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The Right Way To Revoke The Pinelands Pipeline Approval

November 13th, 2019 No comments

Commission Wobbling On Putting The Final Nail In SJG Pipeline Coffin

Staff Incompetence or Sabotage?

Vote Postponed until a “physically present quorum”

Inability to get a quorum “Seems like a mess – which is what it is”

This is Administrative Law 101 – I can’t believe that the Commission’s Counsel and the Attorney General’s Office signed off on all this. So, is it incompetence? Or sabotage?

The Pinelands Commission is having a difficult time putting the final nail in the coffin of the South Jersey Gas pipeline they previously approved.

The pipeline is no longer consistent with the Comprehensive Management (CMP) plan due to the cancellation of the BL England re-powering, the primary purpose for the pipeline and the sole reason it was found to be consistent with the CMP and approved by the Commission.

Recently, I was advised by an official in a position to have first hand knowledge that the Commission can not reach consensus on clear language to kill the project, i.e. to determine that it is no longer consistent with the CMP and to revoke the prior approval, resulting in what was called a “weak” resolution. Worse, the leader of a conservation group was OK with the compromise language the Commission negotiated (emails provided upon request and assurance of confidentiality).

But a prior April 2019 Resolution concluded that the pipeline was no longer consistent with the CMP and was revoked. That Resolution was tabled. The current version rejected that April language and does not conclude that the project is inconsistent with the CMP and revoke the prior approval.

In addition to the language of a Resolution, the issue that is not getting any attention by the Commission and public is the procedure by which the Commission should act to kill the project.

SJG has raised these procedural issues, and based on my review of their April 12, 2019 letter, I think they raise valid issues. The Commission would be highly vulnerable to legal reversal if they try to act via Resolution in the absence of formal procedures. In an April 12, 2019 email to AC Press reporter Michelle Post – which I sent to conservation and environmental leaders as a warning – I wrote:

I think they are correct on both legal issues (jurisdiction and procedure).

This looks like a significant embarrassment to the Commission and the administration.

The proper course of action after BL England cancelled their project would have been: [1)]

2) for the Pinelands Commission to issue a formal public notice, and provide a public hearing on its decision to withdraw the prior approval and state the grounds upon which they base that decision.

The Pinelands Comprehensive Management Plan  (CMP) regulations appear to be silent on the procedures for revocation of an existing Commission project approval, like the South Jersey Gas pipeline.

But longstanding basic administrative law procedures on “final agency action” by the Commission under the CMP require formal procedures, i.e. a Report or statement of factual and legal basis, public notice, public comment and public hearing. These are basic and fundamental due process procedures.

The Commission was required to follow these formal procedures in issuing the original approval. Logically, they must follow the same procedures to revoke a prior approval.

Here’s one example from the CMP on revocation of prior county or municipal plan certification:

7:50-3.62  Notice and Hearing

Upon making a determination to initiate proceedings to revoke, suspend or modify Commission certification of a county or municipal master plan, regulation or land use ordinance, the Executive Director shall give notice and conduct a public hearing in accordance with the provisions of N.J.A.C. 7:50-4.

If notice and public hearing are required to revoke a local certification, then obviously killing a multi-million dollar pipeline requires formal procedures.

Here are examples from DEP’s regulations that mandate formal procedures. This is for revoking a water permit, but the procedural requirements are virtually boilerplate for revocations under all DEP permit programs:

For the suspension or revocation of an existing permit or the denial of an application for a new permit or permit renewal, issue a notice of intent to suspend, revoke or deny, as applicable, in accordance with N.J.A.C. 7:14A-15.7(a) setting forth the basis for the permit action; (emphases mine)

The notice and statement of basis require public notice and comment, see:

  • 7:14A-15.10 PUBLIC NOTICE OF PERMIT ACTIONS AND PUBLIC COMMENT PERIOD

So, not only must the current Resolution be tabled, but the Commission must abandon the entire Resolution based approach and instead follow formal procedures to revoke the prior approval, the same procedures they followed to issue the original approval. Anything less than that will not kill the project and instead will invite litigation by SJG.

