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ALBANY REPORT
Vol. 22 - No. 1
Spring 2003
Inside this Issue:
The Budget After the Overrides: Environment Gains in Legislature's Plan
by Jeff Jones
In April, Albany’s long winter showed no signs of ending. Tulips fought through the hard ground, only to be encrusted in ice, covered in snow and frozen by temperatures more appropriate to January. Like the tulips, a famous Albany show, the state budget also peeked through, only to face the hard frost of disagreement between Gov. George Pataki, Senate Majority Leader Joe Bruno and Assembly Speaker Shelly Silver.
But in May there was a thaw, at least between Bruno and Silver. For lawmakers besieged by constituents angered at the Governor’s education and healthcare cuts, the unthinkable happened. The leaders negotiated a two-house budget that raised spending, they said, by $1.9 billion dollars and Pataki refused to go along. He soon found himself facing a Governor’s worst nightmare – veto overrides in both houses. The environmental community was very much involved in the drama, with revenue and spending key in several environmental issues. Here is a summary of several successes that Environmental Advocates (EANY) fought for:
The Environmental Protection Fund (EPF)
For the second year in a row, more than 50 groups worked together as the Friends of the EPF Coalition, co-chaired by The Nature Conservancy and EANY. The coalition had, as its baseline, a request for a minimum EPF appropriation of $125 million, with the money dedicated for the fund’s historic purposes. The Governor’s executive budget, however, proposed spending only $92 million, with another $33 million appropriated for unspecified capital projects and staffing. The Legislature restored the fund to the full $125 million. Money available for farmland preservation and recycling were among the categories that saw significant increases over the Pataki plan. Unfortunately, the Legislature repeated last year’s practice of moving all excess money that has accumulated in the EPF to the General Fund. That amount is estimated at $43 million.
Waste Tires
New York is plagued by waste tires. Millions of tires are stored in unstable, unhealthy and volatile dumps, many located on former farmland. The state needs to invest money to stimulate recycling and reuse industries that will reclaim and put to use the materials in abandoned tires. EANY, through its leadership in a waste tire working group, advocated for the creation of a waste tire fund that accumulates modest fees charged to new tires. The deficit and revenue shortfall made this the year that such a fund was finally considered. Although advocates had suggested a fee of $1.25, with 25 cents going to tire dealers to help defray costs they may incur under the program, Pataki upped the ante, and raised the fee to $2.50 in his budget. Of that, 25 cents would still go to the dealers. But the Governor also proposed putting only 25 cents into the tire fund. The remaining $2.00 would go to help close the budget gap. The Legislature, recognizing that more money would be needed to make the tire recycling program work, but unwilling to tamper with the Governor’s new found source of state revenue, simply expanded the fee program to include an additional category of tires – those that come on brand new cars purchased at dealerships. As a result the new tire fund will be launched this year. It is expected to generate between $8 and $9 million in revenue.
Superfund/brownfields
Never has the Legislature been closer to crafting a comprehensive plan to deal with toxic sites. A Senate/Assembly Superfund/brownfields bill is a real possibility this year. The Governor and the Senate propose spending $138 million for the program. The Assembly wants to invest $200 million annually. Aside from $28 million, which the Legislature included in its budget and is available now to pay for Department of Environmental Conservation staff and ongoing cleanups, additional spending on state Superfund and brownfields sites awaits a post-budget resolution.
Healthy Schools
Restoring the Governor’s education cuts became a major priority for state lawmakers this year, especially as suburban constituents fearing double-digit property and school tax increases besieged members of both the Senate and Assembly. Buried within all the talk over funding for pre-Kindergarten programs, class size and afterschool programs, was an appropriation of $50 million for what is referred to as “minor maintenance and repair.” This budget line is used by the state Education Department to fix environmental hazards in schools, like leaky roofs that can lead to toxic mold outbreaks, and to protect or improve indoor air quality. The Governor left it out of his spending plan, but it was restored by the Legislature after an advocacy campaign led by the Healthy Schools Network.
