Jun 27
2024
Hochul, Schumer pressured regulators over STAMP
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Editor’s note: This is the first of a two-part package. Our second story is here.
In the drive to build a massive industrial park in rural Genesee County, the offices of Gov. Kathy Hochul and U.S. Sen. Chuck Schumer pressured regulators to issue approvals for the project that ran afoul of environmental laws and policies, ignoring an indigenous nation’s legal rights along the way.
Investigative Post found that:
Aides to Hochul pushed top officials at the state Department of Environmental Conservation to work more quickly.
Schumer aides intervened with the U.S. Fish and Wildlife Service.
And a string of state lawmakers, both Republicans and Democrats, as well as local and state development officials, urged the governor, senator and regulators to move faster on permits for the industrial park.
The pressure campaign was brought on by the Genesee County Economic Development Center — the local industrial development agency — and succeeded in getting regulators to speed up permit reviews for its Science Technology Advanced Manufacturing Park — STAMP. The faster work led to serious mistakes and missteps along the way.
Two permits have run afoul of federal law. For one of them, the Fish and Wildlife Service failed to consult with the Tonawanda Seneca Nation, a violation of the National Environmental Policy Act. That permit has since been revoked, in part because contractors spilled drilling fluid in protected wetlands. For the other, the DEC approved a wastewater permit that, at present, stands to violate the federal Clean Water Act. The wastewater could harm a nearby creek, environmentalists say.
At another point in the permitting process, the DEC approved a Genesee County IDA plan to preserve fewer acres of land for endangered or threatened birds than environmentalists said was needed. The state Audubon Society said the DEC’s decision could harm the habitat of the northern harrier hawk and short-eared owl. One environmental attorney described the conservation plan greenlit by the DEC as “ecological alchemy.”
“I don’t think Kathy Hochul is ever saying … ‘go break the law,’” a former Hochul administration official said. “She’s saying to DEC: ‘We have a deadline.’”
“We certainly suspected political interference from the senator,” Alex Page, a longtime attorney for the Tonawanda Seneca Nation, said in reference to Schumer.
Watch our one-minute summary of the story.
Investigative Post’s findings are based on a review of more than 10,000 pages of internal emails and other documents from the Genesee County IDA, the state DEC and the governor’s office obtained via the state Freedom of Information Law. The investigation also involved interviews with 20 people, including Tonawanda Seneca Nation members, attorneys and academics familiar with STAMP, and four former state officials, two of whom worked under former Gov. Andrew Cuomo and two who worked under both Cuomo and Hochul.
Hochul’s office, Schumer’s office, Empire State Development, the DEC and Genesee County IDA officials all refused repeated requests for interviews.
In a statement, Schumer spokesman Ryan Martin said the senator’s office did for STAMP what it would do for any constituent navigating the federal bureaucracy. He described interactions with the Fish and Wildlife Service as “routine.” He added that Schumer supports STAMP because of the many jobs it could bring to the region — something he, Hochul, and Genesee County IDA officials have all said previously.
In a lengthy statement, the DEC said its “permit review processes are thorough, transparent, and most importantly, guided by stringent state and federal environmental laws and regulations.” The DEC did not address questions of political pressure on the agency.
New York State Gov. Kathy Hochul and Senate Majority Leader Chuck Schumer.
The Tonawanda Seneca Nation, which opposes STAMP’s development, worries that the industrial park will harm — or even destroy — nearby creeks the Nation fishes in, as well as the Big Woods, a large, old-growth forest they rely on for hunted food and natural medicine.
“It sets a precedent of what else? We have fought it, but it doesn’t mean that the outside entities aren’t going to encroach on our borders more and more,” said Scott Logan, a Nation sub-chief.
“Really? It’s got to be right there? Go put it somewhere else.”
A need for infrastructure
Located in the Town of Alabama, halfway between Buffalo and Rochester, STAMP is surrounded by thousands of acres of environmentally sensitive land protected by both the state and federal government. It also borders the Tonawanda Seneca Nation’s territory.
The 1,250-acre STAMP needed a lot of infrastructure — water and sewer mains, power and natural gas lines, an electric substation and a wastewater treatment plant — and permits for all of it.
The squeeze on state and federal regulators arose, records show, from a clash between the need for that infrastructure, the sensitivity of the surrounding land and rules requiring regulators to consult with the Nation on the permits. The requirement to consult is DEC policy and federal law.
The stakes are high.
The STAMP wastewater pipeline. Photo via DEC.
