Wednesday, December 16, 2009

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.  Proposed protection zones may be located on village property, village easements, school district properties or private property.

Sunday, December 6, 2009

Upcoming Con Ed Pruning? - Set Up Action Plan Now!

If your town or village has been notified by Con Ed of upcoming Line Clearing operations, please have you municipal officials set up an action plan now before Con Ed pruning trucks are idling on your streets. 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 (or whichever contractor) 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.

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