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In Her Own Words: Wittenberg Won’t Tell Public What She Really Thinks

“I would never say that with the real public here”

Now that Pinelands Executive Director Wittenberg herself has confirmed that she controls the fate of the South Jersey Gas pipeline and there will be no local reviews or public hearings to challenge her decision, I thought the public should know exactly what Ms. Wittenberg thinks about pipelines in the Pinelands.

Recall that, in a July 24, 2015 letter, Wittenberg wrote:

With regard to the Commission’s review process for the pending application, Commission staff is reviewing the application in accordance with the standards of the CMP at N.J.A.C. 7:50-4.2 There is no provision for a public hearing or a public comment process for non-public applications, until after issuance of a local approval and then only if the Executive Director determines that such local approval raises substantial issues as to the conformance of the proposed development with the minimum standards of the CMP.

In light of those powers, listen to what Wittenberg really thinks and how she thinks.

Blunt Remarks Caught On Tape

Back during the 2013 pipeline debate, Wittenberg was caught on tape advising the Commissioners. She was unaware that the conversation was being taped and thought they were in a secret executive session (download and listen to the whole thing, there is a LOT of interesting stuff said. You will get a message that “Google can’t scan this file for viruses”.  Don’t worry, I assure you that the file is safe).

Earlier during the public hearing, I had criticized the Commission’s pre-application conferences with South Jersey Gas, which had gone on for over a year with virtually no public awareness. I noted that this kind of process created “agency capture’.

During the taped session, Commissioner Lloyd agreed with me.

Lloyd said “I’m much closer to Bill Wolfe on this … it does bias things … taints the process” – and, like a red flag before a bull, that set Wittenberg off.

Wittenberg immediately and aggressively challenged Lloyd. Amazingly, she begins by citing her prior role as lobbyist for the NJ Builders Association to attack Commissioner Lloyd.

Wittenberg said:

In a previous life when I worked with the Builders Association, the builders get ballistic about that [i.e. transparency and public disclosure of pre-application meetings] because they may not have even bought the property yet, and they’re coming in to find out about requirements. …

But the thing that Bill [Wolfe] said that I wanted to remind you all of is that, Stacy [Roth], month after month after month, went on the record warning you: the pipeline project was coming. The public was here. We did not keep this a secret. It’s not my fault they missed it. But I really resented that and I resent Bill Wolfe saying it because he doesn’t know what we do. (starts at time 2:30)

Wittenberg later again disagreed with and challenged Commissioner Lloyd who had again agreed with my prior testimony regarding the Commission’s jurisdiction over climate change impacts. No wonder the Christie Machine took Lloyd out.

The issue arises during a wide ranging and ill informed rant by Counselor Roth about “science” and “dueling experts” (starting at time 8:10).

Wittenberg’s sidekick, Counselor Roth, claims that the Commission has no jurisdiction over climate.

Commissioner Lloyd immediately disagrees with that. Immediately, Wittenberg interjects, like a schoolyard “na na na na boo boo” spat, and immediately disputes Lloyd – it is amazing:

(Roth) – Whatever they [the public] throw out, we then have to start with the premise, is it even science to begin with. Is it even relevant to the issues you have to look at, because climate change is not within your jurisdiction.

(Lloyd) – I can make an argument that it is.

(Wittenberg) – We have no standard. We have no standard.

(Lloyd) – The point is well taken, but we have no standards about what constitutes an equivalent level of protection either.

But, saving the best for last, here is what Wittenberg thinks about pipelines (time 11:26):

I can get up there and tell you that there are places in the Pinelands where we have many, many, many, many, many, many, miles of natural gas pipeline that has been put in – and we can go out and look at what the effects were of those.

But I would never say that with the real public here because I’m already the one whose been (unintelligible)

Ah, but what’s another 22 miles of additional pipeline – no biggie, eh Nancy?

That comment is followed by a lot of trash talk, which included a Commissioner calling public criticism “all that nonsense“. Prior to that insult, another Commissioner referred to the public as “Kindergardeners” (this elicits giggles) and another said “I don’t care what the public thinks” and another Commissioner said “I don’t really care what they think“. (verbatim, listen yourself)

After all this, Wittenberg was obviously wound up and feeling confident:

(Wittenberg) – We’ll have South Jersey Gas at the next P&I meeting.

