Several Commissioners Balk at $8 Million MOA Deal
No Compelling Public Need for Pipeline Project
Throw A Tent Over This Circus!
But in that case, the commission’s agreement with electric company Conectiv (now Atlantic City Electric) “turned on a rigorous demonstration of need,” said Bill Wolfe of Public Employees of Environmental Responsibility, one of several groups protesting the plan. “There’s been no demonstration of need on this project.” (Critics: No need for proposed pipeline through the Pinelands - Asbury Park Press 11/8/13
The meeting of the Pinelands Commission Policy & Implementation Committee began on a somber note today, with the announcement of the unexpected death of Commissioner John Haas - I don’t know what the cause of death was, but I really hope that it was not related to the stress of this pipeline project.
There were some stunning developments today that surprised even me -cutting to the chase, there was a train wreck at the Pinelands Commission – at one point, chaos forced the Commission to adjourn to provide time to allow their lawyer to get her act together.
After an extensive staff presentation of the MOA – which amounted to a post hoc rationalization and response to public criticism – finally, at virtually the last minute, at least 5 Commissioners expressed strong reservations about the basic idea of entering into a Memorandum or Agreement (MOA) with the Board of Public Utilities (BPU) to accept an $8 million payment in exchange for approving the controversial South Jersey Gas Co. pipeline project.
Here were the objections:
1) Commissioner Lloyd questioned the MOA due to a lack of standards to determine an “equivalent level of protection”. He said that lack of standards provided excessive discretion to the Commission, saying that phrase means “anything we want it to”.
2) Commissioner Jackson said that he had just undergone ethics training and that the MOA harmed the Commission’s integrity and created the appearance of taking $8 million, paid by ratepayers, in exchange for approval. He warned his fellow Commissioners about growing public concern, particularly in light of South Jersey Gas’ recent request for a rate increase. Commissioner Jackson even said it looks like “we’re being paid off to do this.”
3) Other Commissioners opposed technical aspects of the MOA itself, and one Commissioner raised a fundamental concern about the methodology staff used to evaluate “equivalent ecological protection”. This is a complex issue, but basically, by analogizing the pipeline to the secondary impacts of a road intersection in terms of inducing development along the pipeline corridor and then extracting a payment to purchase those lands to block that development, the approach perversely invited and provided incentives to locate pipelines through preserved lands which could not be developed.
4) Commissioner Ashum chastised – really ridiculed – planner Larry Liggett’s presentation and said it was “ridiculous to describe construction of a 24 inch pipeline as having “minimal disturbance”.
Instead, several Commissioner’s urged that the project be reviewed under much stricter standards required for a “waiver of strict compliance”. Some asked why the “strict waiver” option was not considered and why a less stringent MOA was advocated by staff.
Needless to say, this is a first inning question that should have been discussed at the outset – a year ago – instead of in the bottom of the 9th inning with 2 outs, with the MOA public hearing scheduled on Monday!
These standards include a requirement that the project demonstrate a “compelling public need”.
Review under these standards also would protect the Commission’s integrity, forego the $8 million payoff, and eliminate the big black ethical cloud hovering over the Commission – which has been severely criticized for taking what amounts to an $8 million bribe for approving the project.
Let me be clear about the implications of this choice between MOA and Waiver are:
If the project is required to meet the stricter standards of a waiver instead of a MOA – which include demonstration of a “compelling public need” – then the project is dead. Period. Over.
Take a look at what Pines rules require::
7:50-4.64 Standards for establishing compelling public need
- (a) An applicant shall be deemed to have established compelling public need if the applicant demonstrates based on specific facts and the Pinelands Commission verifies that one of the following conditions exist:
- The proposed development will serve an essential health or safety need of the municipality or, in the case of an application serving more than one Pinelands municipality, the county in which the proposed development is located, and:
- The public health and safety require the requested waiver;
- The public benefits from the proposed use are of a character that override the importance of the protection of the Pinelands as established in the Pinelands Protection Act or the Federal Act;
- The proposed use is required to serve existing needs of the residents of the Pinelands; and
- No feasible alternatives exist outside the Pinelands Area to meet the established public need and that no better alternatives exist within the Pinelands Area;
No way this project can meet these standards. NO WAY (see also 7:50- 4.62).
All this chaos prompted the public to argue that it was absurd to hold a public hearing on a MOA when the Commission itself was now debating whether a MOA was appropriate and whether a “waiver of strict compliance” should be required.
On top of all that chaos, the head of the Sierra Club, Jeff Tittel, dropped a new bombshell by arguing that the project must comply with the requirements of Executive Order #215, which require an full Environmental Impact Statement (EIS) for projects by State Agencies that exceed $5 million and disturb more than 5 acres of land.
For the first time, South Jersey Gas Co. and Governor Christie’s Office lost control of the conversation.
For the first time, Commissioner’s engaged in thoughtful critical deliberation – I think it dawned on them that they have been manipulated by staff and have not been given complete information and guidance on all available alternatives.
I also think they were reacting to extremely negative recent press, with embarrassing TV coverage and quotes like this:
“I honestly think the agency is selling its soul for $8 million – It’s late afternoon, before Thanksgiving, and this is the first time we’ve seen any of this language. So everybody is supposed to be prepared a week from Monday to say their final words on this topic?” ~~~ Carleton Montgomery, Executive Director of the Pinelands Preservation Alliance quoted in Press of Atlantic City, Nov. 27, 13
Could they finally be thinking about whether this is the legacy they would like to leave?
Plan going forward
Chairman Lohbauer was repeatedly asked by the public to cancel or reschedule Monday’s public hearing on the draft MOA.
“If the Commission does not know whether to pursue a MOA or a “waiver of strict compliance” then it’s absurd to hold a public hearing on the MOA” was the refrain of several opponents (including myself).
Nonetheless, despite using his powers as Chair unilaterally to direct staff to draft the MOA, Lohbauer denied those requests and said it would be inappropriate to reschedule the hearing given the prior public notice on the hearing.
Subsequently – you can’t make this up – it was discovered that the public notice on the hearing was flawed – the wrong address was given. So, the Commission must re-issue the public notice, which gives them amply opportunity to cancel or reschedule it.
So, at this point in time, the most important thing to focus on is turnout for the pubic hearing on Monday.
Insist that the MOA be rejected and the project required to re-apply for a waiver of strict compliance pursuant to the above referenced regulations.
More to follow as this is developing and getting more interesting by the minute!