WolfeNotes.com

Another inappropriate venue at the wrong time

The Commission may think that they are tamping down public anger, when in fact their failure to hold a formal “public hearing” – in the traditional evening hours – and conduct an adequate environmental review of the pipelines is stoking even more protest and opposition.

Once again, the Pinelands Commission – the gang that can’t shoot straight – has engaged in a last minute bait and switch on a controversial pipeline meeting schedule and location.

Yesterday afternoon, about 3 hours after I posted on their earlier morning meeting, the Pinelands Commission issued a Public Notice cancelling the scheduled February 10 meeting at Commission HQ and rescheduling it on February 24:

No progress on climate change or Ecological limits on water use

Corporate pipeline companies subsidized

Gov. Christie’s Office still blocking reforms

South Jersey Gas pipeline station – “somewhere” in the Pinelands

[Update below – 2/10/17 meeting rescheduled!]

The Pinelands Commission’s Personnel and Budget Committee met briefly this morning (see this for agenda and information). Note that the agenda also included a briefing on “application fees update”.

So I thought it was a good opportunity to talk about staff shortfalls, management problems, and lack of adequate budget/resources, particularly as they relate to:

1) a severe staff shortfall (22 vacant, un-budgeted positions); and

2) extensive delays in vitally important work that’s not getting done, like climate change and amendments to the Comprehensive Management Plan to implement the Commission’s Kirkwood-Cohansey study.

The Pinelands Commission has been bogged down in controversial pipeline debates for almost 4 years now. During that time, they have invested considerable staff time in reviewing pipeline applications and responding to public concerns.

During that four year period, crucial work is not getting done, including these priorities I suggested that they focus on last year:

1. Rescind delegation of power to the Executive Director to make unilateral decisions on major issues

2. Impose a moratorium on review of fossil infrastructure until a climate & energy  policy is adopted in the CMP

3. Restrict water use to protect ecosystems – implement the long delayed Kirkwood-Cohansey Study

4. Amend the CMP to adopt a map where motorized vehicles are prohibited

5. Put teeth in the new MOA policy by adopting standards to define equivalent protection – codify in CMP

I want to briefly update folks about what went on this morning with respect to items #3 and #5, including an important new issue that emerged about whether the Commission collects application fees to fully recover their oversight costs.

No action on climate change

Regarding climate change, the Commission pledged, in the Fourth Progress Report on Plan Implementation (September 2014:

The Commission will evaluate what options are available to address climate change through the CMP and in cooperation with other agencies. 

Today, in response to my concerns about a lack of progress on the climate front, Executive Director Wittenberg admitted that nothing was getting done on climate (or energy).

That is particularly unacceptable, given another record warm year and mild winter, which is sure to have ecological impacts on Pinelands forests and aquatic ecosystems. 

That lack of progress is deep troubling, especially given that on November 18, 2015, State Climatologist Robinson briefed the Commission staff and the public on climate change issues as part of the Commission’s science program series. That meeting stimulated positive discussions about exploring how the Commission’s science program and Rutgers’ climate programs could work together to develop climate impact monitoring in the Pinelands, see:

• Exploring NJ Climate Variability and Change

Extensive delays and little progress in setting ecologically based limits on water use

Regarding amendments to the CMP to implement the Kirkwood-Cohansey study. Wittenberg said work was getting done, but very slowly.

My guess is that the delay is a result of Gov. Christie’s anti-regulatory policy and the political power of the builders, more than a lack of staff.

Gas corporations subsidized, despite massive budget shortfalls

I then asked the Commission, given budget shortfalls and 22 unfunded positions, two key questions:

1) what was the Commission’s application review fee policy with respect to recovering 100% of the Commission’s costs of reviewing the South Jersey Gas and NJ Natural Gas pipeline applications?

2) Did the Commission have an estimate of the total costs of those application reviews, actual application fees received from SJG and NJNG, and whether subsidies were being provided to SJG and NJNG?

Wittenberg replied that the Commission does not seek to recover 100% of staff review costs in application fees.

