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Get Ready For Another Fake Pipeline Permit Kill

Pinelands Pipeline Put In Same Limbo As PennEast Pipeline

The Pinelands Commission’s Prior Approval WILL NOT BE REVOKED

[Update: 11/8/19 – Georgina Shanley just advised that the Pinelands Commission tabled the fake kill Resolution this morning, with strong public opposition to the Resolution. Good news. Great job by Pines advocates.]

[Important Update below]

On Friday, the Pinelands Commission will consider a Resolution, purported to kill the proposed South Jersey Gas (SJG) pipeline, designed to serve the re-powering of the BL England plant.

The last vague item on the Agenda for the meeting is this “Other Resolution”: (scroll all the way to the end of the lengthy package to find the text of the Resolution):

Other Resolutions

On May 29, 2019, the Appellate Division granted the Commission’s motion to remand the appeals pertaining to South Jersey Gas Company’s application for the installation of 15 miles of a proposed 22- mile natural gas pipeline within the Pinelands Area, because of a significant change in the application, i.e. RC Cape May’s decision not to repower BL England’s electrical generation plant with natural gas. Enclosed is a draft resolution intended to address the court’s remand.

The Pinelands Commission is taking a cowardly page out of the Murphy DEP’s pipeline playbook.

Just like what was misleadingly and falsely spun as the DEP “denial” of permits for the PennEast pipeline, the Pinelands Commission’s Resolution also merely finds that the original SJG permit application the Commission approved is “incomplete”.

DEP also found that the PennEast pipeline permit applications were “incomplete” and discontinued permit review  “without prejudice”.

Instead of a straight up denial or revocation of the prior SJG approval, the Pinelands Commission’s Resolution merely concludes that “SJG shall not proceed with the project.”

Compare that weak language with a prior Resolution considered by the Commission earlier this year, which found the pipeline inconsistent with the CMP and “invalid”:

NOW, THEREFORE BE IT RESOLVED that as the Project can no longer be demonstrated to be consistent with the CMP, Pinelands Resolution No. PC4 -17-03 approving the Project is NOT VALID (caps in original).

The prior Commission approval remains in effect. That leaves the door open to future construction of the pipeline. Possibilities include:

A majority of this or a new Commission could vote to revive the project in the future. Or SJG could simply proceed with construction to test the enforceability of the Commission’s Resolution. Or SJG could manufacture another rationale that the pipeline is consistent with the CMP without the BL England plant. Or SJG could seek a minor modification to the prior approval and they might get the votes to approve it. Or SJG might find a new investor in re-powering BL England. Or the next Governor might appoint new Commissioners to revoke the “shall not proceed” Resolution.

Keep in mind that the Norcross/Sweeney south Jersey machine still strongly supports the pipeline.

I hope the Commission is not required to enforce or defend this Resolution in a Court of law.

The Commission should have simply drafted a Resolution that explicitly revoked the prior approval, with prejudice, after public notice and comment and opportunity for SJG to comment.

That would preclude SJG from proceeding under the prior approval, extinguish their due process arguments, and require that they prepare a de novo application and start from square one.

Why give SJG ANY legal wiggle room to challenge this?

The Commission’s draft Resolution relies on Executive Director’s Wittenberg’s letter to SJG. That letter made findings of fact and arguably conclusions of law – in the absence of any public process – that the Commission relies on in the Resolution.

Yet ED Wittenberg’s letter was not a formal finding of the Commission and was not accompanied by a formal public process.

SJG has raised due process concerns about how the Commission has done this.

In the alternate, the Commission should propose the substance of Executive Director Wittenberg’s letter and the draft Resolution as a formal final action, subject to public notice, public hearing and public comment. That would make it virtually impossible for SJG to challenge the action and would truly terminate the prior approval.

So why wouldn’t the Commission – like House Speaker Pelosi on the Impeachment Resolution – just remove any and all doubt? Why run any litigation risk of provide any possibility for SJG to proceed under the prior approval (including under a future Commission)?

My Pinelands sources tell me that the Commission could not produce 8 votes to directly kill the project and that the current draft Resolution is a compromise extracted by Commissioners who voted in favor of and still support the pipeline and refuse to vote to kill it.

But the Commission may be being set up by recalcitrant Commissioners who support the pipeline and playing right into SJG’s hands by acting without proper procedural due process.

Keep in mind that Executive Director Wittenberg – who has supported the pipeline and worked behind the Commissioners’ backs with SJG  – is again in control of and orchestrating the regulatory actions of the Commission. She wrote that letter to SJG that SJG lawyers have challenged and now the Commission is relying on her letter as the basis for the Resolution. I don’t trust her, given her past outrageous shenanigans in support of the pipeline.

That compromise Resolution might come back to bite them – I hope not.

Better to get it right than compromise – I’ve urged the Commission to table this Resolution and do it right.

Given the climate emergency, strong public opposition and the facts and law on our side, now is not the time for compromise.

[Update – Georgina Shanley just sent me the video of the September 13, 2019 Pinelands Commission meeting with this note.

Please listen to the tape which is only a couple of minutes of Nancy Wittenberg’s report to Commission of the meeting on September 9th with the reps from South Jersey Gas. Starts 8.49 mins and ends 10.35 mins. It is damming.

Wittenberg’s actions are  completely outrageous. Given the pattern of her collaboration with SJG behind the backs of the Commissioners, she must be fired.

Why the hell is the Pinelands Commission staff meeting with SJG without policy guidance from the Commission?

The Commission and SJG are in a quasi-litigation posture and adversarial position. The case is on remand.

Why is staff outlining pipeline route alternative and regulatory options for SJG? ~~~ end update]

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