The NJ Pinelands Commission: How one of government’s most successful environmental bodies was overtaken by the fossil fuel industry.

On February 24, 60% of the commission’s fifteen member board voted in final support of the construction of a 15 mile natural gas pipeline through the heart of the New Jersey Pinelands. The vote was in spite of the vast majority of the approximately 800 in attendance, along with virtually all of the state’s environmental groups and four former governors, standing vehemently against it. Representing the culmination of a five year battle pitting environmentalists against the Chris Christie administration, the fossil fuel industry, and unions, the final vote was tallied literally over the shouts, chants and singing of the crowd.

This is the story of how the Pinelands Commission transformed from being a bipartisan governmental agency that faithfully enforces one of “the strongest state land-use legislation in the country,” to one that now votes at the behest of the fossil fuel industry, in direct opposition to public sentiment.

In 1978, the New Jersey Pinelands, also called the Pine Barrens, became the nation’s first National Reserve:

The [Pinelands Nature Reserve] is approximately 1.1 million acres and spans portions of seven counties and all or part of 56 municipalities. The reserve occupies 22% of New Jersey’s land area and it is the largest body of open space on the Mid-Atlantic seaboard between Richmond and Boston.

The reserve is home to dozens of rare plant and animal species and the Kirkwood-Cohansey aquifer system, which contains an estimated 17 trillion gallons of water.

(Not billions, trillions.)

In 1979, New Jersey passed the Pinelands Protection Act. The act was intended to assist one of the only remaining untouched regions in the state in its resistance to further development, as pressured by Atlantic City on the east and Philadelphia on the west. The act created the Pinelands Commission:

[The Pinelands Commission is an] independent state agency whose mission is to “preserve, protect, and enhance the natural and cultural resources of the Pinelands National Reserve, and to encourage compatible economic and other human activities consistent with that purpose.”…

In this cooperative intergovernmental scheme, all participants were to “preserve, protect, and enhance the resources of the Pinelands” and permit only that development that was consistent with that purpose.

In 1983, the United Nations declared the Pinelands an International Biosphere Reserve and in 1995, the UN called the Act and its Commission “still perhaps the strongest state land-use legislation in the country.” (According to environmental activist Bill Wolfe, the Highlands Act, that protects northern NJ and was based on the Pinelands Act, is “far stronger.”)

January 10, 2014: Pipeline defeated in 7-7 deadlock

Originally proposed by South Jersey Gas in July of 2012 (page 5), a draft Memorandum of Agreement between SJG and the Pinelands Commission was presented in December of 2013. The plan included an $8 million payout to the commission, including (page 14) $250,000 to build a “Pinelands education center” and $500,000 for the creation of “education or outreach based programs or initiatives.” The remaining $7.25 million was to be placed in a Land Acquisition account:

[A Land Acquisition account is to] fund the acquisition of land located adjacent to the site of the proposed pipeline project located in a Forest Area. If all of the identified lands have not been acquired after three years from the execution of this MOA by the last signatory, than any remaining funds also may be used for acquisition of lands in the southern forested portion of the Pinelands Area, i.e. south of the Atlantic City Expressway.

The Agreement was rejected by the board on January 10, 2014, in a 7-7 deadlock. As described in the next section, one anti-pipeline commissioner was forced to recuse himself. Two of those voting against the pipeline were Chris Christie appointees. One of those voting for it was a new commissioner appointed by his county exactly three days before the funeral of his anti-pipeline predecessor, around one month before the vote.

The vote occurred in the midst of the Bridgegate scandal and on the day of a dangerous ice storm.

(Details on the vote are on page 4, individual votes on 5-6.)

The rejection was encouraged by four former governors, two Democrats and two Republicans, in an unprecedented joint letter delivered to the commission a month before the vote. Each of the governors were intimately involved in the creation or maintenance of the Pinelands law:

Kean, as an assemblyman sponsored the law preserving the Pinelands, a measure Byrne signed into law. Florio, as a congressman, pushed through legislation adding federal protections to safeguard more than 1 million acres of the preserve. He later served as chairman of the Pinelands Commission. Whitman signed into law a long-term stable funding source for protection of open spaces…. Kean defeated Florio to win his first gubernatorial term. Whitman defeated Florio when he sought reelection after his first term.