Wittenberg noted that a CMP amendment draft rule proposal was submitted to the Gov. Christie’s Office to increase current application fees to recover just 75% of review costs. The Gov. Office has not approved that draft proposal. (recall that Christie vindictively vetoed the minutes to block an approved staff raise).

I previously wrote about how the Gov.’s Office was blocking Commission CMP amendments, and violating rule-making procedures of the NJ Administrative Procedure Act. The Commission is not legally required to seek the Gov. approval before proposing a CMP amendment – this is another abuse of Christie’s Executive power.

Wittenberg had no data or estimate of total staff review (hours or costs) and related Commission costs of the review of SJG and NJNG pipeline applications, and simply refused to respond to my questions about subsidies.

So, at a time when the Commission has a bare bones budget, 22 unfilled professional science and technical positions, and is making little or no progress on critical issues due, in part, to a lack of staff and resources, I find it outrageous that deep pocketed corporate polluters like South Jersey Gas and NJ Natural Gas are being subsidized by the Commission’s budget and taxpayer money. 

Finally, I complained about the fact that the Commission has spent over $62,000 on labor lawyers to respond to workplace employee disputes. I noted that this was another sign of management problems that needed to be resolved.

The Commissioners were generally supportive of my concerns, but made no effort to direct Wittenberg to respond to them or otherwise take any action, as a Commission, to address them.

The full Commission next meets on *****Friday, February 10 at 9:30 am at Commission HQ- be there and be sure they do not rubber stamp the SJG pipeline! (*****NOTE: about 3 hours after this was posted, the Pinelands Commission rescheduled, see below:

[*****Update: Notice

The Pinelands Commission’s regular meeting, originally scheduled for Friday, February 10, 2017 at 9:30 a.m., has been canceled and rescheduled for Friday, February 24, 2017 at 9:30 a.m.  The meeting will be held at the Crowne Plaza Philadelphia-Cherry Hill in the Grand Ballroom. The address for the Crowne Plaza is 2349 West Marlton Pike, Cherry Hill, New Jersey.

The Pinelands Commission’s Policy and Implementation Committee meeting, originally scheduled for February 24th, has been canceled and rescheduled for Friday, March 10, 2017 at 9:30 a.m. This meeting will be held at the Commission’s offices at 15 Springfield Road, New Lisbon, New Jersey. In order to accommodate the rescheduled Policy and Implementation Committee meeting, the Commission’s regular meeting scheduled for March 10, 2017 has been canceled.

Protests Mount As Pinelands Commission Scheduled to Meet on February 10

Protesters at BL England plant site (2/4/17)

Today, in brisk 20 degree wind chill weather, over 100 Pinelands defenders held a protest march along the route of the proposed South Jersey Gas (SJG) pipeline through the Pinelands.

The march – with support from the Bus for Progress and a lengthy car caravan – began at the BL England power plant – slated to receive gas from the pipeline –

BL England plant – Beesley’s Point, NJ

After a rally by the plant, the group moved to Tuckahoe.

protesters march in Tuckahoe, NJ

The event culminated in a Pinelands forest tour to observe sensitive natural resources that would be impacted by the pipeline – in Peaslee Wildlife Management Area.

The event was held after over 100 people were forced to stand in the cold rain last week outside of a Pinelands Commission meeting on the pipeline in Browns Mills, see:

• More Than Half Refused Entry at “Public” Meeting of Pinelands Commission

Bill [Wolfe], the gentleman with the loud voice, tells me that it is getting close to the point where more direct action, such as creating a Pinelands version of Standing Rock, may be necessary. “They can’t vote on it today. But the next meeting in February, they’re going to approve it, guaranteed. The only thing we have left is direct action and civil disobedience…. The only other thing we have is lawsuits.”

As a result of public outcry, the Pinelands Commission was forced to extend the public comment period until February 8, in a desperate attempt to fix major legal flaws related to denying over 100 people an opportunity to comment on the pipeline. As we wrote, that extension is a sham that does not resolve fatal flaws.

