Pinelands Predicament

A proposed natural gas pipeline through just 10 miles of protected land has ignited protest and political intrigue in South Jersey.

Simply put, it’s difficult to build anything in the Pinelands.

Since the state Legislature passed the New Jersey Pinelands Protection Act in 1979, regulations and standards for land use, development and natural-resource protection have been outlined in the CMP. It’s an exhaustive and nuanced document that prohibits commercial, residential and infrastructure development in certain protected areas. But not all development is blocked. Rather, the CMP promotes “orderly development by channeling growth toward appropriate areas while safeguarding the region’s unique natural, ecological, agricultural, archaeological, historical, scenic, cultural, and recreational resources.”

Overseeing the CMP is the New Jersey Pinelands Commission, an independent, 15-seat board comprising seven county-appointed members, seven gubernatorial appointees and one federal representative appointed by the Secretary of the Interior. They are the Pinelands’ stewards—and initially it was up to the commission to decide whether or not South Jersey Gas should be allowed to locate part of its pipeline in the Pines.

According to Pinelands Commission chairman Mark Lohbauer, options for this sort of project are limited. A private entity like South Jersey Gas can apply for a waiver of strict compliance, which requires the applicant to prove the project is necessary to avoid “extraordinary hardship” or satisfy a “compelling public need.” South Jersey Gas decided that hurdle was too high. Instead, the utility company went with door number two.

In 2013, South Jersey Gas sought a memorandum of agreement (MOA) between the state’s Board of Public Utilities and the commission, a procedural tactic open to projects that don’t meet CMP requirements but serve a “critical need” for the region. As part of the proposed MOA, South Jersey Gas was required to pay $8 million to the commission for land acquisition, education and preservation.

“The [commission] staff actually suggested the MOA was our best option,” says South Jersey Gas’s Fatzinger. “So we decided that was the way to go.”

According to Fatzinger, South Jersey Gas isn’t “some big, bad utility company that wants to keep the plant running because they need our gas.” Rather, he says, converting B.L. England to natural gas will provide additional electric power for the future for more than 140,000 customers in Cape May and Atlantic counties while burning cleaner fuel.

“It’s a huge benefit to South Jersey,” says Fatzinger. “And we’ve done polling on the sentiment of the people, and they are overwhelmingly supportive of this project. They’re wondering what’s the big deal? There are all these benefits, so why not?”

Opposition to the pipeline, says Fatzinger, comes from “a small but vocal group of people counterbalancing the general public’s view of this project. And their positions are not rational.”

Despite Fatzinger’s claim, opponents to the MOA included four former New Jersey governors—Brendan T. Byrne, Thomas Kean, Christine Whitman and James Florio—who signed a letter dated December 12, 2013, urging the commission to reject the plan.

“The current proposal would compromise the integrity of the Pinelands [Comprehensive Management] Plan and serve to encourage future development contrary to the vision the Plan sets out for growth and conservation in the Pinelands,” the letter states. “We believe…that the Pinelands program will only work over the long term if the plan is implemented consistently. Only then will utility companies, developers, and others in government and industry form their own long-range plans to comply with the Pinelands vision.”

The proposal came up for a commission vote on January 10, 2014. The result: a 7-to-7 tie (one commissioner recused himself). Eight votes were needed for passage, so the MOA was rejected.

And while the vote was viewed as a major victory for the anti-pipeline crowd (and a “big disappointment” to Fatzinger, who says, “We really thought it would be a 9 to 5 vote in favor of the project”), it also fueled a new round of intrigue.

Leslie Ficcaglia served as a member of the Pinelands Commission for 18 years on behalf of the Cumberland County Board of Chosen Freeholders. She opposed the MOA.

To be sure, there are other utility conduits running through the Pinelands, including power lines and natural gas pipelines. But these are allowed under the CMP because they primarily serve the needs of Pinelands residents. To that end, folks like Ficcaglia resent that South Jersey Gas has tried to make its proposed pipeline fit within these parameters. In reality, the electricity generated by B.L. England serves thousands of customers who live outside the Pinelands.

“My problem wasn’t so much with the pipeline as it was with the process being used to get it through,” says Ficcaglia. “It felt like we’d be setting a very dangerous precedent if we allowed a private company to use an MOA to conduct business in a manner that was not normally permitted in the Pinelands. That’s why we have the CMP in the first place—to prevent this type of thing from happening.”

Robert Jackson, who had been serving as one of the commission’s seven gubernatorial appointees since 2008, also cast a dissenting vote.

“I felt like South Jersey Gas was using political power and the ignorance of the public to push forward the idea that this pipeline and power plant are somehow a benefit to us when they aren’t,” says Jackson, a resident of Middle Township. “I don’t necessarily care if gas comes to that plant, but it should not be allowed to come through the Pinelands. And if I voted in favor of this, it would have sent a message to the public that the [CMP] doesn’t matter.”

But opposing the pipeline in 2014 came at a price for Ficcaglia and Jackson. Shortly after the vote on the MOA, both were bumped from the commission.

