New York’s legislative leaders and the governor are busy in a frantic effort to get the final state budget finished on time, due this weekend.  The state Constitution establishes that the new fiscal year begins on April 1^st. Despite that requirement, it is often late – last year’s was approved at the end of April.

So last week and this week are busy ones, but legislative activity will not be all about the budget.  During the budget season, non-budget bills are considered, and appointments are made.  Appointees often are charged with setting policy and running the day-to-day operations of government and can have big impacts on the lives of New Yorkers.

For example, earlier this year the governor appointed a new Superintendent to run the State Police.  In the middle of this month, the governor appointed a new head to the Division of Human Rights.  Generally, gubernatorial appointees face review and final approval from the New York State Senate.  This week the Senate will take up a number of such appointments, including to the Public Service Commission – the entity that sets the utility rates that we all pay. 

While the bulk of state governmental appointments are approved by a state Senate vote, this isn’t the case for all top-level appointments.  The Assembly gets involved too, when the Legislature jointly approves membership to New York’s Board of Regents, which oversees education in the state.  Earlier this month, they jointly approved three new members to the Regents. 

All of this to say that the budget is not the only topic in Albany and that the governor’s power over the executive branch is somewhat limited in that her major appointments are subject to scrutiny and legislative confirmation.

Yet, what happens when outside interests seek to influence that process?  As New Yorkers saw in the messy nomination – and ultimate rejection – of Governor Hochul’s first choice for chief judge of the state’s highest court, big bucks can get spent. 

Despite the costly public fight over the LaSalle nomination, thanks to Governor Hochul, current lobbying to influence her appointments – if in fact there is any – is still hidden from public view.  Last year, legislation was approved to require disclosure of lobby spending to influence voting on government appointments.  Unlike many bills that pass along party lines, the bill was passed with overwhelming bipartisan majorities in both houses, with all members of the Assembly voting in support of the bill.

Despite this bipartisan and widespread support – and no public opposition – Governor Hochul vetoed the legislation, arguing that “This bill would impose significant new reporting requirements on people who might not already be reporters, retroactive to January 1, 2023.  Additionally, this would impose implementation costs not already accounted for in the State financial plan.” 

Ironically, the justification for the veto was framed as a way to protect those who were spending the money to influence gubernatorial appointments at the same time the governor stated her commitment to transparency. 

Of course, the point of the legislation was to find out those who had spent big bucks fighting over the Chief Judge nomination, as well as any others that had fallen below the radar screen in 2023.  Both houses of the Legislature, despite the overwhelming majorities, have chosen not to override the governor’s veto, instead advancing legislation this year that goes into effect (if approved) prospectively.  The Senate has advanced the legislation to its floor; so far, no action in the Assembly.

Leaving the loophole in place deprives the public of information on who is seeking to influence gubernatorial appointments.  In the state’s cockamamie lobbying disclosure requirements, lobbying to influence utility rates is considered lobbying, but influencing who sits on the board that determines those rates is not.

And attempting to influence some nominations is considered lobbying.  As mentioned earlier, the Legislature jointly approved nominations to the state’s Board of Regents.  Since those nominations are approved through a joint legislative resolution, lobbying to influence them triggers a disclosure obligation.  However, nominations to the Senate do not require a legislative resolution, thus spending to influence those choices does not!

Governor Hochul’s thoughts on the issue are certainly not clear, despite her veto message.  In her proposed budget, she made no proposal to close the loophole.  Obviously, her inaction keeps the public uninformed about current gubernatorial nominations, and so any advocacy to impact the most recent nominations are outside the scope of lobbying disclosures.

The Legislature has time to close the lobbying loophole.  Assuming they again do so and stick to their guns that it must be approved, the loophole will be closed.  But even under the best of circumstances, that action will not shed light on this year’s gubernatorial appointments.  New Yorkers deserve to know who is trying to influence the selection of top appointees whose decisions affect their lives.  Albany is to blame for the information blackout in this area.  Here’s hoping the blame game ends this session.

Last week was the annual recognition of the need for government openness.  First celebrated nationally in 2005, “Sunshine Week” was launched as a collaboration of national news organizations to promote transparency in government.  The idea is that governments are more effective when they allow public oversight and access to documents and proceedings as well as openness helps curb waste and increases government efficiency and effectiveness.  

The rationale for celebrating the need for government openness this past week – as compared to any other – is that March 16^th is the anniversary of the birth of James Madison, the nation’s fourth President, and one of the principal figures in the Constitutional Convention.  

It was Madison who observed that “A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both.  Knowledge will forever govern ignorance:  And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives.”

Too often, Madison’s comments have proven true.  Here in New York, governmental secrecy has resulted in some of the state’s biggest scandals.  For example, recent decisions to limit the state Comptroller’s oversight of state governmental procurement decisions contributed to shocking scandals. 

