance.

The spot on critical remarks by Mayor Jill Popko in the set up story for the event were what likely attracted the turnout of local, state and federal elected officials – Lesson: this is how you hold politicians accountable: (NJ.Com story]

She [Popko] also put out a call to county freeholders, state senators, Assemblymembers, U.S. Sens. Cory Booker and Robert Melendez and U.S. Reps. Chris Smith and Tom MacArthur in the hopes that they would be able to talk to and hear their constituents’ concerns.

“If they’re not going to come out and take the time to hear what they have to say and hear their concerns, I think that speaks volumes,” Popko said of the legislators. “I know that our Congressional and Senate representatives hear plenty from their lobbyists, but maybe it’s time to hear from their constituents.”

The set up was perfect and the organizing was very well done and the turnout was fantastic.

But the challenge for the pipeline opponents is to channel the energy of all the local opponents and focus it on a specific demand from a political target with the legal/regulatory power to kill the pipeline.

Unfortunately, the opponents again failed to rise to that challenge and – to use a disgusting hunting metaphor – continue a shotgun (birdshot) approach that focuses on FEMA, NEPA, local governments, and private property rights – instead of the slug shot needed to kill this project.

I’ve been writing about these issues for months to try to influence the strategy and focus of pipeline opponents and activists, so let me try not to repeat that and make this as simple as possible.

The pipeline project is opposed for a myriad of good reasons that motivate residents, empower activists and support good public policy. But not all of them are equal in weight or equivalent in priority in terms of their ability to frame an effective message and support a campaign to kill the project.

Strategic judgments, focus, and discipline are required (just ask the Koch Brothers, whose strategy is exposed in this incredible paper).

The pipeline is regulated by a multitude of complex federal and state laws – again, not all are as enforceable and thus as effective in their ability to block the pipeline.

There essentially are four agencies that theoretically have regulatory power that could block the pipeline – but each agency has its own track record in review of pipelines, it’s own legal and policy framework and its own political accountability. Not all are equal in power and in the likelihood of saying NO – in a politically and legally defensible way – to a pipeline:

1) the Federal Energy Regulatory Commission (FERC)

2) the NJ Board of Public Utilities (BPU)

3) the NJ Pinelands Commission

4) the NJ Department of Environmental Protection (DEP)

So, let’s compress what I see are the key factors in selecting an agency target and legal/regulatory strategy that can support a winning message and mobilize activists:

a) strength of legal and regulatory framework;

b) agency policy priorities;

c) agency institutional history, culture, and track record on pipelines;

d) ability to hold the agency politically and legally accountable; and

e) ability to translate into action: spur public opposition and mobilize activism.

And now lets reach some strategic conclusions, based on these factors

Of course, if this were a rigorous analysis, I would explain and document each factor and assign weighted points and come up with a quantitative recommendation.

But, this is WolfeNotes (not a policy journal) and after 30 years of waging these kinds of battles and campaigns, let me just cut to the chase.

One thing is for sure – if I were to apply these factors to rank and select targets, a strategic focus on FERC and NEPA would come in dead last.

FERC operates under an incredibly pro-gas industry law written by the gas industry. The Courts have upheld that policy bias. Their professional staff training is biased towards extraction and FERC’s institutional values and culture are completely captured by the gas industry. FERC is ostensibly an independent regulatory agency that is relatively insulted from political intervention by Congress or the President and thus difficult to hold accountable. They are a complex, insular, and far away Washington DC beltway bureaucracy that is not open, transparent and activist friendly and frankly doesn’t give a rat’s ass about public opposition.

Not surprisingly, FERC has never said NO and rejected a proposed pipeline (at least that’s I’m aware of).

I would put NJ BPU in a similar category and low target priority ranking as FERC, but with slightly more favorable political accountability ratings because they operate under more favorable laws that could benefit the public interest, they implement a Energy Master Plan that could support sound policy decisions, and although supposed to be independent, they are essentially accountable to the Governor and an arm of his administration.

So, why on earth would pipeline opponents spend so much, time, energy, resources, and the enthusiasm of residents and activists on FERC? FERC is a total waste of time and resources.

