By Rebecca Martin
UPDATE: Kingston did it! Both the City of Kingston Mayor and Kingston’s Common Council (unanimously) voted to send letters to both the NYS DEC and Thruway Authority. VIEW the letters.
Because Involved Agencies have been waiting for some resolution of the disagreement, expressed by 29 towns, cities and counties, with Thruway’s November 21, 2015 proposal that it serve as sole lead agency, some might have thought that the co-lead agreement between DEC and Thruway was final. But it isn’t. It is simply 2 involved agencies making a new proposal for who should serve as lead agency for the environmental review of Pilgrim Pipelines project. SEQR regulations require that all involved agencies be given the opportunity to respond to this new proposal, which they can choose to consent to or reject.
Furthermore, the reasons cited by 29 Involved Agencies that rejected the NY Thruway Authority’s proposal to be Lead Agency in the SEQR process in the first go-round : that Thruway stands to gain monetarily from Pilgrim Pipeline to use their right-of-way and that they are not equipped or experienced in managing an environmental review process for such an incredibly large and complicated project, remain true.
The bottom line is that the NY Thruway Authority’s bid to take on the lead agency role was overwhelmingly rejected to begin with and yet they are still in the running. Also perplexing is that on the NYS DEC’s own website, they dissuade co-lead roles in SEQR and instead advise that “a single lead agency be established with the other agency actively involved in the process but not as co-lead agency” and for good reason. What would occur if the two leads differed in opinion somewhere down the line? Which agency would trump the other for a decision to be made?
Below are bullet points to provide more detail as to why and what the City of Kingston as an Involved agency can do now to respond to this new step in determining Lead Agency in SEQR as it pertains to the Pilgrim Pipeline proposal. The same is true for all municipalities who are in the same position that we are in.
- DEC wrote a letter dated December 21st recommending to the Thruway Authority that they be co-leads and Thruway responded on the same day, agreeing to take on co-lead Agency with DEC.
- The NY Thruway Authority and NYS DEC are two of many Involved Agencies in the Pilgrim Pipeline project. That they both have now proposed to act as co-lead still needs to be approved by all Involved Agencies.
- According to applicable SEQR regulations, the lead agency coordination process requires notification (by those seeking lead agency) to all Involved agencies of the co-lead agency proposal and then a 30 calendar day period subsequent to that notification, during which Involved agencies can respond indicating their agreement or disagreement with this new proposal. 6 NYCRR Section 617.6(b)(3).
- Please use the following text (below) to place in COK letterhead and send to: Basil Seggos, NYS DEC’s Acting Commissioner and Robert L. Megna, NYS Thruway Authority’s Executive Director. This MUST BE ACCOMPLISHED BY JANUARY 21st.
- To not respond means that Kingston, as an Involved agency, agrees to the NYS DEC and NY Thruway Authority being Co-Lead in the Pilgrim Pipeline project SEQR process.
DRAFT LETTER
January xx, 2016
The Hon. Basil Seggos
Acting Commissioner, NYS Department of Environmental Conservation
625 Broadway
Albany, New York 12233-1010
Email: bseggos@gw.dec.state.ny.us
Robert L. Megna
Executive Director
NYS Thruway Authority Canal Corporation
200 Southern Boulevard
P.O. Box 189
Albany, New York 12201-0189
Email: public.info@thruway.ny.gov
By First Class and Email
Re: SEQR Agency Coordination for the Pilgrim Pipeline Project
Dear Acting Commissioner Seggos and Mr. Megna,
The City of Kingston, as an Involved Agency in the SEQR review of the Pilgrim Pipeline Project, hereby responds to your exchange of letters, both dated December 21, 2015, notifying other involved agencies of NYS DEC’s and Thruway Authority’s agreement to act as co-lead agencies in the SEQR review of the Project. It is the City of Kingston’s understanding that your agreement between yourselves, as two of more than thirty identified involved agencies, constitutes a new lead agency proposal that SEQR requires be subject to a new lead agency coordination process. Pursuant to applicable SEQR regulations, this process includes notification to all involved agencies of the co-lead agency proposal and a 30 calendar day period subsequent to that notification, during which involved agencies can respond indicating their agreement or disagreement with this new proposal. 6 NYCRR Section 617.6(b)(3).
We remain committed to our earlier decision dated December 2, 2015 (Kingston Common Council resolution) and November 20, 2015 (Kingston City Mayor’s office) and therefore, decline to consent to the Thruway Authority’s and DEC’s proposed agreement to serve as co-lead agencies for the following reasons:
1) The Thruway Authority‘s very narrow expertise in highway use policy and regulation does not provide an adequate basis to justify the Authority’s serving as a co-lead agency in an environmental review; and
2) The DEC itself discourages co-lead agency because of the potential for disagreement, and this case does not merit an exception. DEC has advised in the past that language in the regulations that provide for the DEC Commissioner to choose between agencies and the plain reading of the regulations themselves preclude the use of co-lead agencies. DEC’s SEQR guidance instead recommends that “a single lead agency be established with the other agency actively involved in the process but not as co-lead agency.”
3) The Thruway Authority continues to have an apparent conflict of interest in overseeing the environmental review of a project that if approved, would result in its receipt of revenues from the Pilgrim Pipeline project from fees charged by NYSTA for use of the right of way.
4) 27 of the 29 New York Municipalities, including the City of Kingston, have passed resolutions opposing Thruway’s involvement in overseeing the environmental review of a project that presents significant potential risks and costs to our communities that far outweigh any potential benefits, and that contradicts local and State energy goals.
Based on DEC’s own criteria which guide the Commissioner’s designation of lead agency in the event of a dispute, such as here, it is apparent that the NYS DEC is the only suitable agency to be Lead Agency in the Pilgrim Pipeline Project for the following reasons:
1. The proposed pipeline threatens important resources of statewide concern, including the Hudson River and major tributaries, such as the Rondout, Esopus, and Catskill Creeks and Wallkill River, State-regulated wetlands and other resources that the NYS DEC is responsible for protecting and is better equipped to ensure a full and adequate evaluation of environmental impacts.
2. NYS DEC has statewide responsibility for mitigating climate change and helping to ensure that New York will meet the targets set in the 2015 New York State Energy Plan to reduce greenhouse gas emissions by 40% by 2030 and 80% by 2050 below 1990 emissions levels. The Commissioner’s Policy mandates that DEC must consider climate change in all its actions, including permitting. This proposed project to construct the first crude oil pipeline in New York must be evaluated within the context of the Energy Plan and state energy objectives, and the DEC is best positioned to ensure the comprehensive evaluation that is needed.
3. NYS DEC, as the state environmental agency, is best suited to guide the environmental review of this large, multi-jurisdictional project that has the potential to impact environmental resources in six New York counties and 29 towns, and is the agency with the power and the expertise to ensure a comprehensive and coordinated review.
4. The pipeline will traverse and impact private lands and resources outside of the Thruway right-of-way, and it is therefore more appropriate for the NYS DEC than the Thruway Authority to play the lead role in evaluating the impacts to those lands and resources.
Finally, it is the City of Kingston’s understanding that the continuing disagreement among involved agencies regarding who should take on the responsibilities of lead agency can only be resolved by a designation of lead agency by the Commissioner of DEC pursuant to the SEQR regulations that govern that process. 6 NYCRR Section 617.6(b)(5).
Thank you very much for the opportunity to express our position with respect to the appropriate lead agency to guide this very important environmental review.