The MOA Battle is Won, but the Pipeline and BL England War is Not Over
Pinelands Commissioners (L-R) Prickett, Lohbauer (Chair); Rohan Green; DiBello (National Park Service); Brown
By now, it is well known that on Friday (1/10), the Pinelands Commission rejected a proposed Memorandum of Agreement (MOA) that would have allowed construction of the South Jersey Gas Pipeline through the Pinelands National Reserve, in violation of the forest protection policies and standards of the Comprehensive Management Plan (CMP).
(Source: Wayne Parry, AP)
The vote was a huge victory for the coalition of activists who had opposed the project and a stunning rebuke to the Christie Administration, who had pulled out all the stops in support of the project – from the major DEP amendment to the BL England enforcement Order that paved the way for re-powering that plant; to BPU approvals and massive subsidies; to the extraordinary behind the scenes pressures on the Pinelands Commission and manipulation by Christie appointee Executive Director Wittenberg and her loyal Lieutenant, Stacy Roth.
For months, I had written that the project was a done deal and frankly, while I felt that the recent GWB scandal opened up political space for Commissioners to vote their conscience, the bottom line was that I was very skeptical of our ability to block the 8 YES votes to approve the project.
I was wrong – regardless of that, continued vigilance and skepticism are warranted.
Those unfamiliar with the details may want to start with the excellent news coverage of that vote see Kirk Moore APP; Sarah Watson of the Press of AC; and WNYC stories:
Instead of repeating what the media has written or providing a more expansive blow by blow of the Commission’s decision and the rationales they offered in support of various Commissioners’ votes, upon reflection, I’d like to take a few moments to begin a discussion of the factors that drove this victory, highlight continuing problems that must be addressed, and look ahead to suggest a few ideas for going forward.
But first, let me begin with a big word of caution:
I) The project may come back under Pinelands waiver rules
The Commission deadlocked by a 7-7 vote on a draft MOA. Pipeline supporters needed 8 YES votes – they got 7. So, this was a very narrow political victory. Just one vote from the 7 NO votes could provide the margin of victory in any future vote.
Suggesting how soft the opposition was, some of the NO voters immediately ran away from the implications of the vote, in terms of killing the pipeline or the BL England plant. Emphasizing the possibility for a pipeline outside the Pinelands, Commissioner Ficcaglia told Kirk Moore:
But in voting no, Commissioner Leslie Ficcaglia predicted BL England still has a future: “The pipeline will doubtless be built, but elsewhere.”
To make matters more problematic, some of the rationales for votes opposing the MOA were based – in whole or in part – on the narrow legal issue of whether a MOA was legally permissible and whether the more appropriate review procedure under Pinelands regulations was a “waiver of strict compliance”. (for a brief discussion of the Pines waiver rules, with links to the rules, see: All Hell Broke Loose at the Pinelands Commission Today).
In particular, Chairman Lohbauer’s opposition was based exclusively – 100% – on this narrow legal question.
Lohbauer signals a possible future waiver debate in his comments to Kirk Moore:
The memorandum of agreement, or MOA, would have enabled an exception to that rule. But in the end, that’s what bothered commission Chairman Mark S. Lohbauer, who said “South Jersey Gas is the real applicant” and should have asked the commission directly for a waiver from Pinelands rules.
Lohbauer could easily become the 8th vote victory margin if the project comes back under the waiver rules.
While I think it is impossible for the project legitimately to meet the standards under the waiver rules – which require, among other things, demonstrations of both a “compelling public need” and that “no feasible alternatives” exist outside the Pinelands – given the huge economic stakes, the players involved, and the politics, anything still could happen.
In fact, in another totally unauthorized and inappropriate move that warrants firing, Commission Legal Counsel Stacy Roth got out in front of and initiated that debate when she told the Associated Press that the project could come back under the waiver rules:
Stacey Roth, the commission’s attorney, said the applicant can ask the commission to consider a new proposal in the future. Dan Lockwood, a spokesman for the gas company, said it is studying its options.
Why is the Pinelands lawyer out front of South Jersey Gas Company in terms of future options? Who on the Commission authorized Roth to say this to the press?
