Wednesday, December 23, 2009

Upcoming Events of Note

Announcements from email by Paul Feiner:

The Town of Greenburgh has completed the first draft of our Tree Technical manual. The Dept of Community Development and Conservation would appreciate it if comments would be submitted by January 11, 2010. To review the manual, please go to:


Senator Andrea Stewart Cousins and I will join other Town Board members on a site inspection of areas impacted by the recent Con Ed tree clearings. A short meeting will be held at Greenburgh Town Hall at 2 PM followed by the site inspection. Greenburgh Town Hall is located at 177 Hillside Ave.

If your property was impacted by the tree clearing that took place recently and you’d like the Senator to consider stopping by – please advise. Con Ed claims that the tree clearing took place near the transmission power lines to prevent outages. Some neighbors object: they believe Con Ed cut trees that were not close enough to the transmission lines to cause disruptions.

- Paul Feiner

Wednesday, December 16, 2009

Unchopping a Tree by Maya Lin

The Haunting, Beautiful "Unchopping a Tree" Video You Must See - The latest work from Maya Lin is a green call to action.

World renown American artist and architect Maya Lin -- designer of the Vietnam Memorial in Washington -- is in Copenhagen today with the What is Missing? campaign. As part of this memorial she has unveiled a stunning multimedia piece called Unchopping A Tree.

The slow-burning, reflective piece features ethereal music by Brian Eno. "If deforestation were happening in your city, how quickly would you work to stop it?" the video asks, pointing out that 90 acres of rainforest are destroyed every minute. Deforestation threatens half of the world's species, and is responsible for 20% of global warming emissions.

We can reduce emissions and protect species. "Together we can save two birds with one tree," the piece argues.

Lin debuted the work at the Support REDD+ Gala, which supports the UN program that aims to give developing nations financial incentive to keep their forests standing. Under the What is Missing Foundation?, Maya will be awarding six grants to organizations and projects, including the Carbon Fund and Bonobo Conservation Initiative, that show that REDD+ can be and is successful.

Lin is no stranger to environmental work. She recently completed a restorative "wave field" at New York's Storm King Art Center. This year she completed "Silver River," her first work of art in Las Vegas, an 84-foot cast of the Colorado River made entirely of reclaimed silver. With the sculpture, Lin wanted to make a statement about water conservation in parched Nevada.

Posted from The Daily Green.

More Analysis of Con Ed's ROW Rights and Responsibilities

From a May 17, 2007 email by Mike Sigal to Paul Feiner:


This email is being sent on behalf of Dan Rosenblum and myself. We are both members of the Greenburgh Conservation Advisory Council. I am a retired business lawyer, and Dan is a Senior Attorney of the Pace Law School Energy Project and also a former Commissioner of the Illinois Commerce Commission.

As far as we can tell, a utility in NYS does not have the right to override local municipal law with respect to tree cutting on private rights of way on which "distribution" electric lines are situated. Whether a utility in NYS is exempt from municipal regulation with respect to tree cutting on public rights of way on which "distribution" electric lines are situated would depend on the terms of the right of way and/or franchise agreement granted by the municipality.

We base these conclusions on: (i) Article 2 of the Transportation Corporation Law (Gas and Electric Corporations), (ii) provisions of the NY Public Service Law, and (iii) the Public Service Commission June 20, 2005 Order in Case 04-E-0822 (Enhanced Transmission Right-of-Way Management Practices By Electric Utilities).

I have also had informal discussions, via phone and email, with Richard Berkley, counsel to Assemblyman Brodsky, who at the request of Town Councilman Steve Bass has been very helpful in providing background on the legal framework. Dan Rosenblum has had separate informal discussions with a PSC lawyer. The conclusions herein, while informed by those communications, are ours alone.

A. A few background facts, as we understand them to generally be: "Transmission" electric lines move electric energy between points of supply and points at which it is transformed for delivery to consumers. "Distribution" electric lines deliver electric energy from substations to consumers. Transmission lines and subtransmission lines are high voltage, with voltages up from 69 kilovolts. Distribution lines are lower voltage, with voltages around 34 kilovolts.

B. Article 2 of the Transportation Corporations Law, in Section 11(3), provides that

"electric corporation . . . shall have power to . . . supply electricity for heat or power in cities, towns and villages within this state; . . . to lay, erect and construct suitable wires or other conductors, with the necessary poles, pipes or other fixtures in, on and under the streets, avenues, public parks and places in such cities, towns or villages, with the consent of the municipal authorities thereof, and in such manner and under such reasonable regulations, as they may prescribe . . . ." (emphasis added).

