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Pinelands Commission Signals Fast Track Approval of Controversial Pipelines

Despite Rebuke By Court, Dirty Tricks Repeated With Impunity 

Intimidating Corpo-Union muscle flexed in support of pipeline construction jobs

Source: Michelle Brunetti, Press of Atlantic City (12/9/16)

Georgina Shanley, CURE – Wolfe in background. Source: Michelle Brunetti, Press of Atlantic City (12/9/16)

Unfortunately, it is not possible to respect a Commission that defies law, refuses to comply fully with an opinion of the Court, allows the Gov.’s Office and Executive Director to walk all over them, and ignores the public by rubber stamping a corrupt political deal that undermines the integrity of the Commission, violates the CMP, and accelerates destruction of the climate of the planet.

I immediately knew it was bad.

I arrived a half hour early for the Pinelands Commission’s regularly scheduled meeting on Friday (12/9/16), but already the parking lot and lobby were jammed and a long line of corpo-union guys snaked out the door.

I got in line behind the $600 suit lawyer and lobbyist for BL England power plant owner RC Capital, John Valeri, former Counsel in Gov. Whitman’s Office and of the notorious law firm Wolff & Samson.

Last Friday (12/9/16) was the first meeting of the Pinelands Commission after a huge legal victory for environmental opponents of the South Jersey Gas (SJG) pipeline through the Pinelands.

It was widely anticipated that the Commission would have an in depth public discussion about whether to appeal the Court’s decision; how to comply with the Court’s decision; and how to control their rogue Executive Director.

That did not happen – just the opposite. (read Press of Atlantic City’s coverage)

Last month, on Nov. 7, 2016 the NJ Appellate Division agreed with a lawsuit filed by environmental groups and ruled that the Executive Director of the Pinelands Commission had violated law and illegally unilaterally approved the controversial South Jersey Gas pipeline. (read the opinion)

Upholding the integrity of the Pinelands Comprehensive Management Plan (CMP) and the power of the Commission, in strong language the Court found that Executive Director Wittenberg had illegally usurped the powers of the Commission.

In a strong rebuke to Gov. Christie’s strong armed tactics exercised through his appointed puppet, Executive Director Wittenberg, the Court stressed the need for the Commission to make the decision:

the CMP does not confer on the Executive Director or the Commission’s staff the authority to render final decisions on CMP compliance in these circumstances. There also is no provision in the Pinelands Act that confers upon the Executive Director authority to render a final decision for the Commission in the coordinated permitting process.

Here, the Commission retains final decision-making authority as to whether SJG’s proposed pipeline is consistent with the minimum standards of CMP. Indeed, as we have pointed out, the CMP states, “the Commission bears the ultimate responsibility for implementing and enforcing the provisions” of the Pinelands Act and the CMP. N.J.A.C. 7:50-1.11. The Commission therefore retains “ultimate responsibility” under the CMP to review the proposed project and render a final decision on CMP compliance.(@ p.22)

The Court rebuked the BPU and Pinelands Commission for allowing the Executive Director to usurp their powers:

We note that, in this matter, the Board did not make a factual finding on the critical issue of whether SJG’s pipeline is “intended to primarily serve only the needs of the Pinelands” and therefore a permitted use in the Forest Area. The Board merely relied upon Wittenberg’s decision on this issue, and on that basis, its approval of SJG’s MLUL petition complied with N.J.S.A. 13:18A- 10(c).

The Court noted the importance of an open public process and the need for an opportunity for the public to comment before the Commission made the decision.

The Court remanded the SJG case back to the Commission and ordered the Commission to conduct a public process and determine whether additional evidence and public hearings were required , whether to refer the matter to the Office of Administrative law, and to determine if the proposed pipeline violated the Comprehensive Management Plan (CMP):

The Commission shall determine whether to review the Executive Director’s decision based on the factual record developed before the Board, or whether the parties should be permitted to present additional evidence on the question of whether the pipeline is consistent with the minimum standards of the CMP.