I will unfortunately be out of the country I’m sure (huge laugher).

And after that presentation, you can decide what you want to do.

Fun times in the Pines.

And I wonder if Wittenberg still thinks that I don’t know what the Commission does?

Staff Signal Reversal of Finding That SJG Pipeline Violates the CMP

BPU Soon To Have Exclusive Control Over Pipeline Approval

“Private Development” and “BPU Pre-emption” cut public out

Executive Director Abuses Delegated Authority To Usurp Commission

mu·ti·ny/ˈmyo͞otnē/ noun – an open rebellion against the proper authorities

Documents show that Pinelands Commission staff, directed by Executive Director Wittenberg, is considering  a reversal of their prior finding that the South Jersey Gas pipeline violated the Comprehensive Management Plan (CMP), paving the way for staff to assume unilateral control over the SJG approval, with no public hearings or role of the Pinelands Commission.

It’s a mutiny (assuming you agree that the Executive Director reports to and serves the Pinelands Commission, and that the Commission is accountable to the public and should make decisions after a public process) – and a conspiracy too. Follow me.

SJG Strategy

It’s been obvious from the start that South Jersey Gas’ (SJG) strategy in the Pinelands is to create a public appearance (AKA a cover story) that “new information” and minor changes in the pipeline route justify reconsideration and reversal of the Pinelands Commission’s prior decision not to approve the project.

To make a long story short, the pipeline failed because the Pinelands Commission staff found the pipeline violated the Comprehensive Management Plan (CMP) because it was inconsistent with the Forest Area standards, which prohibit infrastructure unless it “primarily serves only the needs of the Pinelands”  (see: NJAC 7:50-5.23 (b)12).

So, just what does “primarily serve only the needs of the Pinelands” mean?  Look to the SJG strategy.

The SJG strategy was revealed in the documents SJG filed to amend their original application – much of that submission focused on trying to show that the pipeline served the BL England plant, which served the Pinelands.

SJG even sought to delete the word “only” from the regulation, via a convoluted legal argument, to weaken the standard – serving “only” the needs of the Pinelands is a far more stringent standard than serving “primarily” the needs of the Pinelands.

The SJG strategy was again revealed at the BPU public hearing, where SJG hijacked the hearing and provided 40 minutes of “expert” testimony that highlighted how the project allegedly benefitted the Pinelands.

BPU’ is a co-conspirator

Most recently, the Board of Public Utilities went along with the SJG strategy, by including “findings” in their July 23, 2015 approval order that are specific to the Pinelands, but have absolutely nothing to do with the BPU’s own rationale and legal basis for approving the pipeline.

Briefly, BPU “found” that the BL England plant served 39 of 53 municipalities in the Pinelands. What relevance does that have to BPU’s legal mandate to review pipelines? Nothing.

But, as we shall see, it has plenty to do with the Pinelands review and is obviously intended to promote SJG’s strategy to convince staff to reverse the prior finding.

BPU also “found” that the electric power generated by BL England plant would be distributed directly to the Pinelands via the regional grid:

 [b]ased upon the way that energy flows in the transmission system –to the nearest consumer unless redirected– energy produced by B.l. England would ordinarily go through the grid to customers of ACE.

Again, that BPU finding has absolutely nothing to do with BPU’s role, but it has a lot to do with the Pinelands Commission staff’s finding.

The Horner Letter signals Mutiny and reversal of prior staff finding

Pinelands staff follow the orders of Executive Director Wittenberg.

I begin with that observation because I don’t want to criticize individual staff members who are following Wittenberg’s Ahab-like orders (following Gov. Christie’s Orders).

Recall that Charles Horner, Director of Regulatory Programs at the Commission, had a highly unusual lapse in memory. Amazingly, he said he could not recall if the Pinelands staff determined that the SJG pipeline violated the Forest Area standards of the CMP. (See: The Pinelands Commission’s Immaculate Finding)

Now, in a July 29, 2015 letter to SJG, Horner reveals that the staff are considering reversing that critical finding that he could not recall them even making.

Specifically, Mr. Horner echoed the BPU tactics almost verbatim.

In an unusual and totally inappropriate move, Horner took it upon himself to review various data sources to conduct his own analysis.

Mr. Horner then concluded – and advised SJG – that Atlantic City Electric (via the BL England plant) served 32 Pinelands municipalities (BPU Order said 39) and 69% of Pinelands residents.

Who told Mr. Horner to conduct an analysis to determine what percentage of Pinelands residents are served by Atlantic Electric? Was he trying to correct BPU’s error? Was he correcting SJG’s application?

Horner then asked SJG if SJG would (please, oh pretty please!)

Please indicate whether you concur with this analysis.

Obviously, Mr. Horner should not be conducting this “analysis” and he certainly should not be asking SJG to concur with it.

Further revealing the mutiny, Mr. Horner’s July 29 analysis is very similar to the July 23, 2015 BPU findings and  – just like the BPU “findings” – has absolutely nothing to do with the “reliability” issue Horner chose to engage.

Again, just like the BPU findings, Mr. Horner’s analysis can only be used by SJG to support their argument that the pipeline and BL England “primarily serve only the needs of the Pinelands”

The Wittenberg letter confirms the mutiny

The press has written several stories critical of the fact that the new SJG project was changed to a “private development” project and that under Pinelands rules, such projects do not go before the Commission for a vote or trigger any public hearings at the Commission.

Environmental groups have expressed outrage over this.

The Pinelands Preservation Alliance, as well as myself and others, have written and testified to the Commission, asking that they clarify the process for review of the new SJG application and that they hold public hearings in the event that rules do not require them.

Executive Director Wittenberg just responded to PPA’s letter, and she not only confirms that there will be no public hearings, but seems to relish in that fact as she asserts her own power. In a July 24, 2015 letter, Wittenberg wrote:

With regard to the Commission’s review process for the pending application, Commission staff is reviewing the application in accordance with the standards of the CMP at N.J.A.C. 7:50-4.2 There is no provision for a public hearing or a public comment process for non-public applications, until after issuance of a local approval and then only if the Executive Director determines that such local approval raises substantial issues as to the conformance of the proposed development with the minimum standards of the CMP.

Even worse, Wittenberg, with impunity, states that Pinelands staff would be working with the BPU, the agency that approved 3 Orders in support of the SJG pipeline and has virtually ignored the Pinelands Commission and acted prematurely to issue BPU approvals in advance of the Commission’s review as a way of pressuring the Commission to approve the SJG project:

As you know, a Certificate of Filing is not an approval. Rather, it allows an applicant to proceed to obtain all requisite local and state approvals. See N.J.A.C. 7:50-4.34 and 4.81(b). In this instance the applicant has relied on the provision of the Municipal Land Use Law at N.J.S.A. 40:55D-19. This provision allows a public utility, for a project that extends into more than one municipality, to obtain its development approval from the Board of Public Utilities (BPU) instead of the municipalities. The Commission will work with the BPU to ensure that any order issued by the BPU is consistent with the minimum standards of the CMP. Specifically, the CMP at N.J.A.C. 7:50-4.82 through 4.84 provides a process for Commission input and review of applications submitted to any department, board, bureau, official or other agency of the State of New Jersey.

Let me translate that paragraph.

SJG petition to preempt municipal review seals the deal

SJG petitioned BPU to pre-empt municipal reviews under the land use law. These municipal reviews satisfy compliance with the Pinelands CMP.

In fact, the BPU has not yet approved the SJP preemption petition request, so it is obviously premature for Wittenberg to rely on that as part of the Commission’s review process.

But, even worse, as Wittenberg’s letter notes:

This provision allows a public utility, for a project that extends into more than one municipality, to obtain its development approval from the Board of Public Utilities (BPU) instead of the municipalities.

Follow this closely for what that means, because it is amazing:

That means that BPU is the ONLY entity reviewing and approving the SJG pipeline regarding compliance with Pinelands CMP!

The same BPU that has already issued 3 Orders approving the SJG pipeline project!

The same BPU that has promoted the pipeline and issued approvals PRIOR to the Pinelands Commission’s review that undermine the Pinelands Commission’s review process.

The same BPU that has no staff expertise – they wouldn’t know a tree frog from Kermit the frog.

No one envisioned such an absurd outcome when they wrote the CMP rules on private development.

The interaction of the CMP private development and the BPU preemption provision creates a total vacuum in review.

That can not stand and must be stopped.

(cited documents provided upon request – I have them as PDF’s not links).