C. The Public Service Law also is relevant to activities of utilities in the State.

Section 130 of the PSL provides that "notwithstanding any other provision of law, no . . . municipality. . . may require any approval, consent, permit, certificate or other condition for the construction or operation of a major facility." Section 120 defines "major utility transmission facility" as (i) an electric transmission line of 125 KV or more extending one mile or more or (ii) an electric transmission line of 100-125 KV extending ten miles or more.

Thus, the PSL specifically preempts local municipal regulation with respect to transmission lines, but does not specifically preempt local municipal regulation with respect to distribution lines. An inference under rules of statutory construction would be that, by specifically preempting local municipal regulation with respect to major facilities, the PSL is not preempting local municipal regulation with respect to distribution lines. If the PSL automatically preempted all local municipal regulation with respect to all electric lines, Section 130 (preempting only with respect to major facility transmission lines) would be superfluous.

D. The Public Service Commission administers the PSL. In 2005, the PSC issued a major order relating to effective right-of-way management in order to assure reliability of electric power delivery: June 20, 2005 Order (Enhanced Transmission Right-of-Way Management Practices By Electric Utilities). This Order relates only to "bulk and other critical transmission facilities" and to "non-critical" transmission facilities as prescribed by the PSC. (P. 30) The PSC determined that "69 kV appears to be a reasonable voltage threshold" for coverage of the Order. (P. 17) The Order thus does not cover lower voltage distribution facilities.

Also, it is worth noting that, even with respect to the major facilities transmission lines covered by the Order, the utilities "must continue to evolve and develop effective danger tree programs that incorporate the appropriate balance between attempting to attain zero tree-caused outages and the corresponding cost, public acceptance and environmental impact of these programs." (P. 13)

E. Rights of way on which distribution lines are situated are either from a public owner or private owner of the underlying property.

ROWs and/or franchise agreements granted by a municipality may, or may not, have granted the grantee utility an exemption from municipal regulation. Each relevant ROW/franchise agreement relating to municipal property would have to be reviewed.

ROWs granted by a private property owner could not legally grant to the grantee utility an exemption from municipal regulation. A private property owner is subject to municipal regulation, and a private property owner when he/she grants a ROW to an utility could not have granted an exemption from municipal law to the grantee utility.

Considering the above law and facts, in order to protect the residents of the Town, both in Villages and Unincorporated Greenburgh, we would suggest that the Town take the position that Con Ed is NOT exempt from local municipal regulation with respect to tree cutting on private and public rights of way on which distribution lines are situated. If Con Ed has a legal basis for a different position, Con Ed should demonstrate in writing to all relevant Town and Village authorities.

Sunday, December 13, 2009

Legal Analysis of Con Ed Distribution Line Clearing Rights and Regulations

This pdf document was prepared last month by Irvington resident Pat Gilmartin as an informal legal brief to the Village of Irvington and it has just been provided to me for use in upcoming GEF working group discussions covering Distribution Line ROW management.

This provides pertinent analysis in conjunction with the review of Greenburgh's town code Section 260A on Utility ROW rights and responsibilities, demonstrating a strong basis for assuming the viability of creating a model regulation for adoption by local and regional municipalities.

It also provides a basis for the notion of a protected tree (of historical, specimen or aesthetic value) as well as tree protection zones (similar to that of view sheds) such as the row of Sycamores on the west side of S. Broadway along the Columbia Nevis frontage. Such "overlay protection zone" concepts are currently part of the draft revision to Irvington's Tree Protection Ordinance. In combination with this Section 202 Tree Protection Code update, a list of proposed protection zones is being compiled. If you are a village resident and have specific suggestions for protection zones or specific trees to be protected, please forward your ideas to Proposed protection zones may be located on village property, village easements, school district properties or private property.

Thursday, December 10, 2009

Con Ed Needs More Money From You

Con Ed is in the process of renewing its electric customer rate with NYS PSC. The docket is located at:

As shown, the application is for a sizeable increase. The top document (i.e., most recent of Dec 1st, #84) on this page provides notice of public hearings on this rate application, and includes a public hearing in Greenburgh on January 11th.