This is Administrative Law 101 – I can’t believe that the Commission’s Counsel and the Attorney General’s Office signed off on all this. So, is it incompetence? Or sabotage?

Getting back to the Commission’s monthly meeting on November 8, 2019, where they considered a seriously flawed Resolution purported to kill the pipeline was difficult to watch – I was embarrassed for the Commissioners.

Before this meeting, I explained those flaws in this recent post:

You can watch video of the Pinelands Commission’s November 8, 2019 monthly meeting

I was not at the meeting, but after watching this video, my concerns are heightened.

The bumbling and lack of a quorum were humiliating.

After the public raised objections to Wittenberg’s actions – way to go Georgina Shanley, Agnes Marsala and Arnold Fishman ! – the Chairman defended what was egregiously improper behavior by the Executive Director Wittenberg and staff in meeting with South Jersey Gas and outlining options on how they could proceed under the CMP.

Chairman Prickett stated that the CMP encourages applicants to meet with staff and that the Commission was briefed by Wittenberg on the SJG meeting.

But Prickett failed to note that the CMP does not encourage the kind of meeting SJG was provided, under these specific and unique conditions – on remand from a court, with no formal policy position taken by the Commission. He also failed to note that being briefed AFTER a meeting occurred is not remotely equivalent to being asked permission to conduct such a meeting and receive policy guidance from the Commission BEFORE it occurs.

Wittenberg played exactly the same game in the prior dispute about a “waiver”.

During the Commission’s deliberations, Executive Director Wittenberg interjected to rebut public criticism about her role and pointed the finger at the Commissioners. She said:

“the language of Resolution was the Commissioners’ – agreed to at a meeting. It’s their language.”

Wittenberg expressed frustration about the inability of Commissioners to establish a quorum. She even implied that the technical difficulties with the phones were a sham, by claiming that the phones worked for all the other calls, except the Commissioners. Wittenberg then blurted out:

“(Lack of a quorum) seems like a mess – which is what it is”

It is remarkable – especially after the pattern of Wittenberg’s prior collaboration behind the backs of the Commissioners – that she still is allowed to get away with this crap and even bully the Commissioners.

Arnold Fishman summed it up nicely.

He criticized the Commission as being too slow and squandering a golden opportunity to “put a fork in it”.

Fishman warned that the pending Resolution was the equivalent of a “stop work order” and left the door open for SJG to proceed.

Agnes Marsalla raised an important issue. She claimed that SJG favorably advised investors of their intent to proceed AFTER the meeting with Wittenberg. That is an incredible situation that warrants investigation.

Agnes accused Wittenberg and staff of supporting the project, being captured by SJG, and of creating a backdoor for SJG to proceed.

Agnes was also the only one to raise the issue of Gov. Murphy’ pending Pinelands appointments. She advised to either table the SJG matter and wait until they are confirmed by the Senate, or kill the pending flawed Resolution.

Once again, the people are far ahead of the leaders.

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It’s The Pinelands PROTECTION Act, Not The Corporate Stewardship and Mitigation Act

January 24th, 2019 No comments

Gov. Murphy’s Pinelands Nomination Opens Fundamental Policy Debate

Most environmentalists have relationships with power companies and other utilities. It is how we try to influence their goals, their land stewardship, and push for stronger clean power goals at the state level. ~~~ Jennifer M. Coffey, Executive Director,  ANJEC (1/23/19 email – available on request)

This post is a followup to my recent criticism of Gov. Murphy’s nomination to the Pinelands Commission of NJ Audubon’s lobbyist, Kelly Mooij.

I am disgusted but not surprised by the quote above, which was part of a series of push back emails to local Pinelands activists who had raised concerns about Ms. Mooij’s relationships with energy companies, including the same companies that are proposing and building gas pipelines across the Pinelands to serve a fossil power plant on the shore, named BL England.