It is unlikely that those corrupt schemes could have succeeded if the state Comptroller’s office had monitored those decisions.  People behave differently if they think they can be caught.  Corruption risks bloom in secrecy.

At its core, in a representative democracy we grant our elected officials the power to make decisions on our behalf based on our informed consent.  How can we grant such power without access to basic information – information collected and paid for by us?

Yet, the tools for New Yorkers to both know about how policies are crafted as well as information to hold power accountable, are weak.

According to a recent report and the experiences of reporters and advocates, New York State and local agencies routinely take months or years to provide public records requested via the state’s Freedom of Information Law (FOIL).  Not only are agencies incredibly slow to provide records – they often provide a fraction of the records requested and contrive endless excuses, basically daring the public to go to court.

Here are a few examples:

• Most state agencies take more than the 20 days required by the FOIL to provide requested records.
• 39% of counties failed to acknowledge FOIL requests within the required five business days.
• 73% of election boards failed to acknowledge requests within five business days.

To highlight these weaknesses and to call for reforms, a coalition of more than 20 New York transparency advocates sent a Sunshine Week letter to Governor Hochul and the Legislative leaders urging them to strengthen New York’s FOIL, specifically referencing four bills:  

1. The first bill was the FOIL Timeline Act, which would set deadlines for action on FOIL requests.  This legislation responds to the near-endless delays that New Yorkers too often face when requesting government records.

2. The second is the FOIL Reporting Act, which requires agencies to annually report FOIL data such as when each request was received, how it was resolved, and more to the Committee on Open Government.  Publishing this data will show legislators and the public which agencies are complying with FOIL and which are shirking it.

3. The third is a bill that limits the Commercial FOIL Exemption Act.  Currently, businesses can claim that information that they provide the government should be kept secret due to copyright concerns.  This bill will require businesses to reapply for the exemption every three years, preventing those covered from permanently exempting government records from disclosure.

4. Lastly, the groups urged a strengthening of current law that allows recovery of attorneys’ fees in FOIL cases when an agency is found to have engaged in indefensible foot-dragging.  Currently, when a court decides that a state or local agency had no reasonable basis for denying records, the agency is now required to reimburse the requestor’s lawyer fees.  Yet, the prohibitive costs of state (Article 78) litigation means only a tiny handful of lawful FOILs are pursued in court due to the uncertainty of recovering lawyer costs when successful.

New Yorkers should be able to use FOIL to access records to which they are entitled—without delay, runarounds, or perverse agency incentives. Let’s heed Madison’s prescient warning that the lack of public oversight of government is “a Prologue to a Farce or a Tragedy; or, perhaps, both.”  Let’s let the sunshine in.

This week Albany heads into a new phase in the development of the state budget as both houses of the New York State Legislature unveil their budget priorities.  Governor Hochul advanced her plan back in January.  With the expected approval of the Senate and Assembly plans this week, the battle to reconcile the three competing plans will start in earnest.

The final budget is supposed to be completed by the end of this month, although in recent years the fight over the final version extended well into April — beyond the start of the new fiscal year.

The final budget will authorize the state to raise and spend somewhere around $235 billion over the next twelve months.  In addition to the fiscal side, the final budget will address pressing state programmatic and policy priorities.  Yet, in one key area — the rising costs of spending on damages caused by a rapidly worsening climate — Governor Hochul’s budget plan comes up short: It includes some spending on climate projects, but does so in a way that would pass those costs solely onto the backs of taxpayers.

What will the Legislature do in response?

Last year, the state Senate advanced a budget that shifted a large portion of climate damage response costs off taxpayers and onto the largest oil companies.  The plan also was designed to protect the public from having those fees shifted back onto taxpayers in the form of higher consumer costs.  Unfortunately, last year’s Assembly plan sided with the governor in requiring that all climate costs be paid by taxpayers, not Big Oil.

Will it happen again?

This year is different — the coalition calling for Big Oil to pay is large and diverse and at least half the Assemblymembers support the proposal that matches the Senate’s plan.

A coalition of over 400 environmental, civic, religious, and youth groups and 100 local elected officials have been demanding that the world’s largest oil companies pay for New York’s staggering infrastructure climate change costs as part of a final budget agreement.

The Climate Change Superfund Act requires the companies most responsible for greenhouse gas emissions to pay $3 billion annually for each of the next twenty-five years to help cover the environmental damage they have done.  The legislation is designed to prevent these costs from being shifted onto the public, as confirmed by an independent think tank’s analysis.

Climate change resiliency measures are uniquely necessary — and expensive — in New York.  A recent review of Governor Hochul’s climate-related public announcements documented that she had pledged over $2 billion in 2023 to cover damages and projects to boost the resiliency of New York’s infrastructure damaged by climate change-driven extreme weather — funds that would instead be paid by Big Oil if the Climate Superfund was approved.

