Article XIV places a duty of restraint on using herbicide in Lake George
By Dave Gibson
In a recent Times Union opinion, former Governor George Pataki appealed to current Governor Kathy Hochul to block the state’s immediate plan to apply the herbicide ProcellaCOR to kill Eurasian watermilfoil in Lake George.
The stakes of using herbicide in Lake George is too high, Pataki wrote. The former governor used words to characterize Lake George as the public’s “priceless gem,” “ecological gem” and “priceless inheritance,” all at risk if the herbicide, on a non-emergency basis, is allowed to be used as an experiment.
Our former governor makes important points. Pataki rightfully views Lake George as a preeminent symbol of the values undergirding New York’s 150-year-old fight to slow if not halt the exploitation of New York’s woods, waters, and wildlife. Pataki was and remains a Republican who believes in safeguarding our environment – and who acted on that belief while in office. The 1996 environmental bond act and approximately one million acres protected statewide during his dozen years as governor speak to that.
Why introduce a risky new chemical treatment in Lake George to accomplish the same job that decades of hand and suction pulling of milfoil can continue to accomplish, the former governor asks?
The Lake George Waterkeeper and Association also argue the precautionary principle: be humble, and cautious, and recognize all that we do not know about the Lake George ecosystem to act in haste. Hold hearings, gather more evidence, and discuss the quality of that evidence before injecting a new chemical treatment into the lake.
One very strong additional case the former governor, or the Lake George Association ought to make is that Article XIV, Section 1 of the NYS Constitution, our state’s unique “forever wild” clause, when viewed broadly, imposes restraints on governments placing herbicides into the lake purely on an expedient, experimental basis. There would not be a Lake George Park or Lake George Park Commission without the public’s Forest Preserve acquired with public funds beginning one hundred years ago and continuing to this day. Over 35 miles of Lake George shoreline is bordered directly by Forest Preserve (Tongue Mountain, Black Mountain, etc.), while private land conservation easements complementing the Forest Preserve protect far more of that shoreline. The requirement that the “lands of the state…shall be forever kept as wild forest land” implies an affirmative duty to protect the land and the water in their entirety.
Article XIV, in fact, is protective of the entire web of life. Given the extent of Forest Preserve acquisition on the lake, it plainly demands from our governments wild conditions and fully functional natural ecosystems within the watershed, along the shores, and in the waters of Lake George. State governors and government typically treat Article XIV far too narrowly. It’s not just about prohibition of tree harvesting. Article XIV, upheld by our Court of Appeals in 2021, acts as a powerful restraint on our human inclination to manipulate the natural world, and should be embraced as doing such by governors and responsible state agencies like the LGPC, APA, and DEC.
Governor Pataki compares today’s herbicide proposal with one during his days in office, in 2004. He writes that his administration stopped the application of the chemical SONAR to kill Eurasian watermilfoil in Lake George. Not quite.
In fact, twenty years ago the Adirondack Park Agency held a public hearing about introducing the chemical SONAR into Lake George to gather expert witness testimony. That is the key contrast with today’s APA.
All the issues wrapped up in today’s decision – from hydrodynamics, the movement of water between the two bays and main body of the lake, or hydrolysis, the rapid breakdown of ProcellaCOR in water in a matter of days, or all the other biological, chemical and physical factors to be weighed in deciding the current issue points to an abject failure of the Adirondack Park Agency to hold hearings in 2024.
Like SONAR, ProcellaCOR meets all the Agency criteria for hearings in order to receive sworn, expert testimony about complex, controversial management of Lake George in which various experts sharply disagree. Hearings before an impartial law judge guarantee that arguments are not insular and one-sided, but diverse, substantive, challenged, cross-examined, and entered into a record on which a final permit decision is based.
Pataki’s APA properly held such a hearing in 2004 (on applying the chemical SONAR), and after weeks of hearing evidence and compiling the hearing record, the APA decided it could not reach the legally required determination that there would be no undue adverse impact to Lake George waters from introducing SONAR. Being unable to reach that determination, the application was denied.
Hochul’s APA simply does not want to hear and to weigh sworn evidence at all, viewing formal hearings, to quote their staff, as “unnecessary,” “burdensome,” and “ trial-like.” APA leadership states that APA staff review is as informed , comprehensive, and thorough as any hearing. However, listen to the staff presentation at last week’s meeting. It heavily favors the applicant’s arguments for ProcellaCOR introduction – in this case, by another state agency, the Lake George Park Commission. In the absence of a public hearing, the APA behaves like most planning boards where applicants and their consultants and lawyers have a very big advantage over other voices.
Governor Pataki got it right, but even his argument in the Times Union to Governor Hochul about not doing harm to the legacy of Lake George is too limited. New York governments, including the DEC, the Lake George Park Commission and the APA have a duty of restraint when it comes to Lake George (and much else). In the absence of an adjudicatory hearing with sworn evidence from all parties serving as the sole basis for a permit decision, Article XIV of our State Constitution, the Adirondack Park Agency Act, the Environmental Conservation Law, the Plan for Lake George (1985) all combine to prohibit the merely expedient, experimental application of herbicide into Lake George.
Photo at top: Lake George from Deer Leap, Tongue Mtn range. Photo provided by David Gibson.