It is blatantly not true that “most environmentalists” have relationships with power companies.

That false statement reveals just how corrupt the mainstream “conservation” community in NJ has become.

Those “relationships” between certain conservation groups and power companies, like PSEG, have resulted in all sorts of corrupt deals – deals that are directly related to Ms. Mooij’s suitability to serve on the Pinelands Commission.

Let me explain, as I offered no details in my prior post.

Recall that the original South jersey Gas Pipeline proposal (called the MOA) included an $8 million contribution as “mitigation”, essentially a quid pro quo for regulatory approval by the Commission.

As I wrote at the time:

Commissioner Jackson said that he had just undergone ethics training and that the MOA harmed the Commission’s integrity and created the appearance of taking $8 million, paid by ratepayers, in exchange for approval. He warned his fellow Commissioners about growing public concern, particularly in light of South Jersey Gas’ recent request for a rate increase. Commissioner Jackson even said it looks like “we’re being paid off to do this.”

This is the relationship and regulatory model that corrupt NJ Audubon and fellow conservation groups openly support.

They support money contributions to purchase land to “mitigate” harm – and, of course, their own organizations receive some of that money – directly or indirectly – either via “partnerships” with power companies, as consultants to DEP or power companies, or via receipt of State open space money to purchase land.

EXACTLY the same kind of “mitigation” contribution was used to grease the skids for regulatory approvals of the Susquehanna-Roseland power line through the Delaware Water Gap and NJ Highlands, see: The Mendacity of the Mitigation Manipulators, where I included these news quotes:

To mitigate the loss, the utilities behind the line – PSE&G and PPL – last week announced an offer of land worth $30 million for public preservation. The” thousands of acres of land” has been identified as priorities by conservation groups, according to Karen Johnson, a PSE&G spokeswoman. ~~~ Morris Daily Record 1/26/12

As I said at the time:

Bill Wolfe of Public Employees for Environmental Responsibility called the utilities’ recently announced offer to buy and preserve $30 million in nearby lands as “mitigation” for the power lines a test of the National Park Service’s integrity. “It’s an offense to the public process,” Wolfe said. ~~~ Pocono Record 1/25/12

That $30 million was only the federal part of the corrupt deal. (The final deal was closer to $60 million).

An additional $18 million was paid to the NJ Highlands Council:

A proposal by PSE&G would more than triple the line’s current size and capacity. The utility company today slightly amended the proposed line to limit its environmental impact. 

PSE&G has slightly amended the route of a proposed power line through northern New Jersey to limit environmental damage and will create an $18.6 million fund to finance environmental repairs, the company said today. (Star Ledger, 5/19/09)

Those elite dirty deals were cut behind closed doors and sold out and betrayed real grassroots activists who had been vigorously opposing those projects.

NJ Audubon and fellow conservation groups supported those dirty deals.

The “relationships” between energy companies and conservation groups are long established.

PSEG has been spreading a LOT of money around for a LONG time.

The PSEG contributions to and relationships with conservation groups have paid off handsomely, in huge profits and huge damage to the environment.

Just one historical example: PSEG garnered support from their conservation friends for a mitigation deal in Delaware Bay, whereby PSEG avoided the billion dollar costs of installing cooling towers at their 3 nuclear plants on the Delaware in exchange for a sham wetlands mitigation project.

As a result, the nuke plants slaughter billions of fish and aquatic organisms, while PSEG profits by avoiding billions in compliance costs.

NJ Audubon and fellow conservation groups agreed to support that dirty deal, providing PSEG with billion dollar green cover. They sold out. Period.

More recently, the same friendly conservation groups did not oppose the billion dollar PSEG nuke bailout.

See how that corruption works?

These sellouts include political, legislative and regulatory battles, where NJ Audubon and conservation friends get co-opted and support horrible compromises.