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In the Air
by Anne Reynolds
Air pollution policy in New York is evolving, with several top anti-pollution priorities being addressed outside of the Legislature. The Department of Environmental Conservation (DEC) is finalizing a requirement for analyzing the impact of small particulates as part of the state environmental quality review (SEQRA) process and is developing new pollution standards for small electric generators. The state Public Service Commission (PSC) has begun crafting rules to make good on Gov. George Pataki's renewable energy commitment. And the report of the Governor's Greenhouse Gas Task Force, released in April, recommends an aggressive, mandatory cap on carbon dioxide emissions from in-state power plants. For a closer look:
Carbon Cap Needed for Climate Goals – The report of the Governor's Task Force is available to the public at www.capcarbonnow.com (under What's New). For the electricity sector, the report recommends a carbon cap of 25 percent below 1990 levels by 2010, combined with a renewable energy requirement and continuation of current energy efficiency spending. The second major recommendation is a suite of initiatives to reduce transportation emissions. The analysis demonstrates the efficiency of an in-state power plant cap. The Governor, however, has reached out to the governors of the 10 other northeast states, initiating a 90-day process to discuss a regional cap.
Defining Renewable Energy – The PSC has begun the process of devising rules to implement the Governor's call for a significant increase in the amount of electricity bought in New York that is generated from renewable sources. The Renewable Portfolio Standard (RPS) Case now has over 125 parties working on the initiative's complex rules. Clearly wind and solar power should count as renewable. But large-scale hydro power and electricity generated from the burning of municipal trash should not. Environmentalists participating in the case have been debating these and other issues with industry representatives and other interested parties. For more on the RPS Case, visit www.dps.state.ny.us/03e0188.htm.
Distributed Generation – The DEC pledged to establish new standards for small electric generators, in the belief that these technologies – referred to as distributed generation – have a growing role in providing electricity. While predictions of increasing micropower use are coming true, the new pollution standards are still in the planning stages. An ongoing DEC process includes as environmental stakeholders EANY, the American Lung Association of New York State, the Pace Energy Project and the Natural Resources Defense Council. So far, DEC has put forward five white papers and some draft numerical standards which fall far short of the advocates' position. Learn more about micropower at www.eany.org/reports/micropower.pdf.
A Small Victory for PM2.5 – The DEC has begun to address the importance of small particulate pollution – known as PM2.5 – by working to develop policies to require an impact analysis under the State Environmental Quality Review Act (SEQRA). PM2.5, very small particles of soot, is a key pollutant in high asthma-rate urban areas.
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Director's Chair
The exasperating ritual politely known as the state budget process took us to new levels of acrimony this year, but in many ways it followed a now predictable pattern: a lot of noise and very little visible progress for months on end, despite the famously disrespected April 1st deadline. The aim of the noisy is to attract sufficient attention to create power behind their demands. In this way, even the least powerful have some hope that there will be something for them when all is said and done.
There is little hope for the silent. A stiff upper lip may be admirable in some circles, but not the one surrounding the Capitol from early January ‘til the snow melts in July. Unfortunately, the one person in the state who is officially charged with the protection of the environment can be counted on to be stoic, and therefore ineffectual, in the budget storm: Department of Environmental Conservation Commissioner Erin Crotty.
Commissioner Crotty claims that she can make do with severe cuts in staff and resources. At this year’s budget hearings she did not – could not – ask the Legislature for money denied her by her boss, the Governor, in his spending plan. This perennial posture practically assures that the Governor’s numbers will stand, with the Legislature hearing from plenty of constituents who have no qualms about decrying damaging funding cuts. And there will be damage at her agency.
Despite our frequent differences, we rely on the Department of Environmental Conservation (DEC) as the primary agency responsible for the day to day work of ensuring the health and security of New York’s natural environment. For the past decade, however, the number of salaried employees at the DEC has consistently decreased, leaving too few people to do an overwhelming amount of important work. If DEC staffing levels are reduced as proposed in the coming year, there will be 574 fewer agency professionals protecting the environment than there were in 1999 – nearly 800 less than in 1995. The reduction in staffing over the years has already left the agency hobbled, with some programs existing at a barely nominal level. It cannot withstand this year’s cuts without serious consequences for the environment. The fact that a large percentage of these cuts will be made through retirement incentives does not provide much solace, considering the significant amount of institutional memory that upper level employees take with them when they leave. And attrition often results in random staffing cuts that don’t take agency priorities into account.
Commissioner Crotty has made a valiant but unconvincing case that she can make do by backfilling critical positions, combining bureaus, and working more efficiently. But she and her executive staff are doing triage on an agency that is already on life support. This year environmentalists need to pay more attention to DEC’s plight and be prepared to speak up for the agency as the Governor’s staff prepares next year’s budget.
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The Path to Enlightenment: Trying again for a light pollution bill the Governor can support
Two years ago, legislation to control light pollution passed both the Assembly and the Senate, with hardly a negative vote. Environmental Advocates, along with Sensible and Efficient Lighting to Enrich the Nighttime Environment (SELENE) and other groups that favored the legislation, considered it one of the more important victories to emerge from the 2001 legislative session. Unfortunately, the bill languished on Gov. George Pataki’s desk where, without his signature, it eventually died.
Now, thanks to the persistent effort of the bill’s primary legislative advocate, Assemblyman Pete Grannis, and his staff, the law has been reborn as the Healthy, Safe and Energy Efficient Outdoor Lighting Act (A.6950). Grannis, a Manhattan Democrat, and dark skies advocates from across New York, believe the new bill addresses the Governor’s concerns. It passed the Assembly Environmental Conservation Committee in early May, and seems headed for an affirmative vote on the Assembly floor. Adding to the growing optimism, Senate Environmental Conservation Committee Chair Carl Marcellino is sponsoring the bill in his house (S.3003), where it has already passed the Environmental Conservation Committee he chairs. Marcellino is from Long Island where six towns have passed outdoor lighting ordinances. Both lawmakers say they consider it a priority this year, greatly increasing chances that Pataki will again have the opportunity to sign this historic legislation into law.
Much of the lighting used to illuminate the outdoors is wasted. As much as 30 percent is reflected skyward, wasting energy, confusing wildlife and frustrating night sky watchers. The energy demand from misdirected, unnecessary and inefficient outdoor lighting requires power plants to produce more electricity, causing more pollution. It is estimated that 6 million tons of coal are used every year to meet the demand of excessive lighting fixtures. Misdirected uplighting alone costs the nation’s power consumers an estimated $4.5 billion a year in energy bills. Excess lighting also directly affects New York’s wildlife. In the Capital District, a state entomologist documented the migration of moths from the east to the west side of the Albany Pine Bush because of light pollution from Crossgates Mall. Similar examples play out nightly, as overlighting and poorly planned outdoor light positioning disrupt the natural order for nocturnal plants and animals.
Under the proposed law, the state Department of Environmental Conservation (DEC) and the New York State Energy Research and Development Authority (NYSERDA) would develop efficiency standards for new and replacement outdoor lighting by state agencies and public corporations, and provide guidance for roadway and public grounds nightlighting by local governments through the preparation of model ordinances. Addressing concerns that the bill could lead to a flood of litigation, the proposal defines light trespass – a term applied only to private property situations – and outlines a means for applying this principle in order to reduce fugitive, unnecessary glare. The measure also empowers the DEC commissioner to identify appropriate areas to establish dark sky preserves to protect nocturnal wildlife and enhance night sky viewing. New York residents would be informed of energy savings and other advantages of efficient and well-planned outdoor lighting through educational materials distributed in required billing notices by electric service providers.
To address the concerns that led to the Governor’s pocket veto, Grannis added a specific formula for determining lighting efficiency. And provisions in the light trespass section have been tightened to limit municipalities’ exposure to litigation, reduce the enforcement burden on DEC and local code officers, and provide ample opportunity for corrective action before penalties are applied. With the state and nation at a challenging energy crossroads, this measure is particularly timely. Those concerned about the environment, consumers and night skygazers are not the bill’s only beneficiaries; thoughtful and professionally engineered lighting will help bring considerate aesthetics and an improved sense of civil relations to communities throughout New York.
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Hudson River PCB Update
No one expected that implementing the Environmental Protection Agency’s (EPA) Record of Decision on the Hudson River PCB cleanup would be speedy. But there has been plenty of activity in recent months. Here’s an update on some important developments:
- In February, Friends of a Clean Hudson (FOCH), the 13-group environmental coalition that is leading the fight for a PCB-free river, issued its first annual Hudson River PCB Report Card to mark the anniversary of the EPA’s cleanup order. Four grades were given:
- Gov. George Pataki earned an A-minus for his influential role in the EPA’s cleanup decision and because his Hudson River Task Force, led by the state Department of Environmental Conservation, has done a good job of giving everyone interested in the cleanup a place to learn and be heard.
- The EPA earned a B for improving the way it has begun to address the concerns of local residents and others interested in the fate of the river. The opening of a regional field office in Ft. Edward where community members can get the information they need to understand the project was a particular achievement. The subsequent announcement by the EPA that it was delaying the cleanup schedule by a year due to protracted negotiations with General Electric – work is now scheduled to begin in 2006 – was viewed critically by members of FOCH and will probably affect the agency’s grade next year.
- For its ongoing attempts to delay the cleanup process and its failure to pay all costs incurred to date under the federal Superfund law, GE’s grade was a D.
- Congressman John Sweeney’s grade was also a D. As the area's representative, Sweeney was marked down for failing to attend, or send a representative to, meetings of the Governor’s Task Force. He also was downgraded for creating his own advisory group, and only inviting dredging opponents to serve.
- The most exciting development on the river has been the emergence of Hudson River Citizens Along the River’s Edge (HudsonCARE). This grassroots group headquartered in Fort Edward was energized by many, including area resident Denis Prevost. For more than two years, he went door-to-door in contaminated Fort Edward neighborhoods asking neighbors about cancer and other diseases with suspected or known links to toxic contamination. His study prompted state Health Department officials to increase their own investigations. With a Main Street office that is open to the public, HudsonCARE has become an important local voice for those worried about the public health threats caused by PCBs.
- During the last week of March, Prevost and Elaine Hills represented HudsonCARE at the First Annual PCB Congress. Designed to bring together representatives from communities across the country fighting PCB contamination, the two-day event at Fairfield University in Connecticut was highlighted by a one-hour protest at the nearby entrance to GE’s World Headquarters. Hudson River activists joined with representatives from nearly 20 other impacted communities. Participants came from as far away as Alaska and Alabama. The session’s first day featured a presentation by State University of New York School of Public Health Professor and EANY Board Member Dr. David Carpenter, whose pioneering research on the human health impacts of PCBs is receiving international recognition. The second day of the Congress included a discussion of future activities, including plans to work with members of Congress, particularly California Senator Barbara Boxer, who is leading the fight in Washington, D.C. to keep the federal Superfund program alive. d
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EANY Around the Capitol
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Regulatory Watch: Keeping an Eye on New York State's Agencies
If the number of citizens getting involved in environmental decision-making is any measure, the Environmental Notice Bulletin (ENB) is not very successful. The ENB is the New York State Department of Environmental Conservation's (DEC) primary mechanism for keeping the public informed of and involved in important environmental projects, but it doesn't appear to be doing a very good job of reaching the public. In an attempt to assess the depth of the failure, Environmental Advocates of New York (EANY) contacted the DEC to collect some statistics about public response. We chose a single issue of the ENB from the spring of 2002 and talked to the listed officials for the 46 permit application notices. Though each notice provided several weeks for public comment, there were only 16 total responses to nine various applications. And three of them were triggered by a notice in a newspaper. EANY has written to DEC Commissioner Erin Crotty detailing its concerns about the ENB, and asking that she convene a task force to examine the effectiveness of the bulletin and to determine how better to engage the public.
The purpose of the ENB, according to the legislation that created it, is to encourage public participation in the government review and decision-making process and to promote public understanding of government activities. Begun as a paper publication mailed to subscribers, today the ENB is web-based and available online every Wednesday. It contains information about pending environmental actions and decisions including proposed and adopted rules, completed permit applications, environmental impact statements and DEC hearings. Unfortunately, too few are aware of its existence.
Even those who know how to access the ENB are faced with the ubiquitous use of acronyms and terms which require prior education on the unique peculiarities of environmental regulation. There are also references to statutory provisions without clear explanation, in lay language, of what the environmental implications are. Perhaps the biggest problem is that the ENB only reports current events; to learn about previous steps in a project's history, a reader would have to search through every past issue for notices. There is no index by subject, project or location.
Take for example the St. Lawrence Cement project, a proposed 1,800-acre cement complex in Columbia County that was first listed in the ENB in February of 1999. Since the initial notice of intent to construct was filed, the St. Lawrence Cement project has generated numerous notices posted to the ENB. For those people interested in bringing themselves up to date on past actions, each weekly issue of the ENB since the winter of 1999 would have to be reviewed for any mention of St. Lawrence Cement. [For more information on the St. Lawrence Cement Project visit the Friends of Hudson website at www.friendsofhudson.com.]