It is crucial to note that Roth spoke to the press shortly after attempting to sabotage the Commission’s 7-7- vote by declaring “we are in a procedural quagmire” – immediately after which she then began a private discussion with the Gov. Office representative and Deputy Attorney General seated next to her.
But there never was any “procedural quagmire”: the Resolution in support of the MOA failed to secure the 8 votes required.
[Update: Watch Roth make sham “procedural quagmire” speech – h/t Mike Sheridan]
In making this remark, Roth was either grossly incompetent or intentionally trying to sandbag the vote. For either offense, she should be fired (see additional reason to fire Ms. Roth below – specifically, Roth lied about the Lloyd recusal matter, as documented by the NY Times:
The deputy attorney general told Mr. Lloyd that he could appeal to the Pinelands Commission’s ethics lawyer. Mr. Lloyd was working on that appeal when his phone rang. It was the ethics officer.
“She said, ‘Don’t shoot the messenger, but on orders of the governor’s office, I went to the State Ethics Commission and they have ordered you to recuse yourself.’
But it turns out that the Roth lied – the State Ethics Commission did NOT issue the Recusal Order:
From here, the case grows murkier still. On Wednesday I called the attorney general’s office, and a spokesman, Leland Moore, sent an email reply. We advised Mr. Lloyd to recuse himself, he noted, and recommended that he consult with the State Ethics Commission.
The Ethics Commission, Mr. Moore noted, “apparently made the same determination.”
I called the Ethics Commission, and its executive director said this was not true. “We haven’t made such a determination,” said Peter Tober, the executive director. “It came from the attorney general or the Pinelands ethics officer.”
For engaging in a pattern of inappropriate, biased, and/or incompetent behaviors in support of this pipeline and contrary to professional standards and the public interest, Ms. Roth must go.
II) Persistent Agitation and Organizing Won the Day
News reports highlight recent developments that influenced the vote:
1) the letter from 4 prior Governors opposing the project;
2) As I previously wrote, the GWB scandal that weakened Gov. Christie’s ability to crack the whip on Pines Commissioners; i.e. here’s WNYC’s take on that:
The pipeline project had been expected to pass after an outspoken critic of the plan who serves on the Commission recused himself from the discussions, under pressure from the Christie Administration. But Tom Johnson, Energy and Environment Reporter for NJ Spotlight, says the vote outcome might just reflect a new reality for the Governor.
“The commissioners were less intimidated by the Governor because he’s been weakened by this whole scandal,” said Johnson, “and they don’t think he can intimidate him as much as he has in the past.”
3) the NY Times coverage of the Ed Lloyd recusal and linkage to Christie’s penchant for intimidation and retaliation to enforce his political agenda.
While no doubt all 3 of these recent development played a role, as usual, the media heavily credit the elite intervenors, while ignoring the role of the grassroots activists, who drove the debate for months.
The persistent agitation by hundreds of activists is what led to the letter from the Governors.
Activists forged a powerful alliance of a disparate group of local residents; (“Don’t Gas the Pines”) anti-fracking activists; climate change activists (350.org); Pinelands conservationists under the banner of the Pinelands Preservation Alliance; state environmental groups; scientists, artists, and alternative and social media types.
This broad coalition of activists and their persistence and aggressive tactics are were what forced the media to cover the issue.
That news coverage, much of it critical and fueled by the strong arguments of the activists, led to 5 editorials opposing the project.
Leading the journalistic effort was veteran reporter Kirk Moore of the Asbury Park Press. The APP was the first to editorialize against the project. They deserve praise for their excellent reporting and enlightened editorial vision.
The news coverage and editorials presented the debate to a larger statewide audience, creating the space for the Governor’s to weigh in on the debate.
Similarly, it was the activism that led to the NY Times coverage and it was the activism that assured that any strong armed tactics by Governor Christie would be exposed.
This is not a chicken and egg issue – the activism and the activists are what drove events.
III) Christie arrogance and abuse
Based on press reports, we know that the Gov. Office engaged in highly inappropriate activity at the Pinelands Commission.