Ms. Coffey openly states the source of the problem. She views private, behind closed door, dealings with the power companies as a way to:

influence their goals, their land stewardship, and push for stronger clean power goals at the state level.

The real way to influence power companies and “push for stronger clean power goals” is not by taking money from them and asking for voluntary “stewardship” and tokens.

The way to influence their behavior is via activism, science, democracy, legislation, regulation and lawsuits.

Jennifer Coffey and Kelly Mooij have been wading in those corrupt Trenton swamps for years.

They hide behind slogans like “stewardship” and “mitigation” to try to cover up the stench.

We don’t need these kinds of relationships or stewardship or mitigation deals in the Pinelands.

Just ask the Senate Judiciary Committee to say NO to Ms. Mooij.

And the Green Mafia needs to back off the pushback on real grass roots activists.

It is amazing and sickening that Jennifer Coffee never once appeared before the Commission to oppose the pipelines, but now she challenges real activists who did in defense of the indefensible.

But that’s just the ethics and view from the swamp she lives in.

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Gov. Murphy’s Belated Pinelands Nomination Sparks Controversy

January 22nd, 2019 No comments

NJ Audubon Lobbyist Not Well Suited To Needed Pinelands Reforms

A year into his tenure, NJ Gov. Murphy finally made 2 nominations to the Pinelands Commission.

The Commission was a battleground during the Christie Administration, as debates raged over controversial pipelines, power plants, developments and failure to respond to climate change, failure to restrict water allocation, and stop off road vehicle destruction, among others.

The Commission’s reputation, independence and integrity were severely eroded as a result of Gov. Christie’s hard ball politics and the subversion by his loyal Executive Director, Nancy Wittenberg (remember this?):

“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)

The Christie Pinelands regime prompted editorial outrage:

New Jersey’s Pinelands Commission was once a respected, independent steward of a forest that filters the drinking water for millions in the region. But political manipulation has turned it into an ineffective agency that looks the other way when the preserve’s delicate balance is threatened.  ~~~ Philadelphia Inquirer editorial: “Christie bullied Pinelands panel to get his way (3/9/16)

Given this recent history, the Commission was badly in need of bold leadership and a clean sweep of the Executive Director and Commission members.

Unfortunately, Gov. Murphy has failed that leadership test: in the delay in acting, in failing to force out ED Wittenberg, and in one of his choices for a new Commissioner, Kelly Mooij.

Murphy’s other nominee, Theresa Lettman, is superb, so I will waste no effort here in praising her.

In contrast, for the last decade, Ms. Mooij has served as the Trenton lobbyist for NJ Audubon and in that capacity has advocated NJ Audubon’s interests.

And that raises major concerns, including:

1. A Trenton lobbyist is not well suited to the work of the Pinelands Commission, which must be above the day to day compromises, spin, and deals (and worse) of the Trenton scene.

The last thing the Commission needs right now is more Trenton political baggage and more Trenton deals.

The Commission needs leadership, integrity, and impeccable professional credentials. By dint of her own experience, Ms. Mooij simply fails that test.

2. NJ Audubon has a very controversial approach to “stewardship” of public lands.

That approach includes: a) commercial logging of public lands; b) elevation of dubious science and narrow single bird species conservation over broader public lands policy and environmental interests (while misleading the public); c) leading the “Keep It Green” coalition, which deceived the public about diversion of hundreds of millions of dollars in State Parks capital funds and environmental funding to the Green Acres program; d) deceptive federal farmland conservation grant money laundering to promote the private interests of forestry consultants, private landowners, and hunters; e) supporting scientifically flawed “mitigation” schemes – including money donations in exchange for regulatory approvals – and land deals to allow controversial projects to pass regulatory muster; f) acceptance of hundreds of thousands of dollars in donations from wealthy private individuals to do their special private interest land “stewardship” bidding; and g) forming a “partnership” with Donald Trump.