EANY is interested in hearing from its members about their experiences with the ENB and is looking for suggestions for its improvement. In the meantime, EANY encourages its members to visit the DEC website and examine the ENB for projects of interest. Below are two examples. The first seeks public comment and the second announces a new DEC policy.
-Enforcement of Petroleum Bulk Storage – May 28, 2003: Petroleum bulk storage leaks are one of the primary causes of petroleum contamination in New York's groundwater. In an effort to standardize the procedures used by DEC to address violations of the petroleum bulk storage regulations, the department has issued a draft Enforcement Guidance Memorandum Concerning Petroleum Bulk Storage. The draft is available at www.dec.state.ny.us/website/ogc/pbsiep.pdf. Comments must be submitted in writing by 5:00 p.m. on June 27, 2003 to: Philip Lodico, Senior Attorney, NYSDEC Division of Environmental Enforcement, 625 Broadway, Albany, NY 12222-5500.
-Environmental Justice – March 19, 2002: The department has issued a Commissioner Policy on Environmental Justice and Permitting. By incorporating environmental justice concerns into the environmental permit process, the DEC is attempting to bring equity to a program that is often criticized for being unjust. The policy is available at www.dec.state.ny.us/website/ej/index.html.
For more information about EANY's Regulatory Watch program, including a sample Freedom of Information Law request letter, visit: www.eany.org/issues/regwatch.html.
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Albany Adieu: Pesticide Project Director Audrey Thier Moves On
We’ve said goodbye to many staff members on these pages, but few have left a legacy like Audrey Thier's. Audrey departed Environmental Advocates in January to take a well-deserved break from Albany politics. As pesticide project director for over four years, Audrey led EANY to important victories in the fight for pesticide use reduction. Audrey, along with NYPIRG and other groups, worked to get the state Pesticide Neighbor Notification bill passed and signed into law. At the county level, she helped win adoption of the new law in six counties, and worked to pass pesticide phase-out ordinances in eight municipalities. The annual pesticide reports she authored, a review of data contained in the annual reports generated by the pesticide reporting law, helped shed light on some of the dangerous pesticide use trends in the state. But more important to her coworkers and colleagues is Audrey's wonderful spirit and warmth. She will be missed in Albany.
Three times a year a new group of interns arrives and those who have been working here move on. Robert Gorrie was a senior Environmental Studies major at Skidmore College. During his stay Rob worked on air and energy issues, in particular new source review reforms and power plant siting. Elyse Levy, who came with a background in water issues, worked on wetlands and other water-related matters. Elyse has studied at the Woods Hole Marine Biological Laboratory in Massachusetts, the Bermuda Biological Station in Bermuda and St. Johns University in Newfoundland. She just graduated from Union College with a degree in Environmental Studies. Robert Maron, also a Union College graduate this year, researched the environmental impacts of hydropower facilities in New York, assisted in monitoring the Legislature and in our bill memo process. Nathan Oliver, a recent graduate from Elon College in North Carolina where he was active with the Sierra Student Coalition, worked on forestry and wilderness issues.
Our current interns are Shannon Brescher and Darrick Evensen. Shannon is a student at Cornell University majoring in communication in life sciences. In addition to her classes, Shannon is a staff writer for the Cornell Daily Sun covering the campus politics beat. Darrick just completed his freshman year at Princeton University where he is studying politics. Darrick was valedictorian of his Averill Park High School class and was editor-in-chief for a local paper’s sports page.
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The 2003 Advocate Awards
Make plans now to attend the 2003 Advocate Awards, Environmental Advocates of New York's annual gala. This year's event will be held Monday evening, November 10th at the Yale Club in Manhattan.
Each of the 2003 Advocate Awards recipients contributed significantly to the protection and preservation of some of New York's most special places. Carol Ash is executive director of the Palisades Interstate Park Commission. Tim Barnett is vice president of the Nature Conservancy and past executive director of the Adirondack Nature Conservancy/Adirondack Land Trust. Rob Pirani is environmental director of the Regional Plan Association. We invite you to join us in paying tribute to three of New York’s most effective environmental champions.
For information about tickets or placing a congratulatory ad in the program book, contact Patti Kelly at 518-462-5526, ext. 224 or pkelly@eany.org.
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