Another thing is for sure – if I were to apply these factors to select a statute & regulatory framework, a target on National Environmental Policy Act (NEPA) would come in dead last also.

NEPA is what the lawyers call a “procedural statute” that is “not dispositive”. It is all about process and can not determine outcomes. NEPA is technocratic and complex and an EIS motivates only those absorbed by the technical and policy arguments and is hardly activist friendly. NEPA is administered by a far away low visibility DC Executive Branch bureaucracy that no one other than Al Gore types ever heard of (the Council on Environmental Quality (CEQ)) that is only weakly accountable to the Congress, the federal Courts and the President. In fact, Obama issued an Executive Order to “streamline” energy infrastructure NEPA reviews and Congress just enacted that EO into law (Obama signed the bill).

Historically, even NEPA victories -including those on project segmentation and failure to consider cumulative and secondary impacts – rarely have stopped a project and merely can inject delay and slow a project down. As I’ve noted, in the current economic climate of depressed energy prices and slack demand, delay actually benefits the gas industry.

So, why on earth would pipeline opponents spend so much, time, energy, resources, and the enthusiasm of laymen residents and activists on NEPA?

Arguments against a focus on private property rights and local Resolutions are even stronger than the arguments against a focus on FERC and NEPA, so I won’t spend any time on them here, but merely note that again we see pipeline activist emphasizing these ineffective arguments.

However, if I were to apply these factors, by far the number one target would be the Pinelands Commission.

The Pinelands Commission operates under an extremely strong federal and state legal framework. The pro-environmental policy priorities are expressed in an enforceable Comprehensive Management Plan (CMP). The staff are excellent professionals. The Commission has a history and culture that respects and protects the Pines. The Commissioners are local, accessible, operate in an open and transparent fashion, are are highly accountable. They are not captured by the gas industry. There is strong public, political, and media support for the protection of the Pinelands.

For all these reasons – and more – the Commission would have been an ideal and exclusive target.

But, under direction of Gov. Christie,  Executive Director Wittenberg hijacked the Commission and unilaterally issued an approval of the pipeline known as a “Certificate of Filing”.

Pipeline opponents have been slow to adjust and move on from this reality – a lawsuit is the only thing that can respond to the Pinelands issues. They need to retarget. Or plan a direct action campaign of non-violent civil disobedience.

A distant second on the list would be the DEP.

But the DEP has plenty of legal and regulatory power to kill the pipeline. There is a DIRECT political accountability between DEP, environmental laws, and the Governor (that’s why successful activists in NY are targeting Gov. Cuomo so aggressively and effectively).

DEP’s history is not that good and the current leadership is in the process of dismantling the agency and destroying its culture. But the middle managers and professionals are for the most part reasonably balanced. There is strong public support for the environment that DEP manages – particularly clean water – and there is favorable media. There is plenty of good legal precedent and the Courts are willing to enforce it. The legislature is a problem, but, overall, DEP is moderately politically accountable, far more so that FERC, CEQ or BPU.

So why are pipeline activists not focused on Governor Christie and DEP’s regulatory powers – particularly under the Clean Water Act – and demanding that Christie direct DEP to kill the pipeline?

That failure is a continuing mystery and deep frustration.

 

We recently read that construction of the Transco pipeline had hit a “snag”:

The company ran into a snag as it tried to install the last section of the pipeline underground, using a hydraulic ram to tunnel through an area off Cherry Hill and Cherry Valley roads. It hit some dense rock in that area and could not get through.  …

Having been stymied in its efforts to drill underground to install the pipeline and ruining several expensive drill bits in the process, Williams-Transco wants permission from the Department of Environmental Protection to open a trench to install the last section of pipeline.

Were these the same geotechnical engineers that designed this Tennessee Gas pipeline?

We were curious and thought folks might want to see what was going on at the site.