These NJ Audubon views include strong support of “active management” of public forests and public lands, e.g. See:

Such arrogant and scientifically dubious “active management” policy is exactly the wrong approach to the ecologically sensitive Pinelands, which demand a more humble and restrained passive approach.

I have gone into excruciating detail and provided evidence to support all of these claims here at Wolfenotes over the last few years, with the exception of the federal farmland conservation grant money laundering, which I recently learned of and am still researching.

Ms. Mooij is fully aware of all these abuses and has supported them in Trenton on multiple occasions.

3. NJ Audubon has close relationships with corporate NJ, including major development and energy companies that are active in the Pinelands and before the Pinelands Commission.

These relationships directly result in NJA positions on public lands and conservation issues in a way that compromises the public interest in favor of NJA’s corporate allies and funders.

NJ Audubon openly promotes these relationships in their “Corporate Stewardship Council”.

Member companies include co-chairs PSEG and Mannington Mills, as well as Atlantic City Electric/Pepco Holdings, Covanta Energy, Chemours, Eastern Propane, JCP&L, Johnson and Johnson, New Jersey American Water, New Jersey Manufacturers Insurance, Pfizer, Suez, Verizon, ExxonMobil, South Jersey Gas, Pine Island Cranberry Co. Inc., U.S. Silica and Crystal Springs Resort. Former CSC members include New Jersey Natural Gas, Merck, and Eagle Ridge Golf Course. Ex-officio CSC members are the New Jersey Department of Environmental Protection (NJDEP) and the United States Fish and Wildlife Service (USFWS).

Ms. Mooij is fully aware of these relationships and has supported and defended them in Trenton.

Appointment to the Pinelands Commission would send exactly the wrong signal on issues of independence and integrity.

Some of these relationships pour salt on open wounds that are festering from major pipeline battles still pending resolution that remain before the Commission, e.g. see: Construction starts on Pinelands pipeline, Phil Murphy silent

Finally, Ms. Mooij might be forced to recuse from critical decisions, due to this prior “stewardship” work.

4. Ms. Mooij has not been a leader in the Pinelands

Ms. Mooij and NJ Audubon have very little positive accomplishments in the Pinelands, and have been basically invisible during major debates before the Commission.(in contrast to fellow nominee Ms. Lettman’s long tenure, aggressive activism, and love of the Pines).

That is the opposite of the leadership so badly needed right now at the Commission.

5. Ms. Mooij has cynically manipulated people

I close the argument with a photo – which speaks volumes. That’s Ms. Mooij on the right:

Newark Mayor Baraka used as prop by Keep It Green – Did Baraka and urban Dems get played, or what?

Newark Mayor Baraka used as prop by Keep It Green – Did Baraka and urban Dems get played, or what?

Given the above, I encourage readers to reach out to the Chairman and members of the Senate Judiciary Committee and urge that Ms. Mooij not receive a confirmation hearing.

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USGS Study Finds Widespread Presence of Toxic Pesticides & Herbicides In Pinelands Ponds and Wetlands

October 2nd, 2018 No comments

Significantly, greater numbers of pesticides and higher total pesticide concentrations were observed in stormwater basins than in natural and excavated ponds. Reference wetlands had fewer pesticides and lower total pesticide concentrations compared to degraded wetlands, indicating a positive relation between percent altered land and pesticides throughout the New Jersey Pinelands. ~~~ USGS Research Report (2018)

An important USGS study was just released that provides deeply disturbing data and findings regarding the presence and prevalence of toxic herbicides and pesticides in what should be considered the “pristine” NJ Pinelands.

I’m on the road and really don’t have the focus to read and analyze the full USGS study, but the abstract is disturbing regarding the presence and prevalence of toxic herbicides and pesticides.

The USGS research also suggests that current regulations and management requirements of the Pinelands Commission and NJ DEP regarding stormwater and wetlands are seriously flawed and that monitoring for the ecological impacts of toxics has not been robust.