There needs to be investigation into exactly who from the Gov.’s Office called Ms. Roth regarding the Ed Lloyd recusal.
That investigation should also review the role of Executive Director Wittenberg and Counselor Roth, both of whom poorly served the Commissioners and acted well outside their responsibilities to usurp the Commission’s policymaking powers. I’ve documented multiple examples of that abuse here –
Most significantly, the Commission needs to review how it came to be that staff controlled and made the huge policy decision regarding the MOA review procedure, instead of the waiver path.
This review also would include getting transparency and control over staff’s interaction and agreements with other State agencies, like BPU and DEP. Based on my review of the chronology of the review process, it is clear that expectations were formed and understandings were reached by staff with applicants (“agency capture”) and other State agencies, including BPU, DEP, the AG’s Office, the Gov.’s Office, and the State Ethics Commission.
It is abundantly clear that several important agreements were reached at the staff level, without public transparency and the knowledge, support and approval of the Commission. (for more examples, see this)
IV) Recusal issues
Commissioner Lloyd was not present, but he had a statement read into the record. I’ll try to get a copy and post a link. [Update – here is Lloyd’s statement – h/t John Cushman].
Basically, LLoyd said he only recused himself because he was told by Ms. Roth that the State Ethics Commission has rendered an opinion ordering his recusal. That is not accurate – the Ethics Commisision has not acted.
Given the false guidance he was given, Lloyd is appealing the matter.
THis is a totally unacceptable situation that warrants investigation by the Pinelands Commission , the Ethics Commission, the NJ Bar Association, and the media.
WIth respect to PEER’s complaint to the State Ethics Commission, again, there are troubling questions raised by the actions of Ms. Roth.
Both Commissioners targeted by that complaint read statements into the record that they had consulted with the Attorney General’s Office and Counsel Roth (the Commission’s ethics liaison) and were told that no conflict of interest existed.
But, PEER filed the complaint to the State Ethics Commission. Under NJ’s ethics law, they are the body that renders a decision in this matter, not Ms. Roth or the AG’s Office. Why were Roth and the AG’s Office even involved? What is the status of the State Ethics Commission’s decision on the PEER complaint?
V) Role of Pinelands Managers
The Pineland Commission is an independent regulatory agency.
Executive Director Wittenberg and Counselor Roth work for, report to, and follow the policy set by the Commisision, not the Governor’s Office.
Yet, on numerous issues, Wittenberg and Roth were either way out front of the Commissioners and making policy decisions, or were following directions from the Gov. Office (the Roth/Lloyd recusal issue is just one where we KNOW there was inappropriate Gov. office intervention.)
The Commission needs to get staff under control.
When I discussed this matter with one Commissioner and asked him to reign in Wittenberg and Roth, he declined to do so and replied that Wittenberg was appointed by the Gov.
VI) Improving the decision making process
There were several problems revealed during this debate – here are some of the key flaws that must be fixed:
1) the pre-application and review process suggests agency capture – far more transparency and public participation are required for major projects;
2) the Commission relied far too heavily on information submitted by the applicant and lacked independent science and technical review
3) The Commision lacks policies, standards and methods for reviewing a MOA and determining “equivalent protection”
4) The Commission lacks any policy, standards, or science for evaluating impacts of climate change and planning for adaptation or emission mitigation;
5) There are ineffective procedures to address complex projects or inter-governmental coordination issues;
6) The Commission abused the OPRA public records law and failed to disclose all public documents.
VII) Next steps
1. Build on success
Given the good working and personal relationships forged and the success of the coalition that created this victory, there should be an effort made to organize this group and develop a larger strategy and agenda for the Pinelands and south jersey region.
This organizing can help us cement this MOA victory and begin to play a role is shaping a larger debate on the future of the region.
2. Wittenberg and Roth must go.
3. The Pinelands CMP needs to be strengthened
4. Climate change and alternative energy needs to a a priority focus.
5. Outreach to labor could expand coalition efforts and dampen future conflicts
Commissioner Jackson (center, speaking) showed leadership and integrity