Executive Director Nancy Wittenberg

In late 2010, Governor Christie appointed Nancy Wittenberg, the former head lobbyist of the NJ Builders Association, to be the Executive Director of the Pinelands Commission. Her starting salary was $135,000 and at the time, she professed a “passion and commitment for preserving New Jersey’s environment.”

Wittenberg’s staff inappropriately coordinated with both the Christie administration and South Jersey Gas, much of it without the knowledge of the board. During this time, the State Ethics Commission, on the “order of the governor’s office,” very questionably forced the recusal of an anti-pipeline board member from the critical January 2014 vote. Despite his absence, the pipeline was still narrowly defeated.

Three months later, seemingly in retribution, Chris Christie became the first governor in the commission’s history to veto the minutes from a monthly meeting: minutes which happened to contain the new budget providing the staff with its first raise in four years. Four months after that, something unexpected occurred at the August 2015 monthly meeting, whose agenda did not contain anything about the pipeline. As reported by the Pinelands Preservation Alliance:

In a stunning move the Executive Director of the Pinelands Commission decided she would not allow the matter to be submitted to the 15-member governing board of the Commission. She stated that the project complied with the rules [and therefore approval was only necessary by the state’s Board of Public Utilities]. On December 16, 2015 [the BPU] approved the petition from South Jersey Gas that would waive all municipal land use ordinances and regulations in relation to the construction of the pipeline.

The BPU vote was unanimous; conducted in only a few minutes and without debate. In addition:

BPU staff directed the board to consider only evidence provided under oath, which did not include comments given at public hearings and during comment periods by members of the public.

Numerous environmental groups appealed the decision and, in July of 2016, they gained the support of three of those same former governors, who this time filed an amicus brief to the courts, declaring Wittenberg overstepped her authority in a role intended only as advisory and administrative. (Although the fourth Republican governor did not sign the brief, he vocally supported the effort.)

On November 7, 2016, the day before Donald Trump was elected to the presidency, Wittenberg’s decision was struck down by the courts, who declared that she overstepped her bounds, forcing the decision back to the Pinelands Commission’s board. Among the court’s evidence was the amicus brief.

On February 17, 2017, one week before the final vote by the board, Wittenberg once again recommended passage.

Aside: So-called public comment:

Page 7 in Wittenberg’s recommendation report (abbreviated here on out as “WH-7“) states:

At its January 24, 2017 meeting, the Commission received public comment from approximately 130 individuals. Attendance initially exceeded capacity, and Commission staff collected a list of those waiting to enter, and allowed those people to enter as others left. All those wishing to attend the meeting were able to enter by approximately 12:30 P.M., and the Commission continued the meeting until past 5:00 P.M. to give all those who wished to speak an opportunity.

Hundreds of people were shut out of this so-called public meeting, possibly more than were on the inside. There were multiple reports of people being refused entry up to an hour before the scheduled start time. I, myself arrived right on time and was shut out. I was later offered entry as press, but declined in order to tell the story of those on the outside, where I livestreamed for three hours. Despite Wittenberg’s assertion, most of the crowd was forced to leave after enduring hours in the bitter cold and rain.

Robert Barr, pro-pipeline Chris Christie appointee

In January of 2016, two years after his “no” vote, Republican Commissioner Mark Lohbauer was demoted by Chris Christie from his five-year chairmanship.

In April and May of 2014, three members who voted against the pipeline in January were recommended for replacement with people known to be supportive of it. Two were nominated by the Governor. A fourth was replaced by her county’s freeholder board after 18 years of service.

(Similarly, in 2011, Christie replaced three environmentally friendly members of the Highlands Council, a commission created in 2004 to protect “a vital source of drinking water for more than half of New Jersey’s families, yielding approximately 379 million gallons of water daily.”)

One of Christie’s nominees was Robert Barr. His nomination first required passage through the NJ Senate Judiciary Committee, which twice failed. According to the Press of Atlantic City, “Barr professed last year during his testimony before the Senate Judiciary Committee to an intentional ignorance of the Pinelands.”