Previous research in 2002 by NJ DEP found that created wetlands and mitigation do not perform the ecological functions of natural wetlands, so this is not the first science to suggest that regulatory policies must be strengthened.

Here is the USGS study abstract: (emphases mine)

A study conducted by the U.S. Geological Survey, in cooperation with the New Jersey Pinelands Commission and Montclair State University, was designed to compare pesticide concentrations and the presence and prevalence of amphibian pathogens between natural ponds and two types of created wetlands, excavated ponds and stormwater basins, throughout the New Jersey Pinelands. …  Sites were selected on the basis of land-use classifications within a 500-meter radius around each wetland from a pool of natural ponds, excavated ponds, and stormwater basins determined by the New Jersey Pinelands Commission.

Here are the major findings:

The amount of altered land (percent agricultural plus percent developed) ranged from 0 to 62.4 percent for the natural ponds, 0 to 63.6 percent for the excavated ponds, and 23.3 to 80.2 percent for the stormwater basins. The herbicides atrazine and metolachlor were observed in 60 and 89 percent of the water samples, respectively. The insecticide bifenthrin was the most frequently detected current-use pesticide (greater than 25 percent of the samples) in bed-sediment, anuran-food, and composite larval-anuran-tissue samples. The legacy insecticide p,p’-DDT and its primary degradates p,p’-DDD and p,p’-DDE were the most frequently detected compounds in bed-sediment and anuran-food samples (32–76 percent in sediment samples and 24–72 percent in anuran-food samples).

Significantly, greater numbers of pesticides and higher total pesticide concentrations were observed in stormwater basins than in natural and excavated ponds. Reference wetlands had fewer pesticides and lower total pesticide concentrations compared to degraded wetlands, indicating a positive relation between percent altered land and pesticides throughout the New Jersey Pinelands. Ranavirus was observed in larvae from 4 wetlands, including 1 reference natural pond, 1 degraded natural pond, and 2 degraded stormwater basins, with prevalence ranging from 3 to 43 percent. Bd was detected in swabs from 18 animals and in 4 natural ponds (1 reference and 3 degraded), 3 excavated ponds (all reference), and 2 stormwater basins (1 reference and 1 degraded); however, detection probability was low. In the wetlands with Bd detections, between 10 and 30 percent (between 1 and 3) of the animal’s swabbed tested positive for Bd. Owing to the limited number of positive detections for both Bd and Ranavirus, no statistical comparisons between wetland types and land-use classifications were possible.

DEP has taken the position that regulated activities in the Pinelands are not subject to compliance with the DEP’s surface water quality standards

Those SWQS standards have numeric limits for herbicides and pesticides, and include this prohibition: (see: NJAC 7:9B-1.5(a)4.)

Toxic substances in waters of the State shall not be at levels that are toxic to humans or the aquatic biota, or that bioaccumulate in the aquatic biota so as to render them unfit for human consumption.

That flawed DEP interpretation must be revisited in light of this disturbing research.

This is newsworthy and deeply troubling.

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Murphy DEP Given Chance To Kill South Jersey Gas Pinelands Pipeline

June 15th, 2018 No comments

First major test of Gov. Murphy’s Climate Leadership

SJG requests DEP permit extensions

Get a competent lawyer and immediately petition DEP to deny the extension request. This must happen before June 23

[Update: 6/29/18 – Murphy DEP ignored public comments and rubber stamped the extension requests, see Press of Atlantic City story:  South Jersey Gas gets permit extensions for pipeline

The pipeline, called the Cape Atlantic Reliability Project, continues to meet Coastal Zone Management and Freshwater Wetlands Protection Act rules, said the letter from Division of Land Use Regulation Manager Ryan J. Andersen.

The Christie DEP approved pipeline never complied with those permit regulations and their biased permit approvals should have been re-opened.

The Murphy Administration now owns the Pinelands pipeline.