The Commission next meets on February 10 at the Commission’s headquarters – they legally could vote to approve the pipeline at that meeting. Let’s hope that protesters jam that meeting.

Clearly, opposition is growing – and growing more aggressive.

Even the mainstream press recognizes this mounting frustration – see the Philadelphia Inquirer story on today’s march:

• A South Jersey pipeline that has some opponents ‘willing to go radical’

And the Press of Atlantic City emphasized the passion:

• South Jersey Gas pipeline protesters say there’s ‘too much to lose’

Some photos of today’s event:

Peaslee Wildlife Management Area

Ocean County Freeholders Dodge Accountability for Supporting Pipeline

My press clips note that yesterday, the Asbury Park Press reported that the Ocean County Freeholders were “taking a pass” on the controversial South Jersey Gas pipeline through the Pinelands, see:

OC freeholders refuse to take sides on pipeline issue

TOMS RIVER – The Ocean County Board of Freeholders is taking a pass on a contentious proposal to build a natural gas pipeline through the Pine Barrens.

Freeholder Director Joseph H. Vicari said Wednesday that the board would take no position on the proposal, citing ethical concerns.

Freeholder Director Vicari is a coward and full of crap. The Freeholders have already acted to support the proposed South Jersey Gas (SJG) pipeline.

The Ocean County Freeholders appointed current Pinelands Commissioner Avery in an extraordinarily disgraceful way – days before their prior representative was laid to rest.

They rushed Avery’s appointment explicitly so that he could vote in favor of the South Jersey Gas pipeline. Avery then voted in favor of the SJG pipeline.

Here are the facts: 1) Ocean County was represented on the Pinelands Commission by John Haas, longtime Ocean County recycling coordinator. 2) Haas died on Saturday November 30, 2013. 3) Haas was buried on Saturday December 7, 2013 (see Haas’ obituary). 4) Avery was appointed by the Freeholders just days after Haas died and days before Haas was buried. 5) Avery then voted in favor of the SJG pipeline in January 2014. The Pinelands Commission vote was a 7-7- tie.

At the time, I blasted them for that in a December 6, 2013 post:

Recently deceased Pinelands Commissioner and Vice Chairman John Haas has not yet been buried (his funeral is Saturday), but instead of spending time respectfully honoring the man’s legacy at the Commission and as Ocean Count recycling Coordinator, the Christie Administration, Executive Director Wittenberg, and Ocean County Republicans have been working assiduously to line up a hack to fill his slot on the Pinelands Commission.

Mr. Haas’ life and legacy has been reduced to a patronage appointment to assure a majority vote to approve a gas pipeline that violates the Pinelands Comprehensive Management Plan.

How sick is that?

If you don’t believe my version of events and my chronology, please read veteran reporter Kirk Moore’s story in the  Asbury Park Press: (article is archived, no link available):

KIRK MOORE / APP.COM – Days after the death of Pinelands Commission member John Haas, the Ocean County Board of Freeholders moved quickly to fill their representative’s seat on the commission, appointing Alan W. Avery Jr., a former county government administrator and planning director who served on the commission for many years.

Avery’s appointment Wednesday came as the Pinelands Commission appears to be bitterly divided over a proposal to allow construction of a large natural gas transmission line through a forest zone, contrary to longstanding Pinelands rules. The Christie administration and state Board of Public Utilities are strongly backing the plan by South Jersey Gas, which would enable reconstruction of the aged BL England coal-burning generation plant as a modern gas-fired power station.

The timing of the appointment means Avery will rejoin the 15-member Pinelands panel — which oversees land use and environmental protection in seven South Jersey counties — in time for the commission’s next full meeting Dec. 13. That’s when a majority of commissioners could decide whether to move forward or retreat on an agreement with the BPU that would clear the way for pipeline construction …

Shame on the Ocean County Freeholders for the way they appointed Avery and now refuse to be accountable for that.

And shame on Avery for accepting the post at the time and then voting in favor of the SJG pipeline.