The Commission also shall determine whether to refer the matter for a hearing before an Administrative Law Judge (ALJ).

Pipeline opponents – including myself – had claimed that Wittenberg’s decision was NOT based on the facts and the CMP, but rather was dictated by Gov. Christie’s Office and written by lawyers for SJG. Wittenberg over-rode and reversed her professional staff’s prior finding that the SJG pipeline was inconsistent with the CMP. The fact that the Court directed the Commission to consider whether Wittenberg’s decision was based on the “factual record” lends strong credence to these criticisms of political intervention and corrupt decision-making by Wittenberg.

Given the strong rebuke by the Court in finding that the staff had illegally usurped the Commission’s powers and essentially hijacked a public process, it is remarkable how the Commission responded to the Court’s decision.

The Commission:

  • Failed to put the matter on the meeting agenda
  • Failed to mention the issue during the Executive Director’s public briefing (monthly Report)
  • secretly discussed the matter in Executive Session
  • invoked attorney – client privilege to shield those discussions from the public or open public records laws;
  • approved, with [***very little] discussion or public comment, two Resolutions that formalized the public process to respond to the Court’s remand. The Resolutions were drafted before the hearing, but not made available to Commissioners or the public for review prior to the vote.

Instead of a public discussion, Gov. Christie’s installed Chairman Sean Earlen (R-Burlington) blindsided and strong armed his fellow Commissioners and the public and strong armed a fast track approval process.

Remarkably, Earlen and Gov. Christie’s Deputy Attorney General invoked exemptions in the Open Public Meetings Act for discussion of “litigation” and invoked Attorney Client privilege as justification to adjourn to a secret Executive Session to discuss how to respond to the Court’s decision and develop a plan going forward.

Here is the text of the Resolution.

Here is the public notice and information on public comment and the public hearing:

Pursuant to Pinelands Commission Resolution PC-4-16-42, the Pinelands Commission is providing notice of the public’s opportunity to provide comment concerning the Commission staff’s determination (i.e. the August 14, 2015 Certificate of Filing; the August 21, 2015 letter to Paul Flanagan, Executive Director, Board of Public Utilities enclosing the Certificate of Filing and the December 14, 2015 letter to Paul Flanagan, Executive Director, Board of Public Utilities) to that the portion of the 22-mile, 24-inch, natural gas pipeline proposed by the South Jersey Gas Company (SJG) to be constructed within the State designated Pinelands Area (Pinelands Application No. 2012-0056.001) is consistent with the standards of the Pinelands Comprehensive Management Plan.

The Commission contradicted the explicit remand mandate of the Court.

The Court directed the Commission to  allow the public to comment on the issue of whether the SJG application, as amended is consistent with the CMP:

For the reasons that follow, we remand the matter to the Commission for further proceedings and a final decision on whether SJG’s proposed pipeline is consistent with the minimum standards of the CMP.  (decision at p.3)

Instead, the Commission’s public notice is on Executive Director Wittenberg’s determination that the proposed pipeline is consistent with the CMP, the very illegal and unauthorized determination that the Court rebuked Wittenberg for. 

In perhaps the only good news of the day, the Commission agreed that the COurt’s opinion would be precedent to challenge the proposed “Southern Reliability Link” (SRL) proposed pipeline through the Pinelands that Wittenberg also illegally approved. But effectively, all that really does is avoid the delay of litigation and accelerate the Commission’s attempts to ram new approvals through.

At the conclusion of the Commission’s hearing on Friday, Vice-Chairman Galletta admonished the public to conduct themselves with “respect” for the Commission and staff going forward.

Unfortunately, it is not possible to respect a Commission that defies law, the Courts, and ignores the public by rubber stamping corrupt political deals that undermine the integrity of the Commission, the CMP, and the climate of the planet.

*** correction – 12/16/16

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