Before Barr’s third vote with the Committee, the same former governors wrote another joint letter, this time in opposition to Barr’s nomination. The letter was addressed to the now-current Democratic gubernatorial candidate, Ray Lesniak, who agreed with their assessment. However, Lesniak was shut out of the vote because it was scheduled to coincide with the final day of a planned personal vacation (in January 24, 2016). Lesniak was temporarily replaced by someone known to support Barr, resulting in the nomination passing by a 7-5 vote (with one abstention), sending it on to the full Senate.

On March 16, Barr’s nomination was defeated by the Senate by a vote of 19 in favor and 17 against (with a required threshold of 21). Less than one hour later, “Senate President Steve Sweeney (D-3) and Senator Joe Pennacchio (R-26) added their ayes to the appointment,” pushing Barr over the edge and onto the commission.

Environmental impacts

This is Chris Christie’s New Jersey:

While there is no hydraulic fracturing in the state of New Jersey, Governor Chris Christie has repeatedly vetoed restrictions from importing fracking waste. He also passed a bill to privatize every water system in the state. If any water is polluted by that fantastically toxic fracking waste, the priorities of the remaining clean water will be determined by a profit motivated private corporation.

According to South Jersey Gas, the pipeline “will provide significant environmental improvements for[sic] the B.L. England generating station by transitioning it from coal to natural gas” and according to the plant’s owner, doing so will increase the plant’s efficiency by 27%.

But the environmental political action group NJ Sierra Club asserts that the NJ Department of Environmental Protection’s findings, as quoted by Wittenberg (WH-22), are based on misleading methodologies and that the plant, which was originally scheduled to shut down in 2007, remains open in an effort to avoid newer and more stringent environmental laws. The plant currently runs on coal for about two months out of the year. If converted to natural gas (which will result in its lease being extended by up to 20 years), it will run at least 350 days out of the year (WH-12, bottom), 24 hours a day, dramatically increasing overall emissions. Methane is also a greenhouse gas seventy times–not percent, times–more potent than the CO2 in coal, but the greenhouse pollution from methane largely happens at the extraction site, whereas, for coal, it is exclusively during combustion.

South Jersey Gas asserts that keeping the BLE plant running is “necessary to improve reliability” of energy in the Pinelands area and Richard Engel, a state deputy attorney general, suggests that closing it could cause NJ to face rolling blackouts or brownouts*. Although the energy of any power plant generally serves those geographically closest to it, the energy from the BLE station is poured indiscriminately into the massive regional PJM grid that ultimately serves thirteen states and the District of Columbia.

Because the plant is currently peak-only, running around two months out of the year, permanently shutting it down, according to the grid’s own spokesperson, is likely not detrimental and, according to the Sierra Club, “would actually cause fewer power reliability problems than if it [stays] open.” Regardless, Frank Felder, director of the Center for Energy, Economic and Environmental Policy at Rutgers University says it is an issue to monitor, not a crisis*.

*(From a private correspondence with Becky Free.)

Regarding the inevitability of leakage, Wittenberg responds (WH-21) with how good “modern” and “state of the art” technology is for both preventing and dealing with accidents:

Modern technology regarding pipe materials and construction techniques minimizes the risk of leaks from new pipelines [and that the] magnitude of an unlikely leak will also be minimized by the use of state of the art piping, continuous pressure gauges, and inspections and shut off valves.

Regarding the inevitability of explosions, Wittenberg responds (WH-18-20) with the plethora of required safety standards, precautions, and procedures, which includes limiting the number of inhabited structures within 100 feet of the pipeline. What is not mentioned:

• Since the pipeline is almost exclusively intended to line the shoulders of roadways, cars traveling on top of it are at obvious risk. (The Pinelands Preservation Alliance, however, directly contradicts this: “The pipeline will be immersed in the Kirkwood-Cohansey Aquifer along much, if not most, of its length.”)
• Even assuming an ignition source right at the pipe, a 24-inch pipeline running at 437 PSI (WH-3) has a blast radius closer to 1,000 feet*, not 100.
• Wildfires are an important and recurring part of the Pinelands’ ecology.
• “By designing the proposed pipeline to operate at pressures far greater than necessary to supply B.L. England… South Jersey Gas substantially increases future material fatigue that could rupture the pipeline….”*

*(From page 26 in this officially submitted expert review document.)