Mr. Avery, you could prove me wrong and make me apologize and eat my words by voting NO on the pipeline. But I won’t hold my breath on that.

Don’t let the slights of the mother be avenged by the son

“These scandals seem to occur as corporate influence comes to dominate the policy agenda and industry interests seek to roll back environmental protections from the inside of government.“ ~~~ Bill Wolfe (7/30/08)

[Updates below]

What happens to a 13 year old boy who is forced to watch his mother’s ideology and character savaged by eastern liberal elites (“environmentalists”), who destroy her reputation as she is humiliated by the press corps on a national stage?

Does he internalize that trauma as a deep emotional resentment? Does he bear a grudge?

Does he seek a form of revenge by attending Eastern liberal universities – Columbia, Harvard, Oxford – to enter the belly of the liberal beast and intellectually compete, all to avenge his mother’s radical corporate, anti-regulatory, state’s right’s ideology?

Does he share her deep character flaws? Conservatives stress that “character is destiny” – psychological makeup forms the basis of character.

Although Freudian psychoanalysis has been discredited in some quarters, these are legitimate issues for the Senate to probe.

The Senate better ask Judge Gorsuch about all that, a man-child who Donald Trump just nominated to be a Supreme Court Justice.

This brings us to a question about the strange career of Anne Gorsuch Burford, Judge Gorsuch’s mom.

For those who are too young to know of or those that can’t recall, let’s recap Mrs. Gorsuch’s legacy and see if we can hear any echoes to today’s debates (from the Washington Post):

Anne Gorsuch Burford, 62, Dies; Reagan EPA Director
By Patricia Sullivan
Washington Post Staff Writer
Thursday, July 22, 2004; Page B06

Anne M. Gorsuch Burford, 62, the Environmental Protection Agency director who resigned under fire in 1983 during a scandal over mismanagement of a $1.6 billion program to clean up hazardous waste dumps, died of cancer July 18 at Aurora Medical Center in Colorado.

Her 22-month tenure was one of the most controversial of the early Reagan administration. A firm believer that the federal government, and specifically the EPA, was too big, too wasteful and too restrictive of business, Ms. Burford cut her agency’s budget by 22 percent. She boasted that she reduced the thickness of the book of clean water regulations from six inches to a half-inch.

Republicans and Democrats alike accused Ms. Burford of dismantling her agency rather than directing it to aggressively protect the environment. They pointed to budgets cuts for research and enforcement, to steep declines in the number of cases filed against polluters, to efforts to relax portions of the Clean Air Act, to an acceleration of federal approvals for the spraying of restricted pesticides and more. Her agency tried to set aside a 30-by-40-mile rectangle of ocean due east of the Delaware-Maryland coast where incinerator ships would burn toxic wastes at 1,200 degrees centigrade.

Ms. Burford was forced to resign after she was cited for contempt of Congress for refusing to turn over Superfund records, arguing that they were protected by executive privilege. Ms. Burford acted under President Ronald Reagan’s orders, with the advice of the Justice Department and against her own recommendation, her colleagues told the press at the time. A few months later, in what one of her aides called a “cold-blooded, treacherous act of political callousness,” the Justice Department announced it would no longer represent her because it was involved in investigations into corruption at the EPA.

The New York Times wrote about the Gorsuch corruption at the time:

Rita Lavelle Reports Motive for Grant Delay

Published: April 8, 1985

Rita M. Lavelle, former assistant administrator of the Environmental Protection Agency’s toxic waste fund, says she now recalls being told that the agency delayed awarding a grant for political reasons.

Miss Lavelle, dismissed from her E.P.A. post two years ago, was interviewed last week in Washington, D.C.

Miss Lavelle said Anne McGill Burford, who headed the agency, wanted in mid-1982 to delay the cleanup grant for the Stringfellow toxic waste dump in Riverside County.

She added Mrs. Burford feared that Gov. Edmund G. Brown Jr. might get the credit if the cleanup plan were successful, and she did not want to help his bid for the Senate. Governor Brown was defeated.