The IDA has so far lured in hydrogen producer Plug Power and Edwards Vacuum, a parts maker for the semiconductor industry. Together, the companies have pledged to invest $1 billion and hire nearly 700 workers, anchoring the fledgling industrial park. Empire State Development has invested nearly $100 million into STAMP infrastructure and various agencies have approved more than $300 million in subsidies to Plug Power and Edwards Vacuum.
If the IDA couldn’t obtain its STAMP development permits in a timely fashion, the agency and its backers feared it could all collapse. So began a pressure campaign.
“The potential exists that if the DEC permitting process fails to meet timelines, Plug Power’s project could be severely delayed with major repercussions,” three Western New York lawmakers — Sen. Ed Rath III, Sen. George Borrello and Assembly Member Steve Hawley — wrote to Hochul in June 2022.
“Need top-level push,” Rochester-area state Sen. Jeremy Cooney wrote to Hochul’s chief of staff, Karen Persichilli Keogh, in his own 2022 missive. “We need executive assistance to get DEC to issue the permits.”
An email from state Sen. Jeremy Cooney to Hochul chief of staff Karen Persichilli Keogh.
Together, the lawmakers, ESD and other STAMP backers successfully pushed Hochul’s staff and DEC leaders — including Interim Commissioner Sean Mahar — to get the agency’s Monroe County office to speed up permit approvals, according to emails and a former DEC official.
Mahar and former DEC Commissioner Basil Seggos “were getting phone calls and being told, or being asked, what the holdup was: ‘Why aren’t these permits being issued?’” said the former DEC official, who worked on STAMP permitting and was not authorized to speak publicly about the work.
The result: “We worked faster,” the person said. “I think it was because there was political interest at the top that was coming down.”
Four former state officials told Investigative Post they couldn’t recall similar pressure on regulators happening during Andrew Cuomo’s tenure, despite his reputation as a micromanager. The former DEC official said Cuomo would push the agency f0r permits, but said: “It wasn’t like the STAMP project where we had ESD calling and checking in.”
Pushing from Schumer staff
At three critical junctures in 2021, 2022 and 2023, Steve Hyde, president and CEO of the Genesee County IDA, and Mark Masse, his deputy, called on Schumer’s staff and senior DEC leadership in an effort to speed up the permit process, according to emails.
For STAMP’s wastewater pipeline, the Genesee County IDA needed a right-of-way permit from the Fish and Wildlife Service so it could run the line through the federally protected Iroquois National Wildlife Refuge. Annoyed by what they viewed as the Fish and Wildlife Service’s slow pace, Hyde and Masse turned to Schumer’s staff for help, emails show.
“We’ll think through the best approach with the [Fish and Wildlife Service]. Frustrating that this is still not finalized,” Jon Cardinal, Schumer’s economic development director, wrote to Hyde and Masse in late 2020.
Illustration by Garrett Looker.
By April 2021, Masse had grown frustrated himself. He wrote to Chris Zeltmann, regional director for Schumer: “If we cannot start construction by the July 15th date, we will not be able to meet the need that Plug Power’s project will have for process wastewater. I cannot believe that we have spent five years on this and are still having to wait.”
On July 1, there was good news.
“It sounds like [Fish and Wildlife Service] is making this a priority and that there are no issues at this time,” Masse wrote to Zeltmann.
Two months later, Hyde and Masse had their federal permit in hand. Masse thanked Schumer and his staff for their help.
Masse sends a thank you to Schumer’s staff for their help with a key permit.
“I just wanted to thank you and the Senator for your tireless efforts in assisting us through the permitting process. It is greatly appreciated!” he said in an email.
There was, however, a major problem. The Fish and Wildlife Service never consulted with the Tonawanda Senecas before issuing the permit, a violation of the National Environmental Protection Act.
The issue would come to a head in 2023.
Pressure on DEC leads to issues
Pressure on the DEC came in the summer of 2022. In need of multiple permits for the wastewater pipeline, a power line project and more, emails show Hyde, Masse, Plug Power, National Grid and state lawmakers engaging in a full-court press on the DEC. After breaking ground in October 2021, Plug Power CEO Andy Marsh said the company would be fully operational by early 2023. That meant 2022’s construction season was critical.
“Given the agreed upon goal was to do all we can to avoid impacting Plug Power’s schedule and now we are within 2 weeks of doing so — I was wondering if there is anything that can be done to get the nine permits/clearances finalized and issued in the next few days?” Hyde wrote in an August 2022 email to Mahar, then deputy DEC commissioner, and Tim Walsh, the head of the DEC’s Rochester office.
