Tuesday, December 1, 2009

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


Kristina in Greenburgh said...

Thank you so much for all of your hard work! I am a Greenburgh resident and was hit very hard by these horrific actions by Con Ed and Lewis Tree Company, as my property - once wooded and private - now sits open to about one mile of the Sprain Brook Parkway. I am reading and researching every day, and I am glad to know that so many others are working to hard to stop Con Ed and, hopefully, teach them to act respectfully toward our planet.

heidi Leigh said...

Reading this clarifies what I was afraid of; that they are crazy! It is just so illogical to create so much destruction, and with such utter disrespect; it is just unrcontionable behavior to me. Everyday I feel furious about the nearly 30 feet that was hacked out of our great spruce tree, by the three men who were all on our private property with no communication...no notification....to clear a private wire on my neighbor's property that we would have been happy to bury. Grrr... If a group of outraged citizens with shotguns (metaphorically speaking) is what it is going to take, count me in! -Heidi in Irvington