Mrs. Burford, who resigned two years ago, testified at a Congressional hearing that she delayed the Stringfellow grant because she had some doubts whether it fully complied with E.P.A.’s regulations.

They say the fruit doesn’t fall far from the tree, and – to twist a phrase – that the sins of the mother are visited on the son.

I am the son of a brilliant woman who was active in public life and an ideological product of the Age of Sputnik – influenced by positive values of science, technological progress, and a strong role for government in promoting the public interest.

In contrast, Justice Gorsuch is the son of a disgraced ideologue and a product of the Neoliberal Age of the Powell Memo – see “The Powell Memo, A Call-to- Arms For Corporations”.

There is no need to speculate about conspiracy theories of Russian hacking – US democracy was hacked and hijacked by corporations 45 years ago, the conspiracy is hidden in plain sight, documented in a publicly available strategy memo, and Princeton research proves the success of it.

Reflecting that Powell strategy and anti-regulatory corporate ideology, Gorsuch has signaled a fundamental attack on federal regulatory powers: (see Judge Gorsuch’s concurrence at page 15).

[Update: 2/9/17 – the NY Times today focuses on that same administrative law issue and “elephant in the room” quote, adding a new coordinated Congressional attack

An issue that has become more contentious lately is how much deference a court should give to an interpretation of the law by an administrative agency when Congress gives it the authority to adopt rules. Known as “Chevron deference,” after the Supreme Court’s 1984 decision in Chevron v. Natural Resources Defense Council, the current rule says the federal courts should defer to the agencies’ interpretations of statutes that are ambiguous or do not directly address an issue at hand.

In an opinion last August, Judge Gorsuch called into question whether Chevron deference was permissible under the Constitution. In a concurring opinion in Gutierrez-Brizuela v. Lynch, he pointed out that “there’s an elephant in the room with us today” that permits “executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.” The downfall of Chevron deference would mean that “very little would change — except perhaps the most important things.”

Although this may seem to be an arcane issue of administrative law, Congress is already considering making such a change in how courts review agencies. The House of Representatives passed a bill on Jan. 11 that includes a provision, called the “Separation of Powers Restoration Act,” to overturn the Chevron decision and require federal courts to determine the proper interpretation of statutes without necessarily giving any weight to an agency’s views.~~~ end update]

[Update 3/17/17 – The NY Times echoes our emphasis on Gorsuch’s views on “Chevron deference”, suggests it will be the focal point of confirmation – see: “Should Agencies Decide Law?” – Once again, we are way out in front of the issue! ~~~ end update]

In that opinion, Judge Gorsuch also revealed a strong whiff of authoritarianism and executive power that is extremely dangerous in the Age of Trump. One could imagine a line like this coming from Steve Bannon:

Gorsuch was influenced by “Public choice theory”, a theory that rejects the existence of the public interest and discredits government intervention. It has particularly undermined effective environmental regulation in the public interest :

Gorsuch’s legal education was shaped by the Federalist Society, an ideological legal institution created to implement the strategy set out in the Powell Memo and that strongly opposes regulation and promotes market based approaches.

[Update:March 18, 2017 – NY Times validates our Federalist Society linkage.  Gorsuch himself confirms it. But it is even worse – look who has ties:

Mr. Leo has an exalted reputation among conservatives, including Scott Pruitt, the former Oklahoma attorney general who is now head of the Environmental Protection Agency. Mr. Pruitt recalled in a speech last year at the conservative bastion Hillsdale College how he was in Washington for a Federalist Society meeting in 2013. Mr. Leo asked him to stay an extra night for dinner, without giving a hint of who might show up.

“Any time that Leonard asks you to go to dinner, you stay, because he feeds you well,” Mr. Pruitt said. But it was not only the menu that was impressive. Mr. Pruitt arrived to see Justices Scalia and Clarence Thomas at the table.

“We spent three hours talking about the Constitution and things that we were involved in as attorneys general,” Mr. Pruitt recalled. “It was a fabulous time.” ~~~. end update]

Trump has publicly stated that his judicial nominees will be “picked by the Federalist Society”: