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Lawyers for South Jersey Gas wrote their own ticket

The public debate over behind the scenes involvement during the Pinelands Commission’s review of the South Jersey Gas Co. (SJG) proposed gas pipeline revealed by a trove of emails, officially kicked off yesterday at the Commission’s hearing (we wrote about that here).

[*Readers are strongly encouraged to read the emails to get a flavor of the conversation that was going on behind the scenes.]

Today, I want to focus on the involvement of SJG and how SJG and the Christie Administration defenders on the Commission are trying to spin and justify this outrageous conduct, which is far beyond traditional “agency capture” abuses.

During yesterday’s hearing, Commissioner (Zeke) Avery tried to defend the involvement of SJG and the behavior of Executive Director Wittenberg and Counselor Roth. Avery not only defended their actions, but he called for even more “communication” with applicants before the Commission.

It was obvious that he – and others – are seeking to dismiss all this as a routine practice of sharing of information.

But, as Commissioner Lloyd objected and made clear, that is NOT what happened here. This had nothing to do with sharing information.

It was about a private corporation writing the terms of a regulatory document that governed their conduct and economic bottom line.

That same Avery spin is repeated in the news today – apparently Executive Director Wittenberg even issued her own self serving press statement attacking critics of her actions.

David O’Reilly from the Philadelphia Inquirer writes a good story, see: Agency and utility under scrutiny for proposed Pinelands gas pipeline:

As we’ve written previously,  there were at least 3 options raised by the review of the SJG application. The Commission could have: 1) denied the application outright for inconsistency with the forest standards; 2) chosen to review it under the Waiver rules; or 3) to negotiate a MOA.

Those options should have been discussed publicly before any discussion with SJG on a MOA.

The decision to explore and negotiate a MOA is a significant policy decision that should have been made by the full Commission BEFORE Wittenberg and Roth negotiated with SJG. Certainly, Wittenberg and Roth should have kept the Commission – and the public – fully apprised of their negotiations.

But, while we suspected this all along, we now know that didn’t happen. O’Reilly wrote:

Some members of the policy and implementation committee said after their monthly meeting that they were unaware until recently of the extent of e-mail exchanges between commission executive director Nancy Wittenberg, commission counsel Stacey Rhodes (sic), and the law firm of Cozen O’Connor, which represented South Jersey Gas, starting in 2012.

“I certainly didn’t know about them,” longtime Commissioner Edward Lloyd, a professor of environmental law at Columbia University, said after the vote. “I think we should have.”

[*Uh Oh Ed, better be careful not to violate that gag Commissioners are under!]

The public certainly should have known as well:

Among the half-dozen members of the public who spoke Friday, Bill Wolfe of Bordentown urged the commission to “impose a moratorium” on all such MOAs while it reviewed the waiver process.

Wolfe, a former employee of the New Jersey Department of Environmental Protection, said the e-mails among Wittenberg, Rhodes, and South Jersey Gas’ lawyers “created the appearance of ‘agency capture’ by the applicant,” and that the MOA review process had been “compromised.”

And even if the Commission and the public knew of the SJG negotiations, the emails still reveal totally inappropriate involvement by lawyers for SJG an Rockland Capital, owner of the BL England power plant.

First of all, contrary to the spin of Zeke Avery and SJG lawyers, the activities disclosed in the emails are far more than the exchange of information.

SJG and BL England lawyers were reviewing drafts and modifying the language of regulatory documents they were subject too.

This involvement and the MOA were drafted occurred long BEFORE the Commission had authorized the Executive Director to even consider a MOA and without the knowledge of the Commission or the public.

Despite the fact that a draft MOA was conveyed to Ms. Roth by SJG o March 4, 2013 and included in a BPU Order issued on June 21, 2013, the public was repeatedly told that it was premature to even discuss a MOA, when in fact there had been many months of negotiations on the terms of the MOA.

How and why did the BPU include a MOA in their June 2013 Oder, months before a MOA was even publicly discussed by the Commission?

Was that decision “transparent” – as Wittenberg claims in the Philadelphia Inquirer story?:

In a statement released later Friday, Wittenberg called the attacks “pure hyperbole” driven by agenda, and said some speakers had shown “a lack of understanding of the commission’s rules and procedures,” which she called “transparent.”