So we took a ride out last week and – after being chased off by an on duty Montgomery Police officer – we rambled onto the site through the woods off Road

Here’s what we saw: first thing we noticed was the neighborhood – I bet Transco’s route planners didn’t know what they were getting in to:

Bushwacking in through the brambled understory, we knew we were getting close when we saw the sediment choked stream running like chocolate milk:

There, through woods, we spotted the pickup trucks!

The view to the northwest

was not much better than the view southeast

We headed back to the car before the goons got us for trespassing – and drove the perimeter roads.

That’s where we noticed the Elysian Fields:(that green line along the tree line is gas pipeline)

and this lovely stretch of Bedens Brook

Heading back home with wet feet and a wet dog, we drove through the Princeton Ridge portion of the pipeline to see how the 1% live – even the 1% can’t escape the pipelines and climate chaos. We’re all in this together.

Check this Modernist mansion out, literally siting on the pipeline. Wonder if the owners have reviewed the “kill zone” maps: (or if the geotechnical engineers saw that boulder!)

Ah, what the hell – at least they give the wealthy neighbors nice rustic fences in Princeton!

In closing, this is what we need to be telling the greed head frackers:

Forest Preservation Values Far Outweigh Logging and Hunting

Christie DEP Would Allow Special Interests To Dictate Public Lands Policy

(this is part four of our look at the DEP’s proposed Sparta Mountain “Forest Stewardship Plan” which would significantly expand logging on the mountain. Here are links to read part one and part two and part three.)

When the people of NJ and their Legislators vote overwhelmingly in favor of Green Acres bonds to pay to preserve open space – particularly to protect Highlands forests – they certainly don’t have logging in mind.

Sparta Mountain is a “Wildlife Management Area” (WMA) but the 3,461 acres of land was acquired with Green Acres funds (see DEP data). The public who approved those funds voted for open space preservation and recreation, not logging and hunting.

According to DEP, there are 353,442 acres of land in NJ designated as “Wildlife Management Areas” (WMA) under the administration  of DEP’s Division of Fish and Wildlife (DFW).

But 70% of WMA lands were purchased with Green Acres bond funds. Only 27 % were acquired by DFW (but the funding source is not specified) and just 3% were acreage acquired with Waterfowl Stamp Program funds. So these lands are not “owned” by or intended to serve the interests of hunting, logging or wildlife management interests.

The DEP’s Division of Fish and Wildlife (DFW) is merely the administrative entity that owns those lands – they are held in trust by DFW for the benefit of all the people and environmental values of the state.

The management of the public land on Sparta Mountain is governed by the laws and policies of Green Acres, not DFW’s program goals which are dominated by exploitive and extractive special interests like hunting and logging.

Yet the DEP’s proposed Sparta Mountain “Forest Stewardship Plan” completely fails to mention that the forest was acquired by Green Acres funds.

Worse, the proposed plan has the relationship between Green Acres and DFW mission and the balance of multiple uses of public lands exactly backwards.

Here is the Green Acres mission – note the emphasis on public use and enjoyment, the multiple uses served by Green Acres, and the lack of any mention of logging and hunting:

Green Acres MissionTo achieve, in partnership with others, a system of interconnected open spaces, whose protection will preserve and enhance New Jersey’s natural environment and its historic, scenic, and recreational resources for public use and enjoyment. The Green Acres Program was created in 1961 to meet New Jersey’s growing recreation and conservation needs. Together with public and private partners, Green Acres has protected over half a million acres of open space and provided hundreds of outdoor recreational facilities in communities around the State.

But here is how the DEP plan expresses these issues – in particular note the “primary emphasis” on wildlife management: (see page 29)

6. RECREATION AND AESTHETICS

The SMWMA offers many opportunities for public recreation including; hunting, hiking, mountain biking, running, fishing, cross country skiing, and wildlife viewing. Although wildlife management should be the primary emphasis for any Wildlife Management Area, it is paramount to balance habitat treatments at SMWMA with the recreational needs that users have grown to expect from this property. This balance will be achieved by treating small acreages at a time (where public use might be restricted for safety concerns), leaving most of the property undisturbed and completely open to the public. Management activities proposed throughout this FSP will improve recreational experiences by enhancing ecosystem services. However, silvicultural treatments may be temporarily unattractive to many. This can be mitigated to some degree through the use of leave- tree buffers around treatment areas known to receive more use, like well-known trails and vistas. Educating the public to the idea that an open park-like understory is less ecologically valuable than dense forest with downed trees and slash, may help to redefine the public’s view of forest aesthetics. This could be accomplished through strategic interpretive station placement.