Hyde emails then-deputy DEC Commissioner Sean Mahar asking for help on permits.
The Genesee County IDA officials felt the Seneca Nation was dragging its feet, using its consulting status to delay the project.
“It appears that the Nation’s intent is merely to delay the review of the substation rather than to engage meaningfully,” Masse wrote.
The Nation denied that charge, arguing the real delay was the IDA not sharing full documentation so Nation members could adequately assess the impacts STAMP might have on their territory.
“The Nation was getting a ton of pressure from DEC over that summer to consult on a wide range of discrete permitting issues,” Page, one of the Nation’s lawyers, said. “DEC was really trying to cram as many of those things into single meetings as possible.”
Eleven days after Hyde’s email to Mahar, DEC approved all nine permits. He thanked him for “the assistance and priority focus.”
Among the permits DEC approved was a wastewater discharge permit which stands to violate the Clean Water Act. A faulty assumption by the DEC regarding phosphorus means wastewater from STAMP could harm Oak Orchard Creek. The agency has been attempting to correct the issue for several months.
Watch our story from October of last year.
In its statement, the DEC said it has not yet authorized wastewater discharges into the creek and that it continues to work with the IDA on “options to remove phosphorus in the watershed in order to achieve necessary nutrient reduction requirements.”
The final exertion of pressure on regulators came in the spring and summer of 2023.
Drilling fluid spills into wetlands
By May, the Fish and Wildlife Service had acknowledged to the Nation it had failed to consult on the right-of-way-permit. To remedy that and other issues, Holly Gaboriault, acting regional chief for the National Wildlife Refuge System, told the Nation in a May 15 letter that her agency would suspend the STAMP permit and perform additional environmental reviews.
The Genesee County IDA objected.
“We have checked with our legal counsel and we cannot see any authority that the USFWS has to pull the permit as long as we are in compliance with the terms of the permit,” Masse wrote to the Fish and Wildlife Service. “This further delay will also jeopardize the hundreds of millions of dollars invested in the STAMP site to date as well as the Edwards project.”
Email from Mark Masse to U.S. Fish and Wildlife Service, later forwarded to Schumer’s staff.
Masse forwarded his missive to Schumer’s staff, and emails indicate they met with Genesee County IDA officials about the permit suspension at least once. Schumer, just weeks prior, had announced he’d personally lobbied Edwards Vacuum to locate at STAMP.
Two weeks later, at the end of May, the Nation learned the Fish and Wildlife Service was reversing course. The permit would remain in place.
“In [its] letter, USFWS disrespects and dishonors the Nation-to-Nation relationship by breaking its stated commitment to suspend the above-mentioned permit,” the Nation wrote to the Fish and Wildlife Service.
The following month, Masse wrote to Schumer’s staff, thanking them for intervening with the Fish and Wildlife Service.
“We hope that [Fish and Wildlife Service] doesn’t try to do anything last minute again,” he said. “As always, we appreciate all of your help and the Senator’s efforts with the development at STAMP!”
Contractors last year spilled hundreds of gallons of hydraulic drilling fluid into protected wetlands. Photo via DEC.
Construction of the wastewater pipeline began a few weeks later. In August and September, contractors experienced a “frac out,” causing hundreds of gallons of drilling fluid to spill into the wildlife refuge’s wetlands. The DEC issued a citation and said it might fine the agency. Weeks later, the Fish and Wildlife Service shut down work on the pipeline until cleanup was finished.
Today, STAMP hobbles along. Plug Power has paused work on its project as it waits for a Biden administration loan to keep it afloat. For the past month, its stock has floated around $3 per share, down from a 2021 peak of $67. In April, the Fish and Wildlife Service revoked the right-of-way permit needed for the wastewater pipeline, a consequence of the spills. Genesee County IDA officials have said they’ll find other ways to handle the industrial park’s wastewater in the meantime.
As more companies commit to STAMP, the IDA will need more permits. The Tonawanda Senecas said they’re committed to fighting it to protect the Big Woods.
“It’s our land. And it’s where we’re going to live. Where my kids are going to live,” said Linda Logan, a Nation clan mother. “It’s very, very emotional.”
Friday: The history of encroachment on Tonawanda Seneca Nation territory and why leaders oppose the development of STAMP on their doorstep.