The PSC is holding the hearings. A PSC (actually NYS Dep't. of Pub. Service) administrative law judge will preside to receive input on the rate increase proposal.

The document that is the basis for the proposed rate increase does not appear to have any direct reference to allocating funds for vegetation management. However, such fund allocation must occur, so commenting to PSC on the amount of funds & resources that Con Edison expends on vegetation management is appropriate. And, if the rate increase proposal is silent on this point, perhaps it needs to be added and made explicit.

This could go both ways, as a large fund allocation might imply cutting more trees. On the other hand, an adequate allocation should be made such that the utility does not perform a one-time cutting that is supposed to "last" 20 years.

Thanks to Chris Crane, Counsel, Committee on Environment & Energy, Westchester County Board of Legislators for this "heads up" alert to the upcoming rate hearings.

Sunday, December 6, 2009

Suggestions for "Next Steps"

On Dec 5, 2009, at 10:26 AM, Paul Feiner wrote:

I am wondering if the community would be interested in meeting in the near future (if holiday schedules make December inconvenient we can meet in January). We should come up with one or two manageable initiatives that we can lobby the PSC to mandate.

We can meet at Greenburgh Town Hall. Among suggestions:

1) Require notification to local governments re: extent of tree cutting before tree cutting takes place…

2) Require Con Ed (other other utility companies that clear cut trees) to replant replacements. (we just received trees from Con Ed which we planted on Sprain Road yesterday---not enough, but better than nothing. These trees were given to us to compensate the community for some of the trees cut 3 years ago). The PSC should come up with a formula for replacements.

3) Requirement of some noise abatement if trees acted as a noise barrier between residential neighborhoods and busy parkways/highways.

4) Requirement that Con Ed submit proof that trees being cut can impact wires before trees are cut.

These are just a few ideas. My suggestion: We meet during the week of January 11th. I’m available on that Monday or Tuesday evening. Any thoughts?

Greenburgh Town Supervisor

To which I have just replied:

I know that GNC (Greenville Nature Center) is establishing a working group to focus on several elements related to the Con Ed and PSC question. This forum would be open to others outside of the Town and villages, including anywhere in the county or in nearby counties such as Rockland.

Some of the initial goals discussed would be to generate the following:

  • PSC Petition -> review / appeal 2005 Transmission Line Guidelines. Require a science-based determination of guidelines.

  • Resolution for municipal-level adoption -> calling for state investigation of PSC SEQR process, Con Ed implementation, etc.

  • Sample Tree Code Module -> control over ROW activities by Con Ed or other utilities (based upon Greenburgh 260A.)

These are in some ways broader and in some ways more specific than your suggestions, but do not in any way exclude yours, rather build from them as a base. For example, the timely notification requirement is very important. Honest, timely disclosure to both municipal and private stakeholders. Allowing for on-site review of actual in-field decision criteria relating to clearance guidelines. Clear marking of affected trees as to prune vs. removal.

But, to my mind, the core issue is the legality of the original SEQR process itself that PSC & Con Ed have used to give a carte blanche to their actions.

Requiring replacements for removed trees is good. Full public and scientific review of any such guidelines would be necessary - and would require a case-by-case review and approval for relandscaping. Tree valuation must be based upon age, location, species, health (condition) and more. The entire ecosystem collapses when clear cutting such as what has occurred along the transmission lines is undertaken. Simply replanting a few young trees does not resolve these impacts ranging from stormwater issues to noise and privacy issues to habitat losses.

Not to mention property value impacts. What sort of restitution should be required to be given to affected property owners?

The notion that a single blanket SEQR could or should encompass all transmission line clearings across the state (over 190,000 acres affected) is a central fallacy. This must be stopped! SEQRs for each unique line segment should be the requirement. And full public review. At this point, the lack of environmental stewardship demonstrated by Con Ed should trump any issue of inconvenience or delay in process.

Item #3 - Street noise abatement - is a delicate area. If, in the act of fixing noise issues the solution is to erect barrier walls - then you will have just implemented a potentially egregious ecological error - blocking (or isolating) migratory routes, hunting areas and habit for animals, amphibians and so forth. This in itself could cause as much long term damage as simply removal of trees.

Item #4 is very important - the site surveys of tree impacts and resulting clearance needs must be justified. In distribution line clearing, this concurrence can fall with the municipality and the private home owner locally. But for transmission line ROW, who exactly is the oversight party that should review such analysis? What sort of monitoring or inspection process exists by which to hold Con Ed (or the other state transmission utilities) to any such enhanced requirements?