Note how the premise of the plan is that the public’s aesthetic values are somehow wrong and need to be “mitigated”  and “redefined” through “education”.  At best that is public relations and propaganda – and it is totally inappropriate for a government agency to be doing that via an “interpretive station” in the forest.

This is bureaucratic and techno-hubris on steroids. The tyranny of the so called experts.

I don’t know about you, but I am horrified – absolutely horrified – when I see something like this, which the plan describes in Orwellian euphemism as a “seed tree treatment”, not a clearcut:

Fatal Flaws abound

The birders I talk to express regret but frankly tell me that the Golden Wing Warbler (GWW) is gone from NJ – or hybridized with blue wing. They say the GWW objectives of the DEP plan are absurd.

The forest ecologists I talk to tell me that the plan would bring sunlight to the forest floor, stimulate a proliferation of invasive species and that forests will not regenerate due to deer browse. They also note destruction of habitat for other species, like interior forest birds and rare plants. They question the failure to consider and quantify natural blowdown and related habitat change resulting from recent major storms.

I haven’t spoken to the trout fishermen yet, but I imagine that Trout Unlimited will strongly oppose logging in the headwaters of Russia Brook, a trout production stream. Ditto the 40-50 foot buffers and the flawed  scientific claims about no significant increase in stream temperatures or sedimentation that would devastate trout sensitive trout populations.

The Highlands advocates I talk to strongly oppose the plan as the antithesis of the conservation and land preservation strategy of the Highlands Act and RMP.

Hikers, birders, and nature photographers/observers, like NJ Sierra Club, oppose the plan as incompatible with public use and enjoyment of the forest.

Public health advocates I talk to tell me that herbicide treatments poison public water supplies and ecosystems, not something anyone should promote in a public water supply watershed.

Watershed protection groups tell me that logging will destroy wetlands and sensitive headwaters and impair water quality, and increase erosion and downstream flooding.

Conservation and open space advocates tell me that logging public lands undermines public support for open space funding and contradicts the purposes of Green Acres.

I haven’t had a chance to talk to historic preservationists, but I am aware of significant historical and cultural resources on the mountain, including Edison Village, that would be negatively impacted.

From a climate change perspective, the plan would reduce the capacity for carbon sequestration in forests – exactly the opposite of what we should be doing. If DEP wants to cultivate early successional forests, why not engage in afforestation of barren or agricultural lands? That would INCREASE carbon sequestration, not reduce it. Better yet, professional foresters and DEP could invest in a massive urban forestry program and address carbon sequestration and urban heat island effects.

And I’m sure the mountain biking and tourist communities are not attracted to logged forests and will go elsewhere to enjoy themselves and spend their money – Has the Sussex County Chamber of Commerce considered these kind of negative economic impacts?

The DEP plan would benefit a tiny handful of hunters, professional foresters, and commercial loggers.

It must be abandoned.

In part five, we look as some of the specific blocks of forest and critique the analysis used to justify heavy logging i.e. “seed tree treatments” on 9 of the 33 blocks.

[Update: March 10, 2019 – In addition to BL England and the SJG pipeline, Commissioner Chila is GONE – he should never have been appointed: (Press of Atlantic City):

Wittenberg also said Commissioner Giuseppe “Joe” Chila, who was appointed a commissioner in 2016, had to resign after being elected surrogate in Gloucester County, as a court ruled he cannot hold both positions. ~~~ end update]

At Friday’s Pinelands Commission meeting, Chairman Lohbauer announced that longtime Commissioner Witt was stepping down.