The Cumberland County Freeholders—who favored the MOA—did not reappoint Ficcaglia, replacing her instead with a former Democratic freeholder and Vineland real estate agent named Jane Jannarone. And Jackson—despite vehement protests from state legislators on both sides of the political aisle—was not renominated by Governor Chris Christie, whose administration also supports the pipeline.

“There’s no way you can convince me that I wasn’t replaced because of my vote,” Ficcaglia says, “and that’s a really scary thing to happen in the Pinelands. Because we’re not supposed to be influenced or impacted by politics. I’m sure it’s chilling to the remaining commissioners, and I’m sure that was the intent.”

Jackson wasn’t shocked when he learned that Christie would not reappoint him.

“I wasn’t angry as much as I was hurt,” Jackson says. “You have no idea how much effort, time, concern, research and travel I put into trying to protect one of the greatest jewels in the world. But when Leslie was removed, I knew I was next. This was politics at its worst. But I don’t serve politics. I serve the Pinelands. But because I didn’t cast the right vote, I got booted. And here I thought we were supposed to be independent.”

In addition to the governor, the project’s supporters include state Senate president Stephen Sweeney (D-Gloucester), and Senator Jeff Van Drew, (D-Cape May).

According to Van Drew, B.L. England is an “essential source of energy production” for South Jersey. What’s more, he maintains that the pipeline project and the plant’s subsequent conversion will provide much-needed jobs to the region with little to no environmental consequences.

“There’s a lot of confusion that this pipeline is going right through the heart of the Pine Barrens, but it’s really on the periphery,” says Van Drew. “It’s going to go under the shoulder of an existing road and may actually clean up that shoulder a little bit. And we’re looking at the entire project impacting anywhere from two to five trees. That’s all. It’s not really causing any damage, in my mind.”

As director of the nonprofit advocacy group Environment New Jersey, Doug O’Malley has not only opposed the pipeline on ecological grounds, but has also railed against the political pressure that he says has been applied to dissenting commissioners. If the commission isn’t protected from this type of “bullying,” he says business and political interests will dictate the future of the Pinelands.
“Voting against this pipeline was an act of political courage, but there was a quid-pro-quo punishment for those who voted the wrong way,” O’Malley says. “You have political leaders throwing their weight around to try and get their way, and that should give advocates a moment of grave pause.”

The most egregious of these instances, says O’Malley, was Christie’s nomination of Robert Barr as Jackson’s replacement.

Prior to his appointment to the commission, Barr served as president of the Democratic Club of Ocean City and is a leader among Cape May County Democrats. He is also an avowed Van Drew supporter. When Christie nominated Barr to the commission, there was widespread concern that the governor was trying to stack the commission with people who would swing votes in the pipeline’s favor.

“This whole issue is multilayered, to say the least,” says Carleton Montgomery, executive director of the nonprofit Pinelands Preservation Alliance. “But in total, it’s a story of a company winning political allies in order to exempt itself from Pinelands protections and going to almost any lengths to win.”

Once again, Byrne, Kean, Whitman and Florio added their voices to the debate. In a second letter, dated March 2, 2015, the ex-governors urged all 40 state senators to reject Barr’s nomination. (The nomination passed.)

“Since the Pinelands were created, I have never seen an example where this type of concerted effort was being made to run roughshod over the Pinelands Commission,” says Kean. “There’s going to be some political pressure now and then, but it’s very unusual that you’d have both the senate president and the governor wanting, in some way, to weaken the Pinelands. That hasn’t happened since the [Pinelands Preservation Act] was passed, and that’s why we felt the letter was important.”

When asked whether they received direct political pressure to vote in favor of the MOA, past and present commission members become tight-lipped.

“I didn’t have any put on me, but I know there were some conversations to push folks to vote for it,” says Jackson. “There’s no smoking gun I know of, but I do know there were some people [on the commission] who were very stressed by some of the conversations they had been having.”

Ficcaglia tells a similar story.

“We had a representative from the governor’s office sit in on some of our early meetings leading up to [the MOA vote]. And whenever I raised questions, she was not happy,” Ficcaglia says. “It was very clear from her body language and comments that she didn’t want this project questioned. And while I can’t be more specific, I can say that at least one of the commissioners who voted against it was contacted by a politician who made it clear what he wanted this commissioner to do. The whole story has been very shocking to me.”

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  1. Kevin Sparkman

    Nick DiUlio has done a good job of reporting on this complex issue. Anyone who recognizes the incredible resource we have in the Pinelands should be deeply disturbed by the backdoor politics and pressure placed on the Pinelands Commissioners and the Pinelands Commission.

  2. Wolfenotes

    Well told story, Nick. You must have good sources.

  3. glennk

    Excellent, article well written & researched. The BL England power plant isn’t even needed. That it will pollute less burning Methane ( AKA Nat. Gas) is a boldface lie. The plant as a coal burning facility was only used as a “peaker plant.” Running 24/7 it will pollute the area non-stop and yes, CO2 and Methane are primary pollutants , according to the EPA & the NJDEP.