Staff Repeating Same Industry Capture Abuse As Under Christie Pipeline Fiasco
Wittenberg (R) Grogan (L)
Former Pinelands Commission Executive Director Nancy Wittenberg and her staff got so close to lawyers and lobbyists for the South Jersey Gas Pipeline that she was called out publicly by Commissioner Lohbauer in the Philadelphia Inquirer:
“There was a degree of closeness between the applicant and staff that went beyond the neutrality appropriate to a review process,” said [Pinelands Commission Chairman] Lohbauer, a lawyer. ~~~ Philadelphia Inquirer (1/26/15)
Wittenberg’s Assistant at the time and successor current Executive Director Susan Grogan is repeating those same corrupt practices. Here’s the story:
I recently learned that the Pinelands Commission proposed to exempt the mining industry from new water allocation regulations designed to protect sensitive Pines ecology, see:
The Commission made it appear that this decision to exempt the mining industry was based on written comments submitted by the mining industry during the legally prescribed “notice and comment” rulamaking procedure.
Here is how the decision was explained in the February Management Report:
- Water Management (Kirkwood-Cohansey): The Commission adopted a resolution at its February 10, 2023 meeting authorizing re-proposal of the CMP rule amendments with substantial changes in response to public comment. The re-proposal notice will be submitted to the Office of Administrative Law in early March for publication in the New Jersey Register
Did you get that? The re-proposal with substantial changes was made “in response to public comment”.
The Commission staff repeated this false claim that the decision to make substantial changes was made “during the public comment period”. They did it not only in the Monthly Management Report, but in a formal regulatory document.
Here’s how the Pinelands Commission staff explained this decision to exempt the mining industry in the proposed “substantial changes” document:
The Commission is proposing three substantial changes to the amendments in response to comments received. During the public comment period on the original notice of proposal, the Commission received comments expressing concern regarding the impact of the proposed amendments on the resource extraction industry in the Pinelands Area.
The claim that the substantial changes were proposed in response to comments received “during the public comment period” is a factually false statement. False. False. False.
The public comment period closed on November 5, 2022. But the staff met with the mining industry AFTER the public comment period was closed (see staff’s statement on when this meeting occurred below).
And now take a look at how they obscured what the “substantial changes in response to public comment” actually meant (i.e. bureaucratic terms for rollback) in the Commission’s public Agenda for the February 10 meeting. Based on this language, the public would have no idea what was really going on:
CMP Amendments
To Authorize the Acting Executive Director to Propose Substantial Changes Upon Adoption to the Proposed Amendments to the Comprehensive Management Plan Related to Water Management in Accordance with the Administrative Procedure Act”
The NJ Administrative Procedure Act requires government agencies to provide public notice, hold public hearings, and allow for public comment on proposed rules. The Act requires the government agency to respond in writing to every public comment submitted, and it guarantees that all written comments and government responses are open public records available to all.
That rulemaking procedure thereby assures “due process”, transparency, and government accountability. Everyone has equal access to the government agency and everyone has access to and works off the same information.
The government agency’s role in this public comment period on proposed rulemaking – after the rule is proposed – is passive: i.e. the agency provides public notice and holds an open public hearing and listens to and receives written public comments. Everyone has exactly the same access to the government agency and the same information.
Government agencies don’t actively select and go out and privately meet with groups or individuals that have economic interests in the proposed rule.
Private meetings obviously are not allowed or a part of this rulemaking procedure because secrecy is anathema to due process, transparency, and accountability. And private meetings can lead to corruption and industry capture.
But, upon more detailed investigation, I now learn that the Commission’s decision was not based on comments received during the legally mandated rulemaking procedure. Instead, the decision was actually based on a private meeting with mining industry representatives. That meeting occurred AFTER the close of the public comment period and there are no public records on this meeting.
I first learned of this improper meeting by digging in the weeds. Buried in the staff briefing “packet” provided to Pinelands Commissioners before each meeting, which is posted in an obscure link on an obscure Commission website, I found this explanation for the exemption of the mining industry, which was provided by staff to the Commissioners: (link to packet)
After discussion of the changes with the P&I Committee at its November 2022 meeting, staff met with New Jersey Department of Environmental Protection (NJDEP) and the aggregate industry to gather further information on the water allocation permitting process and regulation of water quality.
It is not clear if there were one combined DEP/Mining industry meeting or two meetings. That fact alone is important. Also, notice that this explanation does not identify who was at these meetings, who said what, and what information was discussed. Therefore, the public has no way of knowing what the actual factual basis is for the staff’s decision to exempt the mining industry. The mining industry and the Commission staff are not held accountable to science, facts, and public review. There is no transparency and no accountability. The mining representatives could have been handing out $100 bills at this meeting, for all we know (I am not alleging they did).
The meeting with the mining industry was held AFTER the public comment period closed.
Given this abuse, I wrote the following protest letter to the Pinelands Commission:
Dear Pinelands Commission:
Please accept these public comments on the Commission’s rulemaking procedures on the recent “Kirkwood-Cohansey water rule” to amend the CMP.
I request that these comments: 1) be provided to the full Commission, 2) be considered as public comments during and incorporated in the minutes of your next meeting; and 3) included in the administrative record of the subject rulemaking and contemplated substantive changes to the original proposal.
The Commission’s rules to amend the CMP (i.e. original proposal, or “Kirkwood-Cohansey water rule”) were proposed on September 6 and the public comment period closed on November 5
https://www.state.nj.us/pinelands/cmp/amend/PRN%202022-110%20(54%20N.J.R.%201668(a)).pdf
After the close of the public comment period, the Commission admits that it met with DEP and the mining industry regarding impacts of the proposal. This meeting generated information upon which the Commission somehow decided to substantively amend the original proposal. This meeting occurred after the close of the public comment period on the rule proposal.
The minutes of the Commission’s February 14 meeting state:
“After discussion of the changes with the P&I Committee at its November 2022 meeting, staff met with New Jersey Department of Environmental Protection (NJDEP) and the aggregate industry to gather further information on the water allocation permitting process and regulation of water quality.”
https://www.nj.gov/pinelands/home/meetings/documents/031023%20Meeting%20Packet.pdf
I find this meeting highly improper –
The Commission staff selectively met with just one specific interested party that was impacted by the rule. This existence and substance of this meeting were not conducted “on the record” and a formal part of the subject rulemaking. The public had no opportunity to participate in or to be made aware of and rebut the mining industry’s arguments.
It also appears that the Commission made a highly substantive legal and regulatory policy decision to defer to the DEP water allocation regulations to address overlapping issues implicit in the subject CMP original rule proposal. Additionally, this deference to DEP appears to be part of the basis for the substantive change change to exempt the mining from the subject original proposal. Yet that basis is not specifically stated in the Commission’s response to comments and as the basis for:
Notice of Proposed Substantial Changes Upon Adoption to Proposed Amendments
https://www.nj.gov/pinelands/cmp/amend/Notice%20of%20substantial%20changes%20FINAL.pdf
As such, this staff level decision is not transparent, lacks any articulated basis, was not preceded by policy guidance from the Commission, and there was no prior public notice and comment opportunity.
This is a violation of fundamental due process and transparency and may violate the rulemaking procedures under the NJ Administrative Procedure Act.
Please provide the legal basis in the NJ APA the Commission relies on for authorization of this kind of procedural maneuver.
Respectfully,
Bill Wolfe