There is obviously much more here to discuss, but I think we should be in good shape by early January to have an agreed list of goals / action items - for a larger meeting. I will ask Anne Jaffe to be sure that you are kept in the loop with GNC related activities, as well.

One item I thought I should mention is that GNC is considering a second Tree Roundtable for January. The subject of this roundtable would be management of street trees - especially in terms of dealing with the distribution line clearing cycles.

Local residents and municipalities need to understand what actions are available to them by which the impact of the 3 year Con Ed cycle can be mitigated:

-> Street Tree Survey - mapping type, age, health of street trees, planting zones, wire impact areas, etc.
-> Street Tree Replanting ("right tree in the right place") and yearly maintenance pruning plans.
-> Education of private home owners about planting near wire zones and proper pruning maintenance.



Upcoming Con Ed Pruning - Set Up Action Plan Now!

Larchmont, Harrison, Ossining, White Plains, Pleasantville, Greenburgh and Yonkers

If your town or village is on this list, please have you municipal officials set up an action plan now before Con Ed pruning trucks are idling at your gates. If you want advice about what steps to take, what guidelines to set into place, please consider these action points based upon our experiences in Irvington:
  • Meet with senior Con Ed management to let them know you mean business.
  • Hold a high visibility public rally in support of tree conservation and minimal pruning. Get local media involved from the onset.
  • Get to know your crew supervisor for Asplundh and project supervisor for Con Ed. Ensure the Con Ed supervisor is an experienced, certified arborist.
  • Trust but verify – meet, review & monitor every step of the way, every tree (public or private)!
  • Have a qualified Consulting Arborist on contract and "on-call" for the duration of the project cycle. Have arborist meet and review pruning expectations with Con Ed and contractor on each new street segment.
  • Highlight areas of historic or specimen quality trees for special handling. Meet & review - walk the line - ahead of time, but especially on the day of actual pruning. Insist upon supervision oversight by a senior Con Ed arborist that you are comfortable with.
  • Agree upon and publicly post the complaint resolution process. (Complaints should go to a specific project email address and to local officials such as DPW for tracking & forwarding "up the chain", and not to the generic 1-800-ConEd number.)
  • Have a Contact Escalation list (including Con Ed senior management) and a defined emergency “stop work” process to allow time-out for on-site consultations.
  • Keep the public informed (email, web, cable, clerk's office, police department) as to the daily work schedule, their rights as property owners, escalation contacts to use, etc.
  • Ensure that Con Ed and Aspludth are giving sufficient pre-notification to homeowners for all private tree pruning. There should be at least 24 hours and a contact number to set up a consultation with the Con Ed Notification Forester for the project.
  • Document your assets: take photos before and after pruning. Also try to get a written description from Notification Forester of what tree pruning you have agreed to.
  • Set up volunteer monitoring of line clearing operations. Establish neighborhood watches block by block. Observers should report any unusual, unwanted, un-agreed, or excessive pruning immediately!
  • Report any rude language or behavior by pruning crews. Sure, dealing with public is difficult, especially when it comes to emotional issues such as trees. But the crews must remain civil and professional at all times.
Longer Term Efforts:
  • Start a program of municipal street tree maintenance (eg: annual pruning, tree replacement with appropriate tree species, GPS-based street tree survey.)
  • Plan a public “Re-Leaf” Project to re-plant areas where street trees have been removed.

Friday, December 4, 2009

Trees Fall Prey - Hudson Independent December 2009

Read the article by Barrett Seaman on the front page of the Hudson Independent December 2009 issue. The article concludes with the following advanced warning for other municipalities in our region:

"All these issues will doubtless rise anew in other towns and villages throughout the county as the Asplundh crews move on to Larchmont, Harrison, Ossining, White Plains, Pleasantville, Greenburgh and Yonkers."

Along with this article, the paper carried this editorial:

Massacre of Trees by Con Ed Must Be Stopped
NOVEMBER 29 2009

Fighting City Hall has traditionally been viewed as a losing battle. So, too, has been duking it out with such established entities as the Metropolitan Transit Authority, Cablevision and the Department of Motor Vehicles.