Witt will be replaced by Gloucester County Freeholder Director Giuseppe (Joe) Chila:

Freeholder Chila graduated from Paulsboro High School and the Gloucester County Institute of Technology.  Joe is a member of the International Brotherhood of Electrical Workers Lu. 351 AFL-CIO.  […]

From 2003-2010 Freeholder Chila served as the Mayor of Woolwich Township where he led the fastest growing Township in Gloucester County.  

[*Note: By the early 2000’s, Woolwich’s growth rate was second fastest in the entire country.]

Woolwich was ground zero in a major fight over restrictions on water allocations to support new growth in order to protect ecological functions. See more recent USGS study:

It is estimated that the population in Gloucester County will increase by almost 27 percent from 2000 to 2025. The DVRPC projected population increases in Woolwich [is] 359 percent ….

The largest decline in simulated water levels from the 2000 baseline simulation was 16 ft in Woolwich Township, centered on a water-purveyor well (15-1532) (fig. 44A).

I suspect that this might have an impact on the Commissions plans to adopt new water allocation restriction based on the Kirkwood-Cohansey research project.

Freeholder Chila has friends in high places:

At Gloucester freeholder ceremony, Sweeney and Norcross help usher in 2015

 

…. Bumped up in ranks was the board’s Deputy Director, Giuseppe “Joe” Chila, replacing Freeholder Director Robert Damminger

Need I say more?

I’m curious as to whether the Fulop campaign will engage and make the Pinelands a contrast issue – preserving the Legacy of Democratic Governor Byrne and Congressman Florio and all that jive.

Besides, IBEW surely must know that there are more good permanent union jobs in solar and wind and conversion of the grid to local distributed energy than temporary work on pipelines.

While the Pinelands may be located in South Jersey, they are a federally established and protected National Reserve, and not the object of some corrupt political machine.

Have at it.

I began writing this as a post on the resolution of the Pinelands soccer fields land use dispute, the DEP Motorized Access Plan (MAP), and the kickoff of the Pinelands Commission’s 2016 as a year in preview, but it got way too long.

So I am breaking it up into 3 separate posts, starting now with the least significant issue about soccer fields. Next I will do the DEP MAP and last the 2016 year in preview.

I did not follow the soccer controversy. My initial take on it was that it was being used as a diversion to deflect focus and criticism from Executive Director Wittenberg’s approval of another Certificate of Filing for the NJ Natural Gas pipeline.

While the soccer fields dispute may seem a minor issue, it highlights, at best poor communication, or more likely a continuing pattern of unilateral acts of insubordination and sabotage by Executive Director Wittenberg.

Once again, Wittenberg is following the direction of Governor Christie and not the Pinelands Commission.

This time, unlike the South Jersey Gas pipeline controversy, the Commission’s policy position was unanimous, was made clear publicly, and was communicated to Wittenberg, so the defiance has no justification in any ambiguity or a divided Commission.

So, what’s up with this?

During Friday January 15, 2016 Commission meeting, Chairman Lohbauer summarized the Commission’s position in strong opposition to the soccer fields legislation, to Gov. Christie’s Conditional Veto of the bill passed by the Legislature, and to the Legislature’s concurrence with the Gov.’s CV: (verbatim quotes):

Staff worked hard to put together a strong position as to why the bill should not be passed.

The Commissioners joined unanimously in taking a stand against the passage of that bill. We communicated that to Trenton.

When the bill was passed, the Governor’s Office did conditionally veto it. …..

So once again, we lobbied to encourage the Legislature NOT to pass the Conditional veto  ….I’m sad to say that it did pass. (watch, at time 34:00) (emphases mine)

[To reiterate and make clear: Lohbauer opposed 3 discrete things that occurred in discrete timeframes: 1) the proposed legislation; 2) the Gov.’s conditional veto; and 3) the legislature’s concurrence with the Gv. CV.]

But just 4 days prior to Chairman Lohbauer’s explanation and during a critical period, Executive Director Wittenberg took the OPPOSITE position in the press, in support of the Governor and the CV .

Worse, Wittenberg stated this position BEFORE the legislature had concurred with the Governor’s CV, thereby sending a green light from the Commission that contradicted the Commission’s publicly stated position: