NYRI update – Legal maneuvering

And here I thought I was paying attention… wow, how’d this one get by?

New York Attorney General Andrew Cuomo is seeking dismissal of a lawsuit filed against state Assemblywoman Donna A. Lupardo, D-Endwell, and others by an energy company that wants to develop a power line through upstate New York. New York Regional Interconnect filed suit earlier this year against Lupardo as the author of a new state law that prevents energy companies like NYRI from using eminent domain to seize private property. The lawsuit also names state Sen. John Bonacic, R-Mt. Hope, who sponsored the legislation in the state Senate.

I guess this was not unexpected, but it’s still weird to think that legally (under the 11th Amendment) a company has to sue individual legislators rather than the State itself. Here’s another story from the Norwich Evening Sun.

In other news, Clinton and Schumer introduced Senate legislation against FERC, in the name of states’ rights, over the summer. And also last month, railroad magnate Walter Rich died. This leaves people wondering what’s eventually going to become of the New York Susquehanna & Western railroad, and its murky relationship with NYRI (see this story for background). Some of the various anti-NYRI activist groups have been relatively dormant this summer – not a whole lot of press coverage, at any rate – but the Upper Delaware Preservation Coalition and Upstate NY Citizens Alliance (based in the Utica area) are currently active.

It’s been a while since I last wrote an update on the NYRI issue. The reason why I have been so interested in NYRI is not because I live in the affected area (I don’t) but because I am concerned about the whole “national interest electric transmission corridor” thing and what kind of precedent it sets for other resources we have here in New York State, especially our water resources, as I wrote last week.

3 thoughts on “NYRI update – Legal maneuvering

  1. Mike Bernhard

    Lets not get too excited about this: its in the script.
    First of all, the legislation is unconstitutional (analysis below).
    Second, the sponsors of legislation are never a legitimate target of a lawsuit; only the government that adopted the law is.
    Third, Cuomo is asking only for the dismissal of suits against the legislators, not the legislation.

    The script:
    1. Libous and all the central New York legislators carrying water for NYRI/NYSW* wrote a law that appeared to burden NYRI but was unconstitutional (analysis below). This disarmed the opposition, keeping people busy for months urging Pataki to sign it, then publically feting him for doing so, just before the election. The major opposition group sponsored events where the legislators were invited to trumpet their phony law. During their successful reelection campaigns, the legislators used their phony law to characterize themselves as anti-NYRI. Libous even used the major pre-election Stop-NYRI event, set up by a Republican operative (Perry Owen), to circulate campaign literature. People don’t like hearing this, but there it is.

    2. NYRI named Libous, Seward, et al. in their lawsuit to give their water-carriers POLITICAL COVER. Certainly NYRI’s lawyers knew that suits against individual sponsors would be dismissed, safely after the election. NYRI did this FOR Libous, et al.

    3. Cuomo and his man Eliot will look like heroes for a while, at no risk to Spitzer’s stated goal of fasttracking the construction of transmission lines over the objections of localyokels**.

    Based on this analysis, one could safely give odds that Libous et al. will be dropped from the suit, but McAvoy will rule for NYRI. Any takers?


    *NYSW: the New York and Susquehanna Railroad, a non-functioning right-of-way holder that would be selling (and has already sold options to) NYRI access to its ROW. Its late owner was a big contributor to central NY Republicans (and Schumer), hosting summertime fund-raisers at his Cooperstown estate each year. (I’ll send documents on request) Boehlert was best man at his wedding. None of the corporate press covered the fact that he died of AIDS, or who was at his funeral.

    **”We need more generating capacity. We need more transmission lines. We need to work together on facilitating rapid decision-making…There is this overwhelming desire not to have these facilities anywhere near us(sic). We need to overcome it.” – Attorney General and Democratic gubernatorial candidate Eliot Spitzer, addressing the New York State Business Council’s Annual Meeting


    by Mary Jo Long
    Eminent domain is “the power to take private property for public use by the state, local government and entities who exercise functions of public character.” Black’s Law Dictionary. The 5th Amendment to the U.S. Constitution requires that no such taking of private property be made “without just compensation”. In New York the law requires a government to hold a public hearing before it exercises the power of eminent domain in a location reasonably close to the land being taken. However that law exempts the required public hearing in some circumstances. If an Article VII permit has been granted by the Public Service Commission, no public hearing is required. (Eminent Domain Procedure Law §206)