Also in that category is Con Edison, which has a monopoly to deliver power in the region and seems able to raise rates at the blink of a light switch. The utility apparently also believes it has the green light to dismember healthy, vibrant trees whenever it pleases. In early November, Con Edison’s contractors ran roughshod through Irvington, carving up beautiful, two-century-old trees like helpless turkeys at a Thanksgiving meal. It was so nerve-racking that in a noble effort to minimize the damage, residents in the village held a vigil to watch over Con Edison’s hired guns. But this is nothing new for Con Edison. Many other communities have had similar nightmarish experiences, with most complaints falling on deaf ears, just as limbs have been falling from helpless trees along Con Edison’s damaging path.

Con Edison has argued the work is necessary to remove potentially dangerous branches and tree limbs from power lines. In many instances that is the case, and Con Ed has made some concessions, but there is an unmistakable logic that the utility has abused its authority and demonstrated a lack of understanding and compassion to the importance of trees to the overall character of municipalities in the rivertowns and elsewhere.

Something has to be done to slow down the massacre. You can lodge complaints with the Public Service Commission (1-800-342-3377 or , the state Department of Environmental Protection and elected representatives at all levels. A barrage of complaints when warranted directed at Con Edison via phone call, e-mail and letter can help..

There is always strength in numbers. But don’t hesitate. Too many priceless trees have been victimized already.

Thursday, December 3, 2009

New Blog By Residents of Sprain Road / Ridge Road Disaster Zone

From an email I received today:

We have created a blog: If you can, please visit it and post anything you've done that would be helpful for us all to know in this fight against Con Edison. You can post information without being a member. If you don't mind joining as a "follower," you will get an email notice when new information is posted. The blog is brand new, and I plan to add a "What You Can Do" section sometime soon, to identify specific people to write, call, e-mail, etc.

We have created a Facebook Fan page (Keep Greenburgh Green) in hopes to more rapidly spread awareness of what's happening on Con Edison's 190,000 acres of ROWs.

Paul Feiner (Greenburgh Town Supervisor) has sent a letter to Assemblyman Richard Brodsky, State Senator Andrea Stewart Cousins, Nita Lowey, Sen. Charles Schumer and the Chair of NYS Public Service Commission to request a meeting, locally, to discuss the damage, prevention of further damage, and parties responsible for reparations. As far as I know, there has been no response yet. My husband and I, as well as our neighbor, have all sent similar letters. It is important that as many of us as possible send letters out.

Aaron Schmidt (Greenburgh Town Forestry Officer/Environmental Planner) met with Con Edison representatives on Tuesday to discuss the fact that Con Ed did not file a Wetlands Clearance with Greenburgh prior to the clear cutting. This is a necessary document.

There have been three newspaper pieces in the last couple of weeks, and we got some coverage on Channel 12.If you know how to get us coverage on the bigger news stations, please do so. We've been writing to them.

The more research we do and the more we learn and talk to each other about our personal experiences with Con Edison since 2007, the more it becomes crystal clear that something is truly fishy about all of this. They have consistently lied and have often done exactly the opposite of what they have told us they were going to do. It is important that we unify and educate each other in this campaign.

If you can lend a helping hand, please let us know by replying to this email us with HELP in the subject line. We know everyone is busy; but the bigger entity we become, the more powerful we become.

Please, please, please get your friends, families, and neighbors on board.

Thanks for your time and interest in keeping our Greenburgh green!


Kristina & Tom Bracken
Ridge Road

Wednesday, December 2, 2009

Even in the Best of Neighborhoods - Permits Required!

Richard Gere facing $50,000 fine for tree slaughter

New York: Richard Gere is reportedly facing a fine of up to $50,000 for chopping down as many as 200 trees in Pound Ridge in Westchester. The Pretty Woman actor opened the bed-and-breakfast Bedford Post inside a restored farmhouse with wife Carey Lowell in February.

According to Bedford's Record-Review, the deforestation in nearby Pound Ridge to create a paddock for his horses was said to have not gone down too well with the neighbours, reports the New York Post.

Record-Review editor RJ Marx said, "The feeling is that he acted a bit precipitously in clearing the trees. People are somewhat disappointed that he didn't follow procedure."

Marx added, "Rather than seeking the proper channels and permits, he hired someone to cut them down. He's generally a good neighbor. It was out of character."

Another local resident said, "This is a town where money isn't an issue. What matters are good manners and caring about the community. People have been supportive of him, but I'm not sure what he was thinking."