In an attempt to downplay the issue and dodge any responsibility, the approval was issued by a lowly Bureau Chief. Shame on them.~~~ end update]

To avoid expiration, South Jersey Gas (SJG) recently quietly requested that the Murphy DEP extend permits issued for the controversial Pinelands pipeline, which was strongly backed by the Christie administration.

The extensions are requested for a freshwater wetlands “General Permit” (GP) and an individual Waterfront Development permit (IP). The Christie DEP issued these permits in July 2013.

These extension requests are not automatically granted by DEP, but are subject to review. DEP has adequate discretion for denial of the extension requests under DEP rules (e.g. for waterfront development IP extension, see: NJAC 7:7-27.3). DEP denial would force SJG to apply for new permits and begin the permit process all over again, under presumably more aggressive Murphy DEP oversight and purportedly strict climate and energy policies.

After SJG benefitted from green lighting numerous regulatory approvals by the Christie administration, the ball is now in the Murphy DEP’s court.

How DEP handles these SJG requests will be the first major test for Gov. Murphy’s claim to climate leadership. If the Murphy DEP rubber stamps the SJG extension request, they own this project.

Murphy recently signed Legislation (the PSEG nuke bailout bill) that declared a “moral imperative” that the State pursue infrastructure that “does not not produce greenhouse gases“:

Given the overwhelming scientific consensus that fossil-fuel use is causing potentially irreversible global climate change and the attendant environmental catastrophes, it is a moral imperative that the State invest in energy infrastructure within and outside the State that does not produce greenhouse gases. ~~~ Nuke bailout law, P.L. 2018, c.16

The SJG fossil fueled gas pipeline not only “produces” huge quantities of greenhouse gases via methane leaks (methane is a potent GHG: it has 80 – 100 times more warming potential than CO2 in the short run), it also is part of a huge fossil energy infrastructure, which includes re-powering the BL England fossil fueled power plant, which also is a huge emitter off greenhouse gases.

During the original regulatory review of the pipeline by the Board of Public Utilities, DEP, and the Pinelands Commission, SJG made claims that the pipeline was critically needed to avoid catastrophic loss of electric power and gas service to the region. They made claims that the lights would go off and people would freeze in the dark without gas or electric power (i.e. the sham vulnerability and reliability argument). BPU Order summarized as follows:

SJG submits that the Pipeline and repowering of B.L. England are critical to electric reliability of the region. In July 2014, as part of its Regional Transmission Expansion Plan (“RTEP”), PJM studied the effects of a failure to construct the Pipeline and concluded that the resulting shut- down of B.L. England “will have an adverse impact on the reliability of the transmission system.”

To avoid these alleged critical energy infrastructure vulnerabilities –“including the potential for blackouts” (see p. 31)  SJG pressured BPU, DEP and the Pinelands Commission to expedite approvals for the pipeline. BL England made the same arguments about the power plant.

While completely ignoring the science and risks of climate change, the Christie BPU agreed with these SJG scare tactics and concluded (see p. 42)

In this second scenario, during cold weather with an average daily temperature of thirty (30) degrees, 61,058 customers would initially lose gas service, and after the McKee City Liquefied Natural Gas ran out of its supply, a total of 119,820 customers would lose gas service. On days with a lower average daily temperature, approximately 141 ,899 customers would lose gas service. …

The facility is a significant source of base load power generation in Southern New Jersey. B.L. England continued to operate and feed the local power grid supply during Superstorm Sandy in 2012. (@ p. 43)

Amazingly, the Christie DEP press office openly revealed bias in this incredibly unprofessional false statement in support of the SJG scare tactics:

Considine also defended the project on grounds that closing the plant, which sits on Little Egg Harbor in Upper Township, would increase the risk of brownouts in South Jersey. (Philadelphia Inquirer, 8/8/16)

For SJG to now request extension to avoid expiration of DEP permits – after 2 Christie DEP extensions of air pollution compliance deadlines and 5 years of construction delays – exposes the lies they told about the critical and pressing nature of the energy infrastructure vulnerability. 

