Judge hears arguments over injunction to block herbicide use on Lake George

State wants to apply milfoil treatments this month

By Zachary Matson

The state’s lawyers on Wednesday argued in Warren County court that the Lake George Park Commission should be allowed to move forward this month with a plan to use an aquatic herbicide in the lake’s battle against invasive Eurasian watermilfoil.

Joshua Tallent, an assistant state attorney general, contended that 30 years of milfoil control efforts on Lake George had failed, and the commission needed to use the herbicide to protect native plants and habitats. 

Judge Robert Muller of the state Supreme Court in Warren County noted Lake George has been around for thousands of years and milfoil has long posed an environmental threat as he pressed Tallent about why the park commission couldn’t wait longer to carry out its plan.

“What’s the urgency that this product is applied in the next few days?” the judge asked. “What’s the harm in that kind of pause?”

Tallent said the areas targeted for herbicide use have proven especially difficult to control and that the growth of milfoil posed a risk of continued ecological degradation.  

“For decades, 30 years or more, the park commission has attempted to get in front of this milfoil problem, and they are failing,” Tallent said. “It’s ecologically a disaster.”

Tallent made the argument in a hearing over whether Muller should impose a preliminary injunction that would bar the park commission from applying ProcellaCOR EC this summer.  

Attorney Michael Crowe, who is representing the Lake George Association and other challengers to the herbicide plan, countered that an injunction would preserve the current state of the lake as other issues were worked out in court. If the judge allowed the state to move forward with the plan this month, he continued, any result from continued litigation would be meaningless. 

He said the association was not there to argue on behalf of the milfoil, noting its long history of supporting hand-harvesting and diver-assisted control methods, but to argue for more time to study the potential impacts of the herbicide on Lake George. 

“Let’s at least know before we pour it in, because once we’ve poured it in we are not going to get a court order to take it out,” Crowe said.

Muller did not issue a ruling at the end of Wednesday’s hearing but emphasized the compressed timeline if the park commission is to apply the herbicide this year, promising a ruling soon. 

The park commission is required to apply the herbicide by June 30 under its Adirondack Park Agency permits, and agency leaders would need time to plan around weather conditions. They have agreed to hold off on any application through at least June 15, waiting for the judge’s ruling. 

While the hearing focused on the injunction, both sides reiterated broader arguments. State agencies argued that ProcellaCOR has been deemed safe after extensive federal and state reviews and proven effective as it has been used on scores of lakes around the northeast, including in some New York lakes. 

Crowe, who also represents the Town of Hague and a lakeshore property owner, called for more extensive study of the product as it relates to Lake George and suggested state agencies violated important procedures when granting permits to use the herbicide. He pointed out that the state had failed to file a complete administrative record with the court before the hearing.

The judge also raised the question of why the APA did not call an adjudicatory hearing to examine the herbicide issue. The agency has not conducted one of the hearings in over a decade, frustrating some environmental groups. Tallent said the hearings are only necessary if an issue is raised that cannot be addressed by other administrative methods and argued opponents of the herbicide plan had not raised such substantive issues.  

The judge noted the large public interest in the herbicide plan — dozens of people attended the hearing and some gathered outside beforehand with signs calling to protect the lake. Crowe said the adjudicative hearings should be held on matters of substantial interest.

The lawyers also touched on the particular uniqueness of Lake George. The overarching argument of the herbicide detractors has been that while the product has been studied by many government agencies, no study of its effects on Lake George have been carried out, which the association has promised to support. Lake George has quick-moving waters resulting in wider dispersion of chemicals, potentially impacting drinking water and lake species, some opponents have said. 

But agency officials and Tallent argued that the same dynamics that apply to many comparable lakes that have seen positive benefits from the herbicide also apply in Lake George. 

“They just want to delay,” Tallent asserted.