Maybe They Should Simply Fund Ongoing Replanting and Site Restitution of Our Trees

Con Edison Saluted for Contributions to Westchester

November 23, 2009: 01:15 PM ET

The Association of Development Officers (ADO) has recognized Con Edison with its 2009 award for "Outstanding Corporate Philanthropy" in Westchester County.

ADO cited the diverse organizations the company supports and the utility's role in "contributing to and maintaining the social, cultural and economic vitality in their service area."

"The passion and commitment to improve the human condition is our common strength," said the ADO's Philanthropy Day Chair Linda Karesh. "It is fitting that we pay tribute to that strength now, as exemplified by the outstanding organizations and individuals that have been selected to be honored this year."

Con Edison's nominators included ArtsWestchester, the American Red Cross in Westchester County, the Business Council of Westchester, the Children's Environmental Literacy Foundation, the College of New Rochelle, Friends of Rye Nature Center, Greenburgh Nature Center, Grassroots Environmental Education, Historic Hudson Valley, Hudson River Museum, the Jay Heritage Center, the Newspaper in Education/Lend a Hand Foundation (of the Journal News), Scenic Hudson Inc., the Sheldrake Environmental Center, Teatown Lake Reservation, Westchester Community College, Westchester Community Opportunity Programs, the YWCA of White Plains and Central Westchester, Westchester Community Partners and the Westchester Library System.

"Today," noted Con Edison Senior Vice President for Public Affairs Frances Resheske, while accepting the award, "we are partners with more than 145 Westchester organizations -- large and small, established and emerging.

"We call our corporate philanthropy program 'Strategic Partnerships,' and our approach is simple: We work in collaboration with community partners to identify needs, and then assist in creating and funding programs that fulfill them."

An enduring example is one of Con Edison's first philanthropic efforts in the county, the establishment of the Westchester Scholastic Sports Award. Now in its 59th year, it has resulted in the presentation of more than $750,000 in scholarships to more than 2,200 students,
representing virtually every high school and community in Westchester. It is among the longest running corporate-sponsored scholar-athlete programs in the nation.

Con Edison is a subsidiary of Consolidated Edison, Inc. (NYSE: ED), one of the nation's largest investor-owned energy companies, with approximately $14 billion in annual revenues and $34 billion in assets. The utility provides electric, gas and steam service to more than 3 million customers in New York City and Westchester County, New York. For additional financial, operations and customer service information, visit Con Edison's Web site at

Media Relations

Tuesday, December 1, 2009

Tired of Dead Trees - Change of Pace

Just wanted to post a couple of "happy images" for a change of pace. Photos are from Barney Creek outside my house in Irvington taken a few weeks ago. Enjoy.

Public Service Commission as Guilty as Con Ed

From Nov 17-23, 2009 Pleasantville Examiner - editorial page:

Last week’s clear-cutting of dozens of trees by Con Edison in Pleasantville should be a very troubling sign to everyone. Whether you’re a hardcore environmentalist or would simply like to see as much beauty and parkland preserved as possible, this latest chapter isn’t just an indictment of a utility that seems to throw its weight around with impunity but of the Public Service Commission as well.

What Con Edison’s tree removal contractor did on Nov. 8—a Sunday, no less—near Nannahagen Park was a travesty. Some trees had been on the site for more than a century. Others had been planted within the past 10 years and the village had spent hard-earned tax dollars making sure the park had a thriving ecosystem.

But make no mistake about it, this was no isolated incident or accident. This has beenCon Edison’s modus operandi since the PSC issued its 2005 order. Utilities must aggressively cut vegetation to eliminate any chance that tree limbs can interfere with power lines to avoid a repeat of the massive August 2003 blackout. As a result, the PSC directed all utilities providing electric power throughout the state to devise a plan. The scenario that played out Nov. 8 is one that has been repeated in municipalities in Westchester and presumably throughout the Hudson Valley. Con Edison properly notifies adjacent land owners and municipal officials, makes it appear as though nothing more than a little bit of housecleaning will be done and a
week or two later local residents are left with an environmental disaster on their hands.

Pleasantville’s latest battle is a replay of what Greenburgh, Hastings and Yonkers have experienced in recent years, according to State Sen. Andrea Stewart-Cousins. The Examiner found that portions of Yorktown in northern Westchester and Clarkstown in Rockland County had similar fights. If a handful of municipalities that have been violated can be found so easily with a few quick phone calls, how many more around the state have seen their landscapes pockmarked by the utilities?