On that basis alone, DEP should deny the extension requests and force SJG through a new permit review process under the Murphy administration’s “moral imperative” energy infrastructure and climate policy.

But there are additional grounds for DEP to deny the extension requests for failure to comply with DEP regulations.

Specifically:

1) the pipeline and BL England projects have changed;

2) important facts and environmental conditions have changed;

3) DEP regulations have changed. Under DEP permit extension rules, if the rules change, then DEP must DENY the extension request. No wiggle room. They must deny. The wetlands rules have changed regarding: a) GP #2; b) HDD under streams; and c) the definition of water quality certificate changed, a change that effects both the waterfront development and wetlands permit regulations); and,

[CLARIFICATION – rule change is not an automatic basis for denial. The applicant must demonstrate compliance with rule changes. Review and rejection of that demonstration is how the Murphy DEP could reverse Christie DEP regulatory policy.]

4) the original DEP permits were deficient and fatally flawed.

Specifically, neither the applicant SJG nor DEP ever conducted a water quality analysis to demonstrate compliance with NJ surface water quality standards. DEP therefore lacks any factual basis to issue the permit approvals or the water quality certification mandated by law.

Regulatory approvals that lack any factual basis in the administrative record are routinely rejected by courts as “arbitrary and capricious”. Courts do no defer to agency expertise when there is no factual basis in the record to support the agency’s decision.

The SJG extension request now provides the opportunity to re-litigate these issues with the more receptive Murphy DEP.

In addition to the rules governing permit extensions, other DEP regulations specifically include authority to re-open and/or amend or revoke permits if mistakes were made or if material facts were ignored or if material facts have changed.

Pipeline activists must put a full court press on Gov. Murphy and Acting DEP Commissioner McCabe and demand that they deny the SJG extension requests and force SJG back through a de novo permit review process.

DEP has just 15 days – the clock started ticking on June 8, 2018 – to make a decision so advocates must work very quickly and aggressively. Get out a letter to the Gov., issue a press release, and hold an event at the DEP building.

Get a competent lawyer and immediately petition DEP to deny the extension request. This must happen before June 23.

[Update: I just sent this Hail Mary letter requesting legislative oversight:

Dear Chairman Smith:

On June 8, 2018, South Jersey Gas (SJG) requested that DEP extend freshwater wetlands and waterfront development permits issued by the Christie Administration’s DEP to the controversial Pinelands pipeline.

DEP has just 15 days to make a decision under applicable DEP regulations. DEP has adequate authority to deny the SJG request as it does not comply with DEP regulations governing permit extension.

Briefly, the project has changed, material facts have changed, applicable regulations have changed, and the underlying permits were defective for failure to conduct required water quality analysis to demonstrate compliance with NJ surface water quality standards and provide a basis to issue the water quality certification required under DEP’s own regulations.

The Legislature recently found:

“Given the overwhelming scientific consensus that fossil-fuel use is causing potentially irreversible global climate change and the attendant environmental catastrophes, it is a moral imperative that the State invest in energy infrastructure within and outside the State that does not produce greenhouse gases. ~~~ Nuke bailout law, P.L. 2018, c.16

Given this “moral imperative” to avoid investments in fossil infrastructure and the biased regulatory process under which the Christie administration issued DEP, BPU and Pinelands Commission approvals, I urge you to conduct legislative oversight of DEP’s review of the SJG extension request.

Time is of the essence.

I discuss this issue in more detail in the article below.

I appreciate your timely support.

Respectfully,

Bill Wolfe

Murphy DEP Given Chance To Kill South Jersey Gas Pinelands Pipeline

http://www.wolfenotes.com/2018/06/murphy-dep-given-chance-to-kill-south-jersey-gas-pinelands-pipeline/

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