Wittenberg and Roth were way out in front of the Commission and making huge policy decisions without authorization from the Commission and contrary to their pubic statements.

Instead, it is quite clear in the emails that they both were working directly for SJG, and very likely at the direction of the Governor’s Office.

Since Wittenberg and Roth work for and serve at the pleasure of the Commission, those are firing offenses.

The emails also document extensive involvement of Gov. Christie’s Office, including direct involvement in the ethics challenge of Commissioner Lloyd, which forced his recusal. We’ll get to that issue in the next post.

 Gov.’s Office emails with Commission on controversial gas pipeline heavily redacted 

What is the Governor’s Office hiding by redactions and Privilege claims?

Bridge-Gate in the Pines

“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)

[Update below]

At the direction of the Attorney General’s Office, who invoked attorney client and deliberative process Privileges, today the Pinelands Commission passed a Resolution that bars Commission members from publicly releasing or discussing emails between the Governor’s Office and the Pinelands Commission. In other words, a gag order. And the gag is broad: it applies not only to the documents themselves, but also the information contained in the documents:

I can’t recall an AG – clearly to prevent disclosure of documents from the Governor’s Office – ever invoking these Privileges to gag an independent regulatory Commission from reviewing and talking about public documents that were already in the public record or subject to OPRA litigation.

The highly unusual move came after over an hour of strongly critical public testimony about an embarrassing trove of recently disclosed emails that show heavy involvement of the Governor’s Office, the South Jersey Gas Company lawyers, and the Executive Director and legal counsel to the Commission during the course of the controversial pipeline review process.

The emails were released recently as a result of an Open Public Records Act (OPRA) lawsuit filed against the Commission by the Pinelands Preservation Alliance – see this to read over 100 emails – many involving the Gov.’s Office were heavily redacted.

According to the Philadelphia Inquirer, today’s meeting agenda was requested by Chairman Lohbauer as a result of disclosures in the emails. Lohbauer sought to solicit public testimony and consideration of reforms to Commission rules regarding negotiations between the Commission Executive Director and counselor.

David O’Reilly of the Inquirer wrote:

Commission Chairman Mark Lohbauer said Friday that he felt compelled to make special waivers more difficult to obtain after reading recently obtained exchanges between commission staff and representatives of South Jersey Gas in 2013. 

“There was a degree of closeness between the applicant and staff that went beyond the neutrality appropriate to a review process,” said Lohbauer, a lawyer.

The e-mail exchanges, obtained in December by the advocacy group Pinelands Preservation Alliance (PPA), indicated that South Jersey Gas was “getting a lot more input from staff than many of us realized,” Lohbauer said, and that better guidelines were in order.

Carleton Montgomery, executive director of PPA, said e-mails between the commission’s executive director, Nancy Wittenberg, lead counsel Stacey Roth and lawyers for South Jersey Gas suggest the utility’s lawyers wrote large parts of the language of the waiver, called a memorandum of agreement, that they were seeking to obtain.

The hearing today was videotaped and we will post a link to that just as soon as it is available.

Chairman Lohbauer began the discussion by calling for the creation of a special Ad Hoc Committee to make recommendations to the full Commission regarding necessary reforms to Commission rules regarding the procedures and standards for reviewing a Memoranda of Agreement (MOA).

That move was immediately opposed by Commissioner Avery (Ezekiel cried, dem dry bones ….)

The reforms were supported by Commissioner Jackson who, referring to current MOA rules and the SJG debacle, said:

If you start things with a crooked foundation, the outcome will be slanted.

The Attorney General’s Office then interrupted Jackson to warn him and fellow Commissioners about discussing any prior MOA issues, given the currently pending SJG litigation. The AG’s Office attempted to use the SJG litigation as a legal excuse to block the Commissioners from discussing any of the controversial emails, which were all about the SJG project.

Commissioner Jackson proceeded on nonetheless and implored his fellow Commissioners:

Don’t keep making the same mistakes – we have to do the A, B, C’s of a MOA.