There are several problems with the “vegetation management” plans as the PSC likes to refer to this clear-cutting. A utility, in this case Con Edison, misleads local communities into thinking this is a relatively minor clearing or trimming of trees. There is no hint of the massive destruction that’s to come. Next, while the PSC’s order four years ago provided fairly clear guidelines of maximum tree heights depending on the proximity to power lines, the utilities appear to go overboard and are likely destroying trees that should be trimmed to avoid the expense of having to go back out and repeat the process in a few years. Finally, and perhaps most frustrating, is that the PSC, the entity that is supposed to watch out for the public good, has turned
a blind eye to the problems caused by this devastation. Until the PSC places clear and reasonable limits on what the utilities can and can’t do, hundreds of thousands of more trees will be lost, bringing all of the unwanted consequences that clear-cutting causes.

If Albany functioned like it should, then perhaps the state legislature could see fit to force the PSC to tighten up and actually look out for the public welfare. But with lawmakers unable to keep their own house in order, much less balance a budget, looking to Albany for help is an exercise in futility. Municipalities and residents are left on their own to remain vigilant. By demanding mitigation, communication and employing a full-court press on their state lawmakers perhaps the legislature will see the light and demand changes in how the PSC operates. If not, then the alternative is staring everyone in the face at Nannahagen Park.

Con Edison Tree Cutting & The Role of the PSC/DPS in Circumventing NY's Environmental Laws

Sun, Nov 29, 2009

Dear Supervisor Feiner:

I was nice meeting you on Wednesday.

As a former member of the Clarkstown Planning Board, I am well aware that your town has been a leader in promoting environmentally sensitive policies in the New York metro area.

Over the past few weeks, a significant environmental disaster has taken place in Westchester County. Many acres throughout Westchester have been transformed into a barren wasteland, as you will clearly see in the pictures below and as I believe you’ve now seen firsthand, based on calls from homeowners in your town!

Take a look at the photos… it’s as though a tornado blasted through your town and all parts of the county. Thousands of trees have been destroyed in Yonkers, Scarsdale, Hartsdale, Pleasantville, Yorktown Heights… basically everywhere.

I went around to various neighborhoods to speak with homeowners last Sunday before the holiday… it’s heartbreaking to hear their stories. Literally overnight, their property values have dropped drastically. All because of Con Edison’s cost-cutting moves and their “enablers” at the NYS Public Service Commission & Department of Public Service, which is the operational arm of the PSC.

Back in March, Con Edison’s President knowingly made false statements about his company’s plans to “trim trees” in Westchester County and NYC on or near transmission line right-of-ways to ensure service reliability. I’m attaching a copy of this press release. Here’s a portion of what he said in announcing that the National Arbor Day Foundation had just given his company an award for outstanding “tree care” near and around both transmission and distribution lines:

"We are delighted to receive this recognition. It signifies our continuing commitment to promoting, protecting and enhancing our urban forests," said Louis L. Rana, president of Con Edison. "Regular maintenance and natural pruning of trees improves electric reliability, and the trees in our service area will be with us to beautify our neighborhoods for years to come.”

When you look at the pictures, you’ll see they didn’t protect the urban forests… they destroyed them completely! And, they have no plans for mitigation and replanting, except to give a few meager plants to those who complain loudly enough.

As you’ll see in the press release, which I’ve highlighted in a number of places to show the false nature of Con Edison’s public statement, the company claimed that it was going to “trim trees,” but they didn’t trim trees – they cut them all down to the ground, which means more flooding (in a county that’s already had many flooding problems) and damage to the water quality from uncontrolled runoff and soil erosion. People had no idea this was going to happen… many were away at work while the trees were being cut and the printed notices that Con Edison provided to adjoining property owners were misleading about their true intentions. Con Edison rushed this project through, even working crews on Saturday and Sunday, just to prevent citizens, government officials and the media from stopping them.

How was this allowed to happen? The answer, which I obtained through FOIL requests, is that Douglas May, an employee of the Department of Public Service in Albany, together with his colleague, David Morrell, purposely circumvented New York’s State Environmental Quality Review Act (SEQR) and Article 8 of the Environmental Conservation Law. In order to do so, Mr. May knowingly falsified the State’s Short Environmental Assessment Form (EAF), which he was absolutely not allowed to use for the purpose of massive tree destruction over 190,000 acres in New York, in order to provide a financial benefit to New York’s utility companies, including Con Edison. The Short EAF can only be used for projects of less than 10 acres! By using the Short EAF, the PSC was not required to notify other interested agencies such as NYC DEP, EPA, Westchester Department of Planning, etc., along with adjoining property owners, as would have been required by a Full EAF.

