OK, I’ll admit that “Cheery” was initially a typo on my part – but it accurately describes the good spirits I felt this past Sunday while walking amongst and photographing the cherry and other blossoms behind the Buffalo & Erie County Historic Society building at Elmwood Avenue and Nottingham Terrace.
Here’s hoping that the images that follow have a similar effect on you.
Thanks.
With All Due Respect (and Cheer),
Art Giacalone
New York State’s Department of Environmental Conservation (DEC) is jointly co-hosting a series of “environmental justice listening sessions” with the federal Environmental Protection Agency (EPA). The first session takes place on April 15 from 5 to 7:30 p.m. at the Niagara Arts and Cultural Center on Pine Avenue in Niagara Falls. Attendees will be invited to share their environmental concerns and priorities with agency officials to enable DEC to meet its purported goal of establishing stronger relationships with community leaders and people potentially affected by environmental pollution.
DEC defines “environmental justice” (“EJ”) in a 2003 policy statement, entitled CP-29 Environmental Justice and Permitting, as follows:
“Environmental justice means the fair treatment and meaningful involvement of all people regardless of race, color, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies. Fair treatment means that no group of people, including a racial, ethnic, or socioeconomic group, should bear a disproportionate share of the negative environmental consequences resulting from industrial, municipal, and commercial operations or the execution of federal, state, local, and tribal programs and policies.”
See CP-29 EJ directive (3/19/2003). As expressed in DEC’s EJ definition, “fair treatment” requires that no group of people bears “a disproportionate share of negative environmental consequences.”
DEC’s CP-29 recognizes that SEQRA – the State Environmental Quality Review Act – and, notably, the preparation of Environmental Impact Statements (“EIS”), play a critical role both in creating an “effective” environmental justice program, and in analyzing disproportionate adverse environmental impacts. Not only is adherence to the requirements of “SEQR” – the DEC regulations implementing SEQRA’s legislative mandates, found at 6 NYCRR Part 617 – “strongly encouraged”, the EJ policy directive calls for:
(1) adoption of regulations to establish additional criteria for determining significance pursuant to 6 NYCRR 617.7 (that is, determining whether a “Positive Declaration” must be issued and EIS prepared), and
(2) DEC’s review of the list of “Type 1 actions” at 6 NYCRR 617.4 – that is, proposed projects or policies that carry the presumption that it is likely to have a significant adverse impact on the environment and may require an EIS – to evaluate the need for amendments to include actions that may bear disproportionately on potential environmental justice areas, and to draft regulations based upon the evaluation.
Despite the passage of 21 years since the issuance of CP-29, DEC has neither added criteria for “determining significance” relating to environmental justice concerns, nor added to its list of “Type 1” actions projects or policies that may bear disproportionately on potential EJ areas. Equally disturbing, DEC has accompanied its failure to affirmatively act to strengthen SEQR’s role in creating an effective EJ program with the adoption of a new category of “Type 2” actions at 6 NYCRR 617.5 that may disproportionately burden environmental justice areas. A “Type 2” action is a class of proposed projects that the DEC determines will never have a significant impact on the environment and, as a result, requires no environmental review under SEQR. The problematic addition to the “Type 2” list is found at 6 NYCRR 617.5(c)(14), and excludes SEQR review for the “installation of solar energy arrays” of 25 acres or less at the site of closed landfills, brownfield sites that have received a Brownfield Cleanup Program certificate of completion (“COC”), inactive hazardous waste disposal sites that have received full liability release or a COC, and currently disturbed areas at public-owned wastewater treatment facilities.
Closed landfills, brownfield sites, inactive hazardous disposal sites, and existing public-owned wastewater treatment facilities are precisely the kinds of sites – in light of their historic uses – that require greater, not lesser, scrutiny as likely to place a disproportionate burden on potential environmental justice areas.
SEQRA – despite its many flaws – is the most effective tool available to the public and government decisionmakers to ensure informed assessment of a proposed project’s potential adverse environmental impacts and, as a result, informed and objective decision-making. SEQRA’s primary weapon – characterized by New York’s courts as “the heart of the SEQRA process” – is the environmental impact statement. Despite the critical role of the EIS, DEC has stood by for decades and done nothing to prevent the near extinction of the usage of environmental impact statements.
Consider the following facts. According to DEC’s own data, in 1989, 385 EIS’s were prepared statewide. By 1995, that number had fallen to 171. In 2023, the statewide figure was a dismal 41 EIS’s. To place that last number in context, in 2023, the various state and local agencies issued 948 Negative Declarations, determining that the proposed action was unlikely to have a significant adverse environmental impact. In other words, only 4.32% of the proposed projects and policies under review resulted in preparation of an EIS despite the fact that there is a relatively low threshold for requiring an EIS: an EIS must be prepared if a proposed action MAY have a significant effect on any one aspect of the environment.
