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Guest Commentary by GreenWatch contributor Arthur J. Giacalone

(Note: Mr. Giacalone is a semi-retired attorney who lives with his wife and teenage children in the Village of East Aurora, New York and often contributes to Artvoice. This piece and other commentary and critique of New York State zoning, land use, and environmental laws can be found on his blog:  “With All Due Respect-Commentary on land use and development issues -and the judiciary”)

What exactly is a “State Energy Plan”?

We have all been invited by the New York State Energy Planning Board to review and comment on the “2014 Draft New York State Energy Plan.”

That’s great, I guess.  Our comments are due by May 30, 2014, and, if we want to submit our thoughts online, there is only one place to do that: http://energyplan.ny.gov/Process/Comments.aspx.

I had hoped to start the review process by now to ensure that Memorial Day festivities wouldn’t get in the way of meeting the May 30th deadline.  But I got sidetracked by the realization that I didn’t know what the purpose of a State Energy Plan is, or whether it actually had any real-world impact.

Perhaps more importantly, I had no familiarity with the NYS Energy Planning Board, who the members are, who appoints them, etc., etc.  I may be a bit naive, but I’m not willing to immediately trust these folks simply because their home page quotes Rachel Carson.

So, as a public service to anyone who might have similar questions or qualms, here’s what I’ve been able to cobble together:

 

Permanence has not been the State Energy Plan’s Hallmark 

The earliest “State Energy Plan” [“SEP”] I was able to identify was adopted in 2002 during the administration of Gov. George E. Pataki.  It was designed “to keep New York at the forefront among states in providing its citizens with abundant, competitively priced, clean, and efficient energy resources.”  Reflecting just how much the world has changed in a dozen years, the 2002 plan contained no reference of any kind to Marcellus Shale or high-volume hydraulic fracturing (“hydrofracking”).

An annual report and activities update was issued in 2005, but it was prepared on a voluntary basis by the former staff of the State Energy Board.  The state legislation establishing the State Energy Planning Board and the SEP process expired on January 1, 2003.

Gov. David A. Paterson, apparently unwilling to wait for legislative action, created a State Energy Planning Board by executive order in 2008.  The new board was instructed to publish a final Energy Plan by June 30, 2009, and to issue a new energy plan at least every three years thereafter.

The opening paragraphs of Gov. Paterson’s Executive Order No. 2 appear to reflect the issues most on the mind of New York’s chief executive, that is, threats to the environment and public health, and global climate change:

            “WHEREAS, decisions about how to meet the state’s future energy needs can have significant impacts on the environment, public health, public welfare, safety, mobility, quality and reliability of services, energy costs, and the ability to maintain and grow the State’s economy; and

            WHEREAS, the burning of fossil fuels is a major contributor to global climate change, which poses a serious threat to the environment and the public health in New York State and elsewhere; …”

Governor Paterson’s unilateral move to create a State Energy Planning Board awakened the lethargic legislators in Albany.  By September 2009, the expired statutory provisions establishing an energy planning board were reinstituted, calling for an SEP every four years.  Not surprisingly, the 2009 legislation expressly gives “the speaker of the assembly and the temporary president of the senate” (as well as the governor) the power to appoint a representative to serve on the board.  It also asks the board to include in the State Energy Plan information and analyses both on a “statewide” basis and, to the extent practicable, for the “downstate region” [New York City and eight nearby counties] and “upstate region” [the rest of the state].

In contrast to the primacy given to the environment, public health, and climate change in the Paterson executive order, the 2009 legislation lists the goal of “minimizing public health and environmental impacts, in particular, environmental impacts related to climate change” after the expression of the following objectives for the State’s energy plan: “improving the reliability of the state’s energy systems; insulating consumers from volatility in market prices; [and] reducing the overall cost of energy in the state.”

The basic features of the 2009 legislation remain in place today.  However, Gov. Andrew Cuomo presided over a number of changes to the SEP process less than seven months after his January 1, 2011 inauguration, enacting what has been characterized as “minor amendments to Article 6 [of the Energy Law] in order to change the composition of the board and streamline its operations.”  In “streamlining” the SEP process, the current statute reduces somewhat the role of regional planning council members, lessens the obligation to identify and assess certain “regional” needs, and limits “forecasts” of enumerated topics to “a minimum period of ten years” rather than the previous call for “forecasts for periods of five, ten and fifteen years.”

Energy Planning Board Members – The Governor’s in Control

One feature of the State Energy Plan process has been constant throughout the 2002, 2009 and 2014 plans:  The Governor has preeminent control over the makeup of the State Energy Planning Board.  That power has been either absolute (the executive fiat-approach taken Gov. Paterson in 2002), or de facto as a result of a governor’s ability to nominate the Commissioner or Chairperson who, by virtue of the position he or she holds, is automatically a member of the energy planning board.

Given the predominance of gubernatorial “appointees” on the State Energy Planning Board, it is highly unlikely that the ability of each legislative chamber to appoint a single member to the board has a meaningful impact.  Pursuant to the current statute, a simple majority vote is all that is needed for board actions or decisions.

The number of board members has increased with each reincarnation.  The 2002 version included the heads of five agencies:  the New York State Energy Research and Development Authority (NYSERDA); New York State Department of Transportation (DOT); New York State Public Service Commission (PSC); New York State Department of Economic Development [an agency that was eliminated with the 2009-2010 State budget with its responsibilities transferred to the Empire State Development Corporation (ESD)]; and, New York State Department of Environmental Conservation (DEC).

The Paterson-created State Energy Planning Board retained each of the five 2002 agencies (or its successor agency), and added the New York Department of State (DOS), New York State Department of Health (DOH), and the States’ Division of Budget.  Executive Order No. 2 also named as board Chair the Deputy Secretary of Energy in the Governor’s office, and placed the Assistant Secretary for Renewable Energy in the Governor’s office as head of the “Energy Coordinating Working Group.”

The current configuration of the State Energy Planning Board requires a considerably larger conference table than either of its predecessors, despite the fact that the panel no longer includes a representative from the State’s Division of Budget or the Governor’s office.  The 2011 legislation adds the Commissioner of Labor, Commissioner of Agriculture and Markets, and Commissioner of Homeland Security and Emergency Services, as well as the appointees of the State Senate, State Assembly and (of course) the Governor.  Pursuant to the statute, the President of NYSERDA now serves as the Chair of the State Energy Board.

While they each perform valuable services on behalf of the citizens of New York State, none of the newly added agencies has a “mission statement” that focuses on the public health, the environment, or concerns over climate change:

        Labor:  “The mission of the New York Department of Labor is to protect workers, assist the unemployed and connect job seekers to jobs.”

        Ag & Markets:  “Our mission is to foster a competitive food and agriculture industry that benefits producers and consumers alike.”

        Homeland Security:  “Created in 2010, DHSES and its four offices … provide leadership, coordination and support for efforts to prevent, protect against, prepare for, respond to, and recover from terrorism and other man-made and natural disasters, threats, fires and other emergencies.”

Who actually gathers the data and drafts the State Energy Plan?

Not surprisingly, members of the State Energy Planning Board are authorized by the current statute to designate “an executive staff representative” to attend board meetings and participate on the board on their behalf.  And the tedious-but-critical process of gathering and analyzing data and information and drafting the SEP falls to the staff of the various participating agencies:

Staff services shall be performed by personnel of the department of public service, the department of environmental conservation, the department of transportation, the department of economic development, the division of homeland security and emergency services and the New York state energy research and development authority, as directed by the board. Assistance shall also be made available, as requested by the board, from other agencies, departments and public authorities of the state.

The difficulties of obtaining input from the actual board members – given their many responsibilities and, perhaps, lukewarm interest in the State Energy Plan process – are reflected in a statement attributed to the board Chair, NYSERDA President Francis J. Murray, Jr., in the July 9, 2012 meeting minutes:

       ” …  Mr. Murray encouraged Board members, particularly designees, to ensure that their principals (agency commissioners, etc.) are given ample time to weigh in on the various technical reports and documents.”

Does the State Energy Plan have any clout?

What happens to the State Energy Plan once a simple majority of the State Energy Planning Board members approves the final version of a plan prepared by personnel of the various agencies?  Must its goals and objectives be strictly followed?  Does it tangibly influence the actions and decisions of public entities and private companies?  Will it merely sit on a virtual shelf collecting virtual dust?

Here’s what Gov. Paterson’s 2002 executive order envisioned:

      “Upon issuance of the Energy Plan, every agency, department, office, division and public authority of the State shall, unless otherwise restricted by applicable law, give due consideration to and be guided by the Energy Plan in their decision-making.”

As meek as Mr. Paterson’s words appear to this skeptical environmental/land use lawyer, they read like a mighty roar when compared with the “reasonably consistent” standard found in the current version of the State Energy Plan law:

        “Section 6-104(5) (a).  The state energy plan shall provide guidance for energy-related decisions to be made by the public and private sectors within the state. (b) Any energy-related action or decision of a state agency, board, commission or authority shall be reasonably consistent with the forecasts and the policies and long-range energy planning objectives and strategies contained in the plan, including its most recent update; provided, however, that any such action or decision which is not reasonably consistent with the plan shall be deemed in compliance with this section, provided that such action or decision includes a finding that the relevant provisions of the plan are no longer reasonable or probable based on a material and substantial change in fact or circumstance, and a statement explaining the basis for this finding.”         

As with the comprehensive plans prepared by local municipalities, our elected and appointed officials will most likely point to a paragraph here and there in the State Energy Plan when it supports whatever actions or decisions they’re about to make.  And the SEP will be conveniently forgotten when decisions being made fall short of the anemic “reasonably consistent” standard found in the enabling legislation.

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