I personally believe that Mr. May should be investigated for having certified to be “true” his answers on the Short EAF that he specifically knew to be false, as indicated in his accompanying Memorandum that I obtained via FOIL. Furthermore, Mr. May served as both “Applicant” and “Lead Agency” to prevent anyone else from finding out about what he was doing, which is in my opinion very improper.

Con Edison claimed it was “protecting” urban forests, when in fact it had planned to completely destroy them – regardless of whether or not the trees could ever pose a risk to transmission lines… and in the process they used a well-known “pro-tree” environmental group, the National Arbor Day Foundation, to give cover to its actions and make the public think the company was really doing the right thing and being “green.”

I am attaching “Exhibits 1 thru 3” containing the PSC’s “Negative Declaration Under SEQR,” along with the Staff Memorandum and Short EAF upon which the negative declaration was based that ordered the destruction of all trees in utility right-of-ways, contrary to Con Ed’s press release last March that indicated only “tree trimming” would be done.

If a Full Environmental Impact Study (FEIS) was done, as had been required by law, all interested agencies, such as your town, the EPA, NYC DEP, County of Westchester Planning Dept., and others, together with adjoining property owners, would have been notified and given the opportunity for input. In a proper environmental review, the “applicant” would not have been allowed to serve as “lead agency,” and alternatives (such as tree trimming) and mitigation (such as planting “compatible” species of trees) would have been considered. Circumventing NY’s tough environmental laws were the fastest, cheapest way to help utilities like Con Edison save money on right-of-way maintenance expenses.

In many parts of your town, the damage is now done, but Con Edison and the PSC may be planning other tactics to expand their ability to cut down even more trees, as they did in getting permission from NYC DEP for the tree removal. THIS IS SPECIFIED IN PSC CASE 04-E-0822 FOR CON EDISON’S SERVICE TERRITORY WHERE THE VOLTAGES ARE HIGH AND THE RIGHT-OF-WAYS ARE RELATIVELY NARROW.

What can be done now? The first step is to contact your local Senate and Assembly members, as well as County legislative members, to ask for hearings into this matter. Mr. May, Mr. Morrell and Garry A. Brown, Chairman of the NYS Public Service Commission, should be called to testify, along with senior Con Edison representatives. Experts on SEQR from NYS DEC, the County of Westchester and the Town of Greenburgh should be brought in to give an assessment of the actions of DPS/PSC.

If the hearings determine that laws were violated in any way, the matter could be directed to the proper authorities and the PSC could be forced to conduct a Full EAF to prevent further damage and implement mitigation measures for damage already done in your community such as tree planting and installing fencing in the most egregiously impacted areas, as well as drainage control measures to prevent flooding.

Another possible route is filing an Article 78 claim against the PSC regarding Case 04-E-0822. Normally, the time frame for filing suit would have already passed, however because of the wrongdoing in this case, which was specifically designed to prevent public notification, most Courts would likely allow the suit to move forward, provided that the filing is timely from the time the impropriety is learned about.

Keep in mind… we all do need reliable electric service. An Full EAF would have achieved this goal, while also protecting the environment. The outcome might have dictated removal of a number of trees, especially where the existing ROW was narrow, but it also might have required a staging of the removal, interim trimming and the planting of new trees. And trees that posed no risk whatsoever could have been left alone. Other mitigation options might have included installing fences or flood control measures, as I indicated previously.

I also think the National Arbor Day Foundation should be contacted to have them informed about how Con Edison has been using their good name to destroy massive numbers of trees without any obligation for replanting “compatible” species.

Lastly, your town board can also craft and pass a resolution that could be sent to the media and various officials (Gov. Patterson, legislative leaders, Con Ed Chairman Kevin Burke, Con Ed Board members, County Executive, etc.) expressing dismay at the complete lack of concern for the environment symbolized by the actions of Con Edison and their failure to contemplate mitigation procedures in the pursuit of cost-cutting objectives that have seriously harmed your town, its residents and the overall environment.

Please let me know if I can be of further assistance to you, and I will gladly testify at any hearings, including Senate/Assembly hearings in Albany.

Marvin Baum