Finally, Wittenberg states (WH-17) the pipeline’s construction does not require a dewatering permit because, although water will indeed be drained in order to stabilize construction, “[the] BL England project will be below the 100,000 GDP [gallons per day] threshold.” Leaving open the possibility that many tens of thousands of gallons of water will be drained daily throughout the Pinelands, affecting nearby well water, ponds and marine life.

The pipeline is approved because it will “primarily serve the needs of the Pinelands”

Wittenberg’s recommendation reiterates the purpose of the Comprehensive Management Plan (CMP) (WH-5):

Public service infrastructure is only a permitted land use in a Forest Area if it is demonstrated that the proposed natural gas pipeline is intended to primarily serve only the needs of the Pinelands

In 2012 (WH-2), the same pipeline was denied by the commission for this very reason. But now in 2017, both she and Barr support it. What changed?

Barr states in an interview: “I am convinced [that] this pipeline will serve mostly Pinelands people and business. That is what we are supposed to take into account. This was my primary driver.”

According to South Jersey Gas, while the pipeline “is necessary to improve reliability for the 140,000 South Jersey residents,” Wittenberg concludes that (WH-13) 20,000 of them are in the Pinelands, which is 14%. Since this conclusion is based on the fossil fuel companies’ own information, even this is likely overly optimistic.

How does Wittenberg conclude that this project does indeed “primarily serve only the needs of the Pinelands”? Because the pipeline will serve the BL England power plant, a business that happens to reside in the Pinelands, even though it is outside of the protected region under the Pinelands Commission’s jurisdiction (WH-5):

Serving the needs of an existing Pinelands business alone satisfies the CMP’s Forest Area land use standards for public service infrastructure, based on existing Commission precedent. Thus, on this basis, because the proposed pipeline serves the BLE plant, an existing Pinelands business, more than 95% of the time, it primarily serves only the needs of the Pinelands.

Determining whether or not the pipeline will benefit residents is “not necessary to demonstrate CMP conformance.”

In other words, a pipeline built by one fossil fuel company, exclusively benefiting another fossil fuel company, whose business resides in the Pinelands, but the vast majority of whose customers do not…such a pipeline completely satisfies the Pinelands Commission’s Comprehensive Management Plan.

A 24-inch pipeline running at 437 psi has the potential to carry many times more gas the BL England plant can even process. This, along with the massive 30-inch, 722 psi sister pipeline running southeast from Chesterfield, NJ to Ocean County, suggests that much of the gas is not for domestic use. (The higher the pressure, the farther the gas is intended to travel.) Instead, it is largely suspected to be sold for profit into the regional grid or exported internationally for issues of profit or national security. (Perhaps it is intended as a desperate attempt to prop up the struggling Atlantic City?) Regardless, these facts further undermine the argument that the pipeline “primarily serves the Pinelands.”

Aside: That both these New Jersey pipelines ultimately lead to the same general location (the South Jersey coast), along with the aggressive expansion of pipelines across the country, it seems that this network of pipelines is being designed in the same manner as the internet; where the massive redundancy of its computers and the connections between them is designed explicitly to keep the overall system robust, even if a substantial number of nodes or pathways are taken out.

Commissioner Lohbauer testified during the commission’s final vote on February 24, 2017, that the original planners and commissioners feared exactly this possibility: that a pipeline would cut entirely through the Pinelands protected area, where the source, destination and beneficiaries of that energy would all be completely outside of the protected region.

Their fear is now a reality.

—

By: Jeff Epstein, 3/7/2017
Edited by: Ben Szioli
Subject assistance by: Becky Free of Pinelands Preservation Alliance

Jeff is the co-founder of Citizens’ Media TV. He was a super-volunteer for Bernie Sanders, was one of around forty candidates in the country to be personally endorsed by senator, and was a pledged delegate at the 2016 DNC. Jeff is also a finalist for Brand New Congress. You can see more of his writing on his blog.