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What Does the Pinelands Commission Have to Hide?

December 2nd, 2013 Bill Wolfe Leave a comment Go to comments

Commission Denies Public Records Request for Contacts With South Jersey Gas Company

This is not what transparency looks like

Is the Commission Covering Up “Regulatory Capture” – Or Worse?

Month after month after month Stacey [Counselor Roth] warned you that the pipeline was coming. The public was here. We did not keep this a secret. It’s not my fault they missed it. ~~~ Pinelands Commission Executive Director Nancy Wittenberg (9/13/13) (listen)

Executive Director Wittenberg (center) – pushing project on behalf of Gov. Christie’s Office. Counselor Roth (R)

[Updates below]

I am preparing for the Pinelands Commission’s scheduled December 9, 2013 public hearing on a draft Memorandum of Agreement (MOA) with the Board of Public Utilities (BPU) that would authorize construction of a $90 million 22 mile pipeline through the Pinelands National Reserve. The purpose of the project is to re-power the antiquated BL England power plant, a $400 million project.

The draft MOA includes an $8 million payment from South Jersey Gas Co. to the Commission. Some have taken strong exception to 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

So, there is a LOT of private sector money backing this project, a LOT of discretion being exercised by the Commission under extremely vague rules, and a huge potential for political mischief, including pressure from Gov. Christie, who supports the project – dynamics I have referred to as “Chinatown” and extreme pressures on the Commission to “take a dive for the short end money”.

These potentials for abuse greatly heighten the need for complete transparency in how the project was reviewed and how the MOA was crafted.

In preparing for that MOA hearing – like I do for any important and complex public hearing – I like to conduct a file review to understand the relevant facts and issues.

To get fully up to speed on a project of this complexity and magnitude, I review the various primary documents submitted to the regulatory agency in support of an application for approval, as well as the back and forth between staff and the project’s engineers and lawyers. These documents comprise what the lawyers refer to as the “administrative record” – or the policy, technical, scientific and legal bases upon which government decisions are made.

To accomplish that research, I typically file requests under the Open Public Records Act (OPRA).

So, once the Commission announced the upcoming public hearing on the MOA, I filed 2 OPRA requests to the Pinelands Commission. This is my standard operating procedure – I file scores of OPRA request, most to DEP.

The first OPRA I filed to the Commission requested all communications between the applicant, South Jersey Gas and the Pinelands Commission, including the meeting schedules of Commissioners, Executive Director Wittenberg, Counselor Roth, and planner Liggett:

1. All correspondence, emails, meeting notes, and phone logs documenting all communications between Pinelands staff and representatives of South Jersey Gas Co. during the period April 2012 until the present;

2. The meeting schedule of Executive Director Wittenberg for the period Jan. 1, 2012 until the present.

3. The meeting schedule of Counselor Roth for the period Jan. 1, 2012 until the present.

4. The meeting schedule for planner Larry Liggett for the period Jan. 1, 2012 until the present.

5. The meeting schedule for all Commissioners attending meetings at the Commission’s Office, from June 1, 2013 until the present.

The second requested copies of all the various technical documents cited in the draft MOA.

According to the Pinelands staff’s August 28, 2013 presentation of the SJG project, there were a series of documents and meetings between staff and SJG – here is the overall chronology:

Source: Pinelands Commission August 28, 2013 staff presentation

When the public became aware of the fact that Pinelands staff had been meeting with SJG since April 2012, many people were outraged.

Several people testified that this kind of cozy and covert relationship with SJG had led to what political scientists call “regulatory capture”.

In fact, one Pinelands Commissioner even was recorded on tape saying that he agreed with my criticism of those meetings and that they created “bias”.

But there are more than just communications on the SJG pipeline application – it is very likely that there also were meetings and negotiations regarding development of the MOA.

All these documents are public records and are fundamental to any notion of government “transparency”.

So, in order to get an informed understanding of the issues and the back and forth between the staff and SJG that occurred during the 18 month course of review of the application and development of the draft MOA, I requested to review all communications between SJG and the Commission.

The first OPRA request was denied today as overly broad and exempt from OPRA (the denial document is in Word format, no link yet, but is available upon request).

How is it possible that correspondence between SJG and the Commission regarding a regulatory approval could be exempt from OPRA? These documents are essential elements of the administrative record and clearly are public records under OPRA.

Which obviously leads to the question: why?

What does the Pinelands Commission have to hide?

In addition to creating the reasonable appearance of a coverup of “regulatory capture” – or even worse improprieties – the Commission’s arrogance is astounding.

It is bad enough that the Commission scheduled a Dec. 9 public hearing the afternoon before Thanksgiving in what sure looks like an effort to ram the approval through to meet a Dec. 31 deadline set by DEP, and perhaps even worse that they then limited public comments to just 3 minutes per speaker, but to then deny a public record request for the documents the shed light upon upon how they made decisions is outrageous and intolerable.

So, Chairman Lohbauer may want to modify these words:

I’m not sure why you consider the publishing of this document to be cynical; I believe our process is quite transparent, and consistent with our MOA procedure. ~~~ Pinelands Commission Chairman, Mark Lohbauer 11/28/13 personal email to the author’s 11/27/13 objection to the MOA review procedure

[and ED Wittenberg, it sure looks like you’re keeping something secret.]

[Update #2- 3/18/15 – We were right – NJ Spotlight explains exactly what the Commission was hiding and why our OPRA was denied:

BEHIND-SCENES STRUGGLE SHADOWS SENATE PINELANDS VOTE, PIPELINE PROJECT

“What the emails show is the governor’s office was involved, almost in real time” as Lloyd was to be confronted with the conflict allegation, said activist Bill Wolfe, a former state environmental analyst now with the Public Employees for Environmental Responsibility. ~~~ end update]

[Update #1: 12/3/13 – I rarely do this, but the photo caught my eye – the woman’s eye’s looked a lot like those of ED Wittenberg in the photo above – so I just clicked on one of those dopey pop ups that appear before I can open my email, and I could not resist posting what I just saw in light of photos I was just processing for this post – compare the boldface behaviors with the photos below:

Become a Human Lie Detector

Look for Suspicious Behaviors – Here’s the top eight list of suspicious behaviors:

A change in the voice’s pitch.

A change in the rate of speech.

A sudden increase in the number of “ums” and “ahs.”

A change in eye contact. Normally, one makes eye contact one-quarter to one-half of the time. If suddenly, at the convenient moment to lie, he’s staring at you or looking away, beware.

Turning his body away from you, even if just slightly.

Suddenly being able to see the white on the top and bottom of a person’s eyes, not just the sides.

A hand reaching, even if momentarily, to cover part of the face, especially the mouth.

Nervous movement of feet or legs.