[Note: SEQRA defines “environment” broadly to not only include physical conditions such as land, air, water, minerals, flora, fauna, noise and agricultural resources, it also includes socio-economic factors such as resources of archeological, historic or aesthetic significance, existing patterns of population concentration, distribution or growth, existing community or neighborhood character, and human health. See 6 NYCRR 617.2(l).]
Western New York’s compliance with SEQRA is worse than the statewide record. In DEC’s Region 9 – consisting of Niagara, Erie, Wyoming, Chautauqua, Cattaraugus and Allegany counties – only two Positive Declarations requiring preparation of an EIS were issued in 2016, one in Niagara County (by the Town of Lockport IDA) and one in Erie County (by the City of Buffalo Planning Board). Similarly, while 66 Negative Declarations were issued during 2023 by Region 9 lead agencies, only two Positive Declarations – 3.03% of the proposed actions under review – were issued, both in Cattaraugus County by the Town of Persia, and both (coincidentally) regarding proposed solar farms.
Until the DEC and state and local agencies – including the City of Niagara Falls – take their responsibility to fully comply with the letter and spirit of SEQRA seriously, there will be no such thing as an “effective” environmental justice program and no ability to adequately assess and compare a proposed project’s disproportionate adverse environmental impacts.
With All Due Respect,
Arthur J. Giacalone, Attorney-at-Law
[UPDATED 03-05-2024: I added several photos to the beginning of the post that weren’t initially available.]
I headed this afternoon to the Botanical Gardens on South Park Avenue in South Buffalo (officially, the Buffalo & Erie County Botanical Gardens). It was the last day of “Orchid Fest.” I should have grabbed my real camera as I rushed out my door, but the same lazy streak that has resulted in dependence on my iPhone to capture images for the past several years struck again.
Nonetheless, here are some of the flowers that caught my eye. Enjoy.
At this point, I truly am disappointed in myself for relying on my “smart” phone. Many of the pictures that I attempted to take somehow ended up thumb-size photos or are in an unopenable format. To remind myself to make the extra effort the next time I plan to capture images to share, here are a couple “minis”:
Humbly yours,
Art Giacalone
P.S. I’m adding one more picture of orchids, a plant given to me by a friend on my birthday in early December. I greatly appreciated the gesture.
Nearly six feet of snow fell at my South Buffalo home between January 13 and 19. It was a week of shoveling and little else as my world was reduced to my driveway, my house, and a view of my across-the-street West Seneca neighbors. I did feel extremely fortunate to have a warm and cozy place to call home. But I dearly missed my daily walks in Cazenovia Park and the freedom of driving to Wegmans, Office Depot, or wherever whenever I wanted.
[View from my front porch door 01/19/2024.]
[My back yard bird bath 01/15/2024.]
[Feathered friends at my window feeder 01/16/24.]
Mountains of snow and buried cars were eventually removed from nearby streets by the end of the day Saturday, January 20. The next morning the wind chill was a bone-chilling one degree Fahrenheit when crawled out of bed at 8 AM. I impatiently waited a few hours and, seeing that it had warmed to 10 degrees and a “feels like” temperature of zero, I bundled up and headed out my door to walk five blocks to Cazenovia Park.
I wasn’t disappointed. The contrast between the stunning azure skies and the pure white fields and hills (with crisscrossing boot prints and signs of sled tracks), snow-covered picnic tables and bleachers, and suddenly iced-over Caz Creek, was a joy to see and experience after a week of shoveling and “cabin fever.”
I’m not certain if the team of Olmsted landscape architects had South Buffalo winters in mind when they designed Cazenovia Park, but I’m pleased that this four-season gem adorns and defines my neighborhood.
With All Due Respect,
Art Giacalone
I have taken walks through South Buffalo’s Cazenovia Park virtually every day the past eight years. That welcomed ritual includes an admiring glance at Cazenovia Creek from the vehicular bridge on Warren Spahn Way. Not surprisingly (now that my eyes are wide open), the view changes dramatically depending upon the time of day, weather, presence of clouds, autumn hues, etc.
I’d like to share with you my favorite baker’s-dozen images from the past 80 days or so, working backwards from November 30.
[11/30/2023, 7:47 am]
[11/26/2023, 11:04 am]
[11/25/2023, 5:34 pm]
[10/24/2023, 8:35 am]
[10/22/2023, 5:03 pm]
[10/4/2023, 5:19 pm]
[9/11/2023, 7:47 am]
I hope you enjoyed the view from the Caz Park bridge.
With All Due Respect,
Art Giacalone
[On May 7, 2024, Right2TheCity selected this piece as one of its “EXTERNAL MEDIA” posts. I am extremely grateful to its staff for the honor. If you are not already familiar with this informative publication – with the motto “A battle cry to remake the city in our own image” – I recommend that you check out its policy declaration.]
Whiffs of arrogance and hypocrisy permeate the code of conduct recently adopted by the U.S. Supreme Court. [See USSC Code-of-Conduct-for-Justices_November_13_2023]
The stock photo of the court’s justices accompanying the reports of the new code – showing the nine members wearing black robes and big smiles – reminds me of a phrase used by the Buffalo News editorial board in 2022 when describing New York’s system for selecting judges: “[I]t stinks and the smell clings to the robes of the winners.”
As noted by national pundits, the code of conduct’s biggest deficiency is the absence of a mechanism to enforce its rules. As a result, the public has little reason to believe that the ethical standards will be followed. [See, for example, Ruth Marcus column 11-14-2023.]
But there’s a more subtle and insidious flaw that further erodes trust in our nation’s highest court, the code’s approach to “disqualification” or “recusal.”
Historically, judicial codes of conduct require that judges disqualify themselves from hearing a case if their impartiality might be reasonably questioned. The new set of rules does include that standard: “A Justice should disqualify himself or herself in a proceeding in which the Justice’s impartiality might reasonably be questioned.” But it then deceptively proceeds to make a virtue out of not recusing oneself.
The first step in this stratagem is to include a presumption of impartiality and a so-called “duty to sit,” neither of which is found in the ethic rules applicable to other federal court judges: “A Justice is presumed impartial and has an obligation to sit unless disqualified.”
The scheme is then progressed by a broad expansion of “the rule of necessity.” This principle is meant to be utilized in rare circumstances where a judge, who otherwise should be disqualified from hearing a case, is compelled to hear it out of “necessity” because no other judge is available to preside over the matter.
By sleight-of-hand, the Supreme Court renders the term “necessity” all but meaningless, but not directly in the ethics rules themselves. They innocuously state: “The rule of necessity may override the rule of disqualification.” The questionable task of expanding the concept of “necessity” is left to the “Commentary” that follows the code of conduct.
Those comments include the following expression of arrogance, “The loss of even one Justice may undermine the fruitful interchange of minds which is indispensable to the Court’s decision-making process.” The Commentary then provides examples of the supposed “distorting effect” of recusal, and reminds the justices that “the loss of one justice” is effectively the same as voting against a petitioner seeking to have a case heard at the nation’s highest court, or an appellant seeking to overturn a lower court’s decision.
By expanding the rule of necessity, the code of conduct frees justices with an agenda to push to disregard concerns over an apparent conflict of interests whenever they are displeased, after counting votes, with the practical impact of recusal.
Time to dry-clean those robes.
With All Due Respect,
Art Giacalone
Emotions ranged from anger to sorrow to sympathy at the peaceful “Cease Fire Now” Rally at Buffalo’s Niagara Square on Saturday afternoon, November 18, 2023.
[See U.S. Joe Biden’s Washington Post Opinion 11-18-2023.]
With All Due Respect,
Art Giacalone
Letchworth State Park straddles the Genesee River about 50 or so miles southeast of Buffalo. The deep gorge and stunning waterfalls carved by the Genesee, as it wended its way northward to Lake Ontario, earned the park the nickname “Grand Canyon of the East.” It recently has been given another title, “America’s #1 State Park.”
I haven’t seen enough of the state parks gracing the rest of our nation to confirm such an honor. But I can unequivocally proclaim that Letchworth – the ancestral home of the Seneca – is my favorite New York park (and has held that place in my heart and mind since my early childhood days).
Anxious to see how well Letchworth has weathered the challenges of climate change, I ventured south today down Route 400 and then east on Route 20A through Warsaw and eventually to the Village of Perry to one of several entrances to the state park. To my untrained eye, the Grand Canyon of the East appears healthy, maintaining its vitality and natural beauty, while gently and tastefully displaying the many hues of autumn.
Here is a selection of the priceless views I was fortunate enough to experience this afternoon. [By the way, admission to the park was free, and if you’re a NYS resident 62 or older, the parking fee is waived.] The photos start at the Gardeau Overlook and follow the river gorge in a southerly direction. Enjoy.
With All Due Respect (and Awe),
Art Giacalone
I’ve spent way too much time the past decade (or, two or three) lamenting the fact that I chose to become an attorney a half-century ago. The frustrations and disappointments associated with being a “public interest” lawyer – while offering me the “silver lining” of assisting and befriending many courageous and resilient clients – have weighed heavily on my once optimistic nature and view of the world. Nonetheless, I’m trying my best to look beyond such negative moments.
That being said, I decided yesterday – while exploring Buffalo’s Parkside neighbor on a perfect late-September day – that it must have been an incredible opportunity a century or so ago to labor as Darwin Martin’s head gardener. Imagine the sense of satisfaction and pride of being responsible for the development and maintenance of the remarkable grounds of Frank Lloyd Wright’s Prairie-style masterpiece at the corner of Jewett Parkway and Summit Avenue.
And then, after a hard day’s work, walking a few steps to your home, the Gardener’s Cottage (fronting on Woodward Avenue). Here’s a glimpse:
Being Darwin Martin’s head gardener – nice work if you can get it.
With All Due Respect,
Art Giacalone
P.S. This posting assumes – perhaps unrealistically – that Mr. & Mrs. Darwin Martin were pleasant and decent human beings and bosses (and, that Mr. Wright wasn’t overly oppressive in his oversight).
P.P.S. Now that I think about it, despite the challenges of my 47-year legal career, I have had the luxury of being my own boss for much of the past 34 years, choosing the issues to fight, and applying my own standard of ethics. Nice work if you can get it!
[On September 23, 2023, the Buffalo News published two versions of the following post. The on-line version includes several sentences – totaling 122 words – not contained in the print version. The two versions use different titles (both rejecting my chosen heading, “Erie County’s Flawed Code of Ethics – The Gift that Keeps on Giving.”) Attached here is a pdf with both versions: AnotherVoice re Poloncarz-Ethics Code – 2-versions 09-23-23.]
The public will not have the benefit of a ruling from the Erie County Board of Ethics on whether County Executive Mark Poloncarz acted improperly when a committee he chaired awarded a $60,000 grant to a cultural organization run by a woman he allegedly dated.
As reported by the Buffalo News on September 12, three ethics Board members – all of whom had been nominated to the board by Mr. Poloncarz – concluded that they lacked the authority to review the matter. In their view, the Erie County’s code of ethics is limited in its scope to addressing potential conflicts involving spouses and other relatives, and makes no mention of alternate types of romantic relationships. For that reason, “they wanted to err on the side of caution, calling it hard to know where to draw the line without more specificity in the code.” [See Erie County Code of Ethics – Local Law 3-30-2018 .]
In fact, the board’s ability to investigate ethics complaints is broader than the strict language of the ethics code and encompasses the spirit of what constitutes a conflict of interest. I reach this conclusion reluctantly, as a lifelong Democrat, and no fan of Chrissy Casilio, the Republican seeking to unseat Mr. Poloncarz in the November election.
The ethics board’s rules and regulations contain the following acknowledgment of the limitations of any ethics code:
“No code of conduct, however comprehensive, can anticipate all situations in which violations may occur nor can it prescribe behaviors that are appropriate to every situation; in addition, laws and regulations regarding ethical responsibilities cannot legislate morality, eradicate corruption, or eliminate bad judgment.”
[See Erie County Ethics Board’s Rules and Regulations]
In light of this flaw, and in direct contradiction to the Poloncarz nominee’s desire “to err on the side of caution,” the board’s rules expressly state that, “These rules shall be liberally construed to accomplish the purposes of the Ethics Code.” Those purposes include discouraging county officials from acting upon personal interests in the performance of their public responsibilities, and promoting and strengthening the faith and confidence of the people of Erie County in public officials.
The ethics board’s wish for more specificity in the code is ironic. When the current code was signed into law on March 28, 2018, County Executive Poloncarz’s press release proclaimed that the code “modernizes and clears up our county Code of Ethics, clarifying what is acceptable behavior and what is not while eliminating the ambiguous provisions,” and “contains clear definitions of prohibited and non-prohibited activities.”
The new ethics code added to the list of non-prohibited conduct the receipt or acceptance of gifts from a “family member” or “person with a personal relationship with the public official.” Mr. Poloncarz assured the Buffalo News, in a February 17, 2018 article, the phrase “personal relationship” was meant to include someone with an intimate relationship with a county official.
It seems the County Executive was thinking ahead. The ethics code he championed does treat as equals spouses and someone in an intimate relationship with a county official. It’s the gift that keeps on giving.
With All Due Respect,
Art Giacalone
With All Due Respect 