The discussion then shifted to whether reforms should be considered by a special Ad Hoc Committee or the full Commission, as recommended by Mr. (Zeke) Avery.

Echoing President Obama’s’ slogan “Look forward, not backward” in response to demands to prosecute the Bush Administration for war crimes on Iraq invasion, CIA torture, and Guantanamo, Chairman Lohbauer took the AG’s advise and made it clear that, to him, the discussion was not related to any prior applications but would be prospective in nature.

The Commissioners could not come to any agreement, so Lohbauer pledge to poll his fellow Commissioners and consider the matter at the next meeting, on February 13, 2015.

• Scathing Public testimony – calls for a Moratorium on MOA’s & Waivers pending reforms

The public was then provided an opportunity to testify.

I began the public session by calling for the Commission to enact an administrative moratorium on review of any new MOA’s or waivers until CMP rules were revised to prevent a repeat of the abuses disclosed by the emails.

I reminded the Commission that, even before the emails were released, that their was an appearance that the Commission staff had be “captured” by the applicant SJG.

I reminded them of my testimony back in July of 2013 urging that they put safeguards in place to prevent exactly the “cozy relationships”, “capture” and unprofessional abuses disslosed by the emails.

Now, given the emails that confirm all the public’s suspicions, the public had lost trust and confidence in Executive Director Wittenberg and Counselor Roth, given their behavior revealed in the emails, and that the integrity of the Commission was on the line in how they responded to this challenge.

Regulatory reforms should address, at a minimum: 1) Commission and staff and public review procedures, 2) the roles and responsibilities of the Executive Director and Counselor, 3) inter-governmental coordination, particularly with state agencies like BPU and DEP; and 4) most importantly, technical standards, criteria, and scientifically based  analytical methods for determining an “equivalent level of protection”, which is the current vague standard under Commission’s MOA rules, as well as Waiver standards and conditions like “compelling public need” and “no feasible alternatives”.

I was very specific in identifying exactly some of the abuses revealed by the emails, including:

1) the drafting and timing of the MOA, which was apparently written by SJG and transmitted to Ms. Roth on March 4, 2013, yet Ms. Roth stated months later, in the July 27, 2013 meeting and quoted in the Asbury Park Press that she was not prepared to discuss a MOA;

2) the role of the SJG attorney with respect to access to and undue influence on ED Wittenberg and Counselor Roth;

3) the fact that the the lawyer for SJG participated in the drafting and review of the Executive Director’s Report to the Commission, recommending approval of the MOA;

4) the fact that the lawyer for SJG participated in the drafting of response to public comments;

5) the extensive and inappropriate involvement of the Governor’s Office;

6) The involvement of the Governor’s Office in the recusal of Commissioner Lloyd, including false and conflicting statements made by Wittenberg (“we never spoke to Gov.’s Office”) and Roth (claims that Lloyd recusal was reviewed and ordered by Ethics Commission and that there was no involvement of the Gov.’s office).

Several other citizens testified.

Georgina Shanley said that what was revealed in the emails was a “betrayal” of the public and that Wittenberg and Roth should resign.

Doug O’Malley of Environment NJ was highly critical of Wittenberg and Roth, and said that the emails called into question the independence and integrity of the Pinelands Commission.

Fred Akers said the big problem was a change in MOA agreements to allow cash payments to the Commission, which create the appearance of a conflict of interest.

So, one key question as this moves forward is:

What is the Governor’s Office hiding behind the redactions and Privilege claims?

Why would the Commission not want to strengthen their rules to prevent future abuse that was revealed by the emails?

We’ll keep you posted and hope that some intrepid journalist out there can connect the dots – it seems like we are very close to echoing: “time for some ethics problems on the Pinelands Commission”

 

[Update: 1/31/15 – I want to expand on a few points:

1. CMP rules require that a MOA be with a public agency for a public purpose. The MOA was between the Commission and BPU, so what was SJG involved at all? All the SJG involvement demonstrates the illegal fraud of using BPU as MOA to cover for a private project.

2. BL England (Rockland Capital) was heavily involved as well. Why? The attorney and lobbyist for Rockland Capital was former Whitman lawyer John Valeri, now with the Woff & Samson law firm of Bridge-gate fame.

3. As I was beginning to wrap up my comments, Commissioner Ashum, who participated in the meeting via phone, started shouting several times “Time! Time!”

I responded that Ms. Ashmum should be the most concerned about this scandal, as she has served the Commission many years and the current Gov. and Executive Director and dragging her baby through the mud and she should be the first demanding that it not happen again.  ~~~ end update]

Ideas are important.

I really can’t let something as serious as this go unchallenged, so let me start this by saying that I like Senator Bob Smith. He’s bright, hard working, a nice guy, and he cares.

I first testified before him as Chairman of the Assembly Labor Committee 20 years ago, and he has served as a leader on many environmental issues in the NJ Legislature since then.

But someone must be whispering terrible lies in the Senator’s ear, because he has some very mistaken and warped ideas about John Muir and Muir’s notorious philosophical differences with Gifford Pinchot.

The simplified conventional wisdom sees Muir as the founder of the “preservation” movement and Pinchot as the founder of the “conservation” or “wise use” movement.

But Smith seems to have twisted this debate and the ideas of Muir.

Smith’s warped ideas about Muir seemed to have surfaced initially during the heated debates on Smith’s “Forest Stewardship” bill, that died in the last legislative session.

Smith used those warped ideas to dismiss critics of his pro-logging bill as some kind of extreme preservationists who didn’t want NJ’s forests touched by man. Smith invoked Pinchot’s legacy of wise use as the framework of his bill.

A few weeks ago, Smith went back to that poisoned well in sponsoring what I called crazy legislation that would allow 10 year olds to walk in the woods with guns, see:

• Senate Environment Committee Begins New Year Appeasing Animal Murderers, Gun Nuts, & The Cranberry Industry

I fear that these mistaken views will influence the upcoming debate on open space funding, particularly on funding the new “stewardship” program.

So, here’s the rub. Today, Blue Jersey posted a video interview of Smith (watch it here).

At the end of an otherwise friendly interview, with general softball questions and good hits on Gov. Christie, Smith was asked about his 10 year old gun bill, a characterization that clearly irked Smith who immediately pushed back and called the characterization  “harsh”.

But, in defending his pro-gun bill, Smith went back to the Muir-Pinchot well, and actually spouted this incredible falsehood:

John Muir believed that you set aside land and nobody should ever visit it.

I have no idea where Smith got that, but I can guess it.

Here is what John Muir actually wrote on that set of issues – just the opposite of what Smith seems to think:

The tendency nowadays to wander in the wilderness is delightful to see. Thousands of tired, nerve-shaken, over-civilized people are beginning to find out that going to the mountains is going home; that wilderness is a necessity; and that mountain parks and reservations are useful not only as fountains of timber and irrigating rivers, but as fountains of life. Awakening from the stupefying effects of the vice of over-industry and the deadly apathy of luxury, they are trying as best they can to mix and match their own little ongoings with those of Nature, and to get rid of rust and disease. Briskly venturing and roaming, some are washing off sins and cobweb cares of the devil’s spinning in all-day storms on mountains; sauntering in rosiny pinewoods or gentian meadows, brushing through chaparral, bending down and parting sweet, flowery sprays; tracing rivers to their sources, getting in touch with the nerves of Mother Earth, jumping from rock to rock, feeling the life of them, learning the sounds of them, panting in whole-souled exercise, and rejoicing in deep, long-drawn breaths of pure wildness. This is fine and natural and full of promise. So also is the growing interest in the care and preservation of forests and wild places in general, and in the half-wild parks and gardens of towns. Even the scenery habit in its most artificial forms… even that is encouraging and may well be regarded as a hopeful sign of the times. ~~~  The Wild Parks and Forest Reservations of the West (1901)

End Note: I manually transcribed the above quote from my Library of America volume on Muir’s “Nature Writings” but have since found an on line version of the complete essay posted by Sierra Club.

Virtual Media Blackout of Legislative Hearing

Most important piece of legislation since 2007 passage of Global Warming Response Act

Last Monday, the Senate Environment Committee took testimony on long over-due and important legislation S1150 (Weinberg) to address the disproportionate health risks and environmental burdens borne by those who live in NJ’s  predominately poor and minority urban communities.

DEP research has documented statistically significant correlations between those risks and burdens and race and income, see:

• DEP Discovers Discrimination
• NJ DEP’s Acceptable Air Pollution Cancer Risk Policy Is 1,000 Times Higher Than Drinking Water Risk
• Dissenting Report Rips Christie DEP Commissioner Martin On Environmental Justice
• Father of Environmental Justice Movement Speaks at Drew

The bill would mandate that DEP actually implement the series of Executive Orders, Reports, and rhetoric they have spewed for 20 years on the environmental justice issue (see this set up post: Environmental Justice Bill Up On Monday).

The bill also would force DEP to develop standards and technical protocols to address cumulative impacts of multiple pollution sources and multiple pollutants, a longstanding major weakness and loophole in DEP standards, regulations, and permit programs.

The bill would provide real power to local governments and urban community groups in the DEP permit review process, an opportunity to assure that the community benefits as NJ’s urban areas undergo redevelopment.

Finally, the bill provides a real opportunity to force integration of multiple individual DEP “silo” permit requirements and thereby greatly enhance the effectiveness of current piecemeal and uncoordinated permit review practices, leading to much greater protections for people and urban environments.

In addition, I testified that the bill could be amended to provide a vehicle to actually implement the deep 80% greenhouse gas emissions reduction goals of the Global Warming Response Act by including GHG emissions in DEP permit reviews, including new mitigation requirements to offset emissions, risks, and impacts.

Accordingly, the bill provides a HUGE opportunity to advance major reforms and improvements in overall public health protections in urban NJ and respond to historical neglect.

It would not be an exaggeration to describe this bill as the most important piece of legislation to be heard since the 2007 passage of the Global Warming Response Act.

There was some very good testimony that I strongly urge you to listen to here (hit “listen to prior proceedings” and scroll to Senate Environment Committee).

Supporters who testified on the bill included Ironbound Community Corp.; NJ Environmental Federation; Sierra Club; and myself.

But all those well funded conservation and corporate backed sustainable development groups, who constantly claim to support urban and EJ issues, and conveniently and very cynically trot out photos of black kids, were nowhere to be found.

NOWHERE.

But, not to worry, they are sure to re-emerge in Trenton soon, with their hand out, grubbing for more money from the new Open Space diversion disaster they created.

[Update: I just visited the Keep it Green website to download a copy of another photographic example of how conservationists use people for their own selfish interests and could not find what I was looking for: i.e. THIS PHOTO, which I wrote about recently on Jan. 4, 2015 in the context of a story on urban children’s lead risks: (another critical urban issue conservationists are AWOL on)

And of course, folks might want to recall this Keep It Green Coalition ad – just another example of propaganda and lies that mask exactly what the ballot question would do, which was to transfer funds away from urban areas to wealthy rural & white suburbs, while slashing DEP toxic site cleanup and water resource program funds – emulating the tactics, just like the childhood lead program diversion.

Keep It Green Open Space ad – perhaps one of the most disgustingly cynical and misleading ads ever

 

Corporate Water Privatization Bill Backed By Secret Sponsors

I saw this as anonymous banner ad at NJ Spotlight last week. (click here for full add)

I immediately sent an email and asked Spotlight folks who was paying for it and got no answer.

Today, I saw it at NJ.Com – and again asked myself:  who is paying for this ad to privatize NJ water systems?

Shouldn’t that fact be disclosed as part of the ad?

Don’t the people of NJ deserve to know the source of this political advocacy?

Contrary to the ad, we strongly oppose the bill now on Governor Christie’s desk.

We are seeking a veto and urge all readers to contact the Gov. at 609-292-6000 to ask for a veto of the bill.

Here is background on the legislation for those interested:

• Democratic Legislature Supports Water Privatization 
• Privatization Bill Would Da Nothing To Address Crumbling Water Infrastructure and $40 Billion Deficit
• Wide Range of Critics Blast Democrats’ Water Privatization Bill
• Why Are NJ Democrats Trying to Privatize Public Drinking Water & Sewer Systems?