It’s expected that the state’s climate costs will be enormous.  A study by New York State Comptroller DiNapoli revealed that over a ten-year span, more than half of New York localities’ municipal spending outside of New York City was or will be linked to climate change.  New York City may need to spend around $100 billion to upgrade its sewer systems to withstand intensified storms.  And those costs are on top of the $52 billion that the U.S. Army Corps of Engineers has estimated it will cost to protect New York Harbor from rising sea levels and storms.  Estimates suggest that Long Island alone could incur up to $100 billion in climate-related costs.

These financial burdens are projected to escalate, potentially reaching $10 billion annually for New Yorkers by the middle of the century.

Who’s on the financial hook?  Right now you are — unless legislation is passed to allocate at least some of those costs to those who are most responsible and who have the greatest ability to pay — the largest oil companies.

Remember, scientists working for oil companies like Exxon decades ago made “remarkably accurate projections of just how much burning fossil fuels would warm the planet.”  Yet for years, the industry “publicly cast doubt on climate science, and cautioned against any drastic move away from burning fossil fuels, the main driver of climate change.”

This week, we’ll know which side the Legislature is on.  Will they protect taxpayers and put Big Oil on the hook?  Or will they adopt the governor’s position and agree to pass all of those climate costs onto the public?  The answer will have a big impact on your wallet.

When New Yorkers think of pressing environmental issues, many think of the worsening climate crisis.  And with good reason:  Last year was the hottest in recorded human history and it is deteriorating rapidly.

Yet, there is another environmental crisis that demands attention – the mounting problem of what to do with trash.  According to the New York State Department of Environmental Conservation (DEC), Americans now generate twice as much waste as they did 50 years ago.  What to do with the trash that we all produce?  Right now, the number one place that residential trash goes to is a landfill, number two is that it is exported for disposal, number three burned, and last recycled.  There is no evidence that the problem is getting better.  In fact, the state’s residential recycling rate has been dropping over the past decade.  By the way, these disposal methods contribute to the climate crisis: Solid waste accounts for 12% of statewide greenhouse gas emissions, most of which comes from decomposing waste in landfills. 

The state’s capacity to take this problem on is dwindling.  Again according to the DEC, “New York’s 25 municipal solid waste landfills have a combined landfill capacity of between 16 and 25 years.”

If the state’s landfills are filled to capacity in a decade or so, what will happen?  Trucking the waste somewhere else is likely to be the option, but that is expensive and who knows for how long someone else will be willing to take New York’s trash.  Actions taken now could extend the lifespan of these landfills, but waiting will make the options even more difficult.

Policymakers have long known what to do about it, but as yet have done far too little to take on the mounting crisis.

During the last week of December, the state’s DEC released its review of how New York handles its wastes and offered a 10 year plan for how to deal with it. 

The “New York State Solid Waste Management Plan” contained six major “Focus Areas” with goals and action items.  Overall, the Plan called for a shift toward a “circular economy.”  A “circular economy” is one in which the manufacturer of a product, like packaging, ensures that it can be reused, repurposed or serve a beneficial purpose upon disposal, e.g., composting.  The Plan’s six major focus areas include:

1. Waste Reduction and Reuse;
2. Recycling;
3. Making Waste Producers Responsible for the wastes they generate;
4. Organics Reduction and Recycling;
5. Toxics Reduction in Products; and,
6. Advanced Design Solid Waste Management Facilities.

But a plan is just a plan, no matter how good.  Action items are needed. 

To that end, last week hundreds of New Yorkers descended on the state Capitol to urge legislative action to curtail a major contributor to the residential trash problem – packaging.  These activists called for action on two major proposals:

First, the Packaging Reduction and Recycling Infrastructure Act will reduce plastic packaging by 50% over 12 years to dramatically reduce waste, as well as phase out some of the most toxic chemicals used in packaging, improve recyclability of packaging, and slash greenhouse gas emissions associated with plastic.  It will also make polluters pay by establishing a modest fee on packaging paid by packaging producers, generating new revenue help defray waste costs for local taxpayers.

Second, an expansion of the Bottle Deposit Law.  That’s the law that requires a nickel deposit on certain carbonated beverages and bottled water.  When you return the container, you get your nickel back.  The Bottle Law has been the most successful litter reduction and recycling program in New York history.  The DEC describes it as a “tremendous success.”  When the law kicked in 40 years ago in 1983, carbonated beverage containers were found everywhere; now the overwhelming majority of these containers are redeemed under the program.  But many beverages – most notably non-carbonated sports drinks – didn’t exist four decades ago and are not covered by the law today.  And the nickel deposit was put in place 40 years ago – that 1983 nickel when adjusted for inflation is worth 15 cents today.

The advocates calling for these measures are trying to turn plans into actions — actions that have to be taken sooner if they are to have the effect of reducing the state’s trash problem.  You only have to look at our worsening climate to see what happens when policymakers don’t act.  This year, lawmakers should act and turn those cans into cash to make headway on the threat of the state’s trash tsunami.