    Another important piece of law is Corporation Law. A corporation is created under state law, usually the Business Corporation Law. Originally corporations were only allowed to exist for specific purposes and were limited, e.g. they could not own other corporations, and could only exist for a set number of years. This was done to keep corporations subservient to public need. But, over time, corporate law has changed and now corporations are created to make money for their investors while keeping those investors from being personally liable for any harm or damage the corporation does. Additionally in New York, there is a special law, called the Transportation Corporation Law. In 1947 this law gave to electric corporations “the power and authority to acquire such real estate as may be necessary for its corporate purposes and the right of way through any property in the manner prescribed by the eminent domain procedure law.” (TCL §11, 3-a & 3-b). To go to court to acquire the property, the corporation must produce a certificate of need from the Public Service Commission. That same law also statutorily made the transmission line a public use and a public purpose. This is the law by which the New York Regional Interconnect (NYRI) is incorporated.

    When our local politicians saw the people’s anger over NYRI’s ability to use this law, they passed an amendment to the Transportation Corporation Law. I’m going to call it The Amendment. The Amendment, without naming NYRI, disqualifies certain corporations from being able to use eminent domain. It says that eminent domain cannot be used if (1) the transmission line begins and ends in NYS, (2) the corporation testified that the project will raise rates for some in NYS and (3) the corporation has applied for and been denied early designation for an National Interest Energy Transmission Corridor.

    This Amendment is not going to effective. First, the “AND” in the amendment is significant. If NYRI doesn’t meet all three disqualifying factors, then it can use eminent domain. One of those disqualifiers requires “testifying that electric rates will be raised”. Although NYRI officials spoke at the hearing arranged by our elected officials, they did not “testify” because testimony is “evidence given by a witness, under oath or affirmation.” No oath was taken at the hearing.

    The Amendment also violates Article 1, §10 of the U.S. Constitution., which prohibits states from passing ex post facto laws. Ex post facto laws are laws passed after the occurrence of a fact or action which after the fact changes the legal consequences of such fact or action. Black’s Law Dictionary. NYRI spoke of rates being raised at the senators’ hearing before the amendment was passed; and NYRI applied for early designation as a National Interest Energy Transmission Corridor before the amendment was passed. The Amendment will be struck down as unconstitutional because when these actions were taken they did disqualify NYRI..
    Private corporations should not have the power of eminent domain under any circumstance. Our elected representatives could have repealed the entire section of the law that gave eminent domain to private corporations. That would not be an ex post facto law because it wouldn’t be disqualification for past actions; it would be a change of policy. But neither the Republican nor the Democratic parties want to change the policy that gives private for profit corporations the right to use eminent domain. Instead we have been given an artful dodge that won’t be over until after the election.

    As if this weren’t hard enough, we also have to deal with the Energy Policy Act of 2005, a national law which gave private corporations the right to go to federal or state court to use eminent domain. 16 U.S.C §824p That law gave the Federal Energy Regulatory Commission, FERC, an unelected body, the power to declare National Interest Electric Transmission Corridors. That same law gives FERC the power to designate the locations for nuclear waste dumps.

    So, what to do? We need political parties who are not protecting corporate investment opportunities. The Green Party believes that we should broaden the scope of democratic decision-making. We should be able to decide what is a public use or purpose. We should be able to prevent and limit electric powerlines, gas pipelines, nuclear waste dumps, garbage incinerators, siphoning of underground water aquafers and all the other corporate profit opportunities that are not in the public interest.

    Mary Jo Long, Chair of Chenango County Green Party


  2. honkcronk

    How come no one is mentioning the so called abandonment of the RR tracks from Utica to Chenango Forks?? No more trains?

    What will become of these tracks?

    And why is no one stepping up to do something with this?

    Don’t we need any more rails anymore?

    Or will we just convert all the old railroads to transmission corridors???

    Next, the line that extends from Chenango Forks to Binghamton will be earmarked for abandonment. Not many trains are running.

    I do not love the RR as it is right now — not much maintenance and just container trains passing through. But do we want the tracks to be abandoned?

    They can be developed by the so called partners for other use. And there might be no local benefit in the future plans.

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