As they enter a second week of late budget negotiations, Governor Hochul and the state’s legislative leaders reportedly are focusing on their top budget priorities: funding for K-12 education, Medicaid, and housing.  An important looming issue that has drawn little media attention is the effort to put the largest fossil fuel companies on the financial hook for New York’s burgeoning climate damage costs. 

That issue is squarely on the budget negotiating table since the state Senate included it in their one house budget plan.  The state Assembly also included language showing that they too wanted the fossil fuel industry to kick in for climate damages.  Since thus far Governor Hochul has remained mum on the issue, any lack of agreement can only be attributed to her opposition.

Given the secrecy surrounding budget negotiations, New Yorkers are in the dark about what is going on behind Albany’s closed doors, but at some point soon, they will know.  Yet, the effort to make the climate polluters pay received a boost last week.

According to a report issued last week, only 57 oil, gas, coal and cement producers are directly linked to 80% of the world’s global fossil CO₂ emissions since the Paris climate agreement,  the year when nearly all countries signed the U.N. Paris Agreement, committing to take action to curb climate change.  Although governments pledged in Paris to cut greenhouse gases, the report found most companies had expanded their fossil fuel production since 2015.

This expansion, which continues to this day, runs contrary to a stark warning by the International Energy Agency that no new oil and gas fields can be opened if the world is to stay within safe limits of global heating.  Climate scientists say global temperatures are rapidly approaching the Paris threshold of going no more than 2.7 degrees Fahrenheit above the pre-industrial era.  Failure to keep to that limit could lead to dire consequences for the planet.

Global energy-related CO₂ emissions hit a record high last year, according to the International Energy Agency and 2023 was the hottest year on record.  The world’s climate experts urge that the world needs to virtually eliminate its reliance on fossil fuels by the middle of this Century or face environmental and humanitarian catastrophe.

Back in New York, action has been taken to set strong climate goals.  In 2019, the Climate Leadership and Community Protection Act (Climate Act) was signed into law.  The Climate Act is among the most ambitious climate laws in the nation and requires New York to reduce economy-wide greenhouse gas emissions 40 percent by 2030 and no less than 85 percent by 2050 from 1990 levels.  Those goals are in line with the best climate science that is available. 

In December of 2022, a state commission issued its blueprint on how best to implement those goals.  The report called for the creation of a “resilient infrastructure fund and prioritize investments in Disadvantaged Communities.”  To date, no such fund – at least one that can handle the scale of the problem – has been established. 

It was that call that inspired the legislation advanced in both houses to make fossil fuel polluters pay up for New York’s climate damages: the Climate Change Superfund Act.  Governor Hochul has not said what her position is on the legislation and has advanced no alternative. 

New York’s climate costs are expected to skyrocket.  It has been estimated that Long Island alone faces up to $100 billion in climate costs.  A study from NYS Comptroller DiNapoli found that over a ten-year period (the last five and next five years), more than half of New York localities’ municipal spending outside of NYC was, or will be, related to climate change.  New York City estimates as much as $100 billion will be needed to upgrade its sewers for more intense storms.  And those costs are on top of the $52 billion that the U.S. Army Corps of Engineers has estimated is needed to protect New York Harbor from rising sea levels.  Those costs – like the temperature of the planet – are expected to keep increasing.

New Yorkers could see those costs rise to as much as $10 billion annually.  Last year alone, the governor announced over $2 billion in spending on costs related to climate damages and efforts to boost the state’s climate resiliency.  Taxpayers shouldn’t have to bear that burden alone.

Unless Governor Hochul supports making the climate polluters pay, the costs of addressing the damages from a worsening climate – repairing roads and bridges, protecting low-lying areas, adding air conditioning to schools and much more – will be borne by taxpayers.  Unless the governor weighs in, those most responsible for the mess that we’re in – the biggest oil companies – are off-the-financial-hook. 

Big Oil has known for decades that the burning of fossil fuels would trigger a heating planet and possible devastation.  The most recent revelation is that the industry knew as early as 1954 of the possible dangers.  That adds to the evidence that despite knowing the industry did all it could to undermine efforts to address the climate crisis they caused and knew was coming.

New Yorkers will soon know where Governor Hochul stands on this important issue.  Once the final budget is approved, taxpayers will know if they will see some relief from climate costs.  If they don’t get it, there is only one person who should answer the question “why?” – and that’s Governor Hochul.

Whoever established the date for the beginning of New York State’s fiscal year must have had an ironic sense of humor.  April 1^st is the first day of New York State’s fiscal year, meaning that it should be the day that a new budget is supposed to be in place.  The April Fool’s joke is that in modern times it almost never is.

Under New York State’s Constitution, the executive branch is required to submit a balanced budget to the Legislature usually in January.  Unlike the vast majority of states, New York’s fiscal year starts on April 1^st – the earliest in the nation.  While that gives lawmakers only three short months to cobble together a state budget, for the vast majority of the decades that the requirement has been in place, budgets were set more or less on time.  It wasn’t until the mid-1980s that the fiscal “wheels” started to come off.

During the Mario Cuomo years (1980s and early 1990s), budget timeliness got progressively worse.  And it kept getting worse.  During the Pataki years (1994-2006), the late budgets grew later, one budget being adopted 133 days after the beginning of the fiscal year!

Chronically late budgets make a mess of the finances of local governments, which cannot develop responsible budgets when state aid is still up in the air; late budgets disrupt state services since agencies are not sure of funding levels; and late budgets fuel public cynicism about their own democracy.

When budgets have been late, it’s often due to a decision by one of the three top leaders – the governor, the Senate Majority Leader, or the Assembly Speaker – to hold up the budget as a way to derive some beneficial leverage in policy negotiations.  In addition, while the public outcry may have been loud, elected officials felt that there were no meaningful electoral consequences resulting from late budgets.

New York’s court system changed that with a decision in 2004 that gave the governor far more control over the budget process.  It wasn’t until the budget crisis in the aftermath of the financial meltdown of 2008-2009, (after a very late budget) that a governor chose to use those powers to drive the budget process.

It is now widely viewed that New York’s governor has outsized budgetary constitutional powers vis-à-vis the Legislature.  Former Governor Andrew Cuomo used that power to get approvals for on-time (or nearly on-time) state budgets.  That started to change toward the end of his tenure and the trend has worsened over the past four years, with last year’s budget being approved in early May.  

Add this year to that list.  The budget deadline came and went this weekend with no agreement.  Instead, lawmakers and the governor agreed last week to extend the current budget through April 4^th, giving them another week to try to hammer out a budget deal.

Getting the budget done by April 1^st is what Governor Hochul and state lawmakers are supposed to do.  The state budget is the centerpiece of the legislative session, the most important task that voters “hire” lawmakers to do when they cast their votes.  Failure to do so just feeds an increasingly cynical electorate’s assessment that Albany can’t get its work done like it’s supposed to.  In the real world, however, the impacts of a late budget – as long as it’s done within a week or so – are not significant.  As long as public employees get paid and agencies can do their work, the only real impact is that lawmakers will not get paid until the final budget deal is done.  As seen in the state’s past, the longer the budget fight goes the greater the impacts.  For example, late budgets can delay payments to those vendors – including nonprofit service providers – who have contracts with the state.

This year’s budget delay is tied to significant differences – some financial and some not – between the executive and legislative budget plans, particularly spending for education, Medicaid, and to encourage more affordable housing.  Last year it was Governor Hochul’s demands in the area of public safety that jammed up the budget process.  This year, housing policy might be the sticking point.  Whether a good or bad idea, the inclusion of a housing proposal in the budget will not be central to the finances of the state budget. 

But when it comes to state budgets, things can change very, very quickly.  Just when budget negotiations seem stalled, an hour later it accelerates toward conclusion. 

Unfortunately, all of those deals will be cut in secret.  By the time the public (and too often many rank-and-file legislators) finds out what the final product is, votes will have been taken and the new budget will be in the books.

No April Fool’s Joke:  It shouldn’t be this way. After all, it’s your money.  Until Albany changes its ways, New Yorkers should be on guard because the joke – such as it is – is on us.

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.