"Shouldn't they have to look at what it's doing to the environment?" That is a frequent question from people concerned about new development proposals in the city, from the Hudson Yards to downtown Brooklyn.
Many people are surprised that the answer is "yes." Prompted by the growing environmental movement, laws on the federal, state and city level were enacted in the 1970s that required developers to conduct an environmental review of major new developments. In the reviews, developers must disclose potential negative environmental impacts and propose measures that address them. Here in New York, any proposed land use changes that come before the City Planning Commission and City Council must first undergo an environmental review, and if they are considered to have a potential negative impact, the developer must prepare a detailed Environmental Impact Statement (EIS).
But most people never see the impact statement, much less understand it. The statement has become a boon for consultants who churn them out according to formulas as if they were SUVs on an assembly line. The environmental impact statement report for major projects like the Hudson Yards Plan is about as understandable to the lay person as a doctoral dissertation on civil engineering. Read on and you'll wonder whether the loss of trees to produce all that paper is worth the environmental benefit of the report. Many people who deal with the environmental impact statement - including community activists, planners and developers - recognize that after three decades it is time to review environmental review.
Fear of Litigation
Contrary to common belief, the environmental impact statement doesn't stop anyone from doing something that damages the environment. It only forces them to publicly declare it. From the start the environmental review process was skillfully designed to get around potential legal challenges by environmentalists who charged that the impact on the environment wasn't considered, and from developers who would undermine environmental laws saying they interfere with their property rights. In any case, the cost of doing an impact statement is minimal for big developers when compared to the litigation costs they could face. Neighborhood and environmental groups rarely have the time, money and expertise to challenge the impact statement, and courts are unwilling to second-guess the technical expertise brought before them when they themselves may not have it.
Once the developer discloses potential negative impacts in the statement, they have to outline ways they (or others, like local government) will "mitigate" those impacts - that is, deal with them in a way that will lessen the environmental damage. These mitigations, however, are voluntary. After the project is approved, it may take close oversight by local government (which is never guaranteed), and sometimes a lawsuit, to insure that the mitigation was carried out.
The mitigations that developers often propose can have a very limited effect. And they can even cause more environmental damage! For example, years ago a massive environmental impact statement was prepared by the city to look at the potential impacts of major new downtown Brooklyn developments. Mitigations included widening streets and moving traffic through downtown. This may have reduced the effect of some pollution-causing bottlenecks, but ultimately it will encourage more traffic, not less. A few minor improvements to mass transit were not enough to offset the environmental damage caused by the relatively small number of commuters who continue to use their cars to get to and through downtown. More effective mitigations might have included putting tolls on the East River bridges, restoring trolley service, widening sidewalks, and installing first class bicycle lanes and bike parking.
Often mitigations protect the owners and tenants of new development projects but have a negative impact on the surrounding neighborhood. For example, the developer of a new building complex may propose a ventilation system and windows that reduce the exposure of tenants to noise and air pollution, but the ventilation system itself can create more noise and pollution in the neighborhood.
Though it must be prepared according to official guidelines, the environmental impact statement is usually paid for by the developer. The city's mayoral agencies that oversee the process are traditionally boosters of development - real estate is perceived, wrongly, as the city's major industry -- and reluctant to make a fuss. In other words, the foxes are watching the chicken coop.
People in the city's neighborhoods are usually among the first to raise questions about environmental impacts. Their questions are direct: Is a project going to pollute the air or create more noise? Will it affect our health? What will be the long-run effects on future generations?
The environmental impact statement doesn't really help answer these questions. The city's 59 community boards manage the land use review process but don't have the professional staff to thumb through thousands of pages of technical jargon, charts and tables to figure out what they're saying or pick out errors or omissions. The 60 days each board has to review the proposal, hold public hearings, discuss and vote on a project fly by faster than you can get through the first chapter. Community boards can sit in on the initial meeting that lays out the scope of work for the impact statement, but have no real power to set the agenda so that it focuses on their concerns rather than run thousands of numbers through formulas.
The environmental impact statement can't answer the most important questions because its methodology is flawed. It looks at environmental impacts as a series of simple short term cause-effect relations, not as a complex of interrelated factors. It doesn't deal with the cumulative impacts of many similar developments over a long period of time - spanning generations, not years. It looks at the effect of individual pollutants discharged in the environment, and doesn't consider what happens when pollutants interact with one another. It doesn't consider the impact of pollution on public health - i.e., how many more cases of asthma are likely to be generated by the added traffic? It doesn't consider the potential for creating more "sick buildings" that use materials and are managed in ways that produce health hazards for the people that live and work there. It doesn't consider the extent to which the environmental impacts fall disproportionately on one or another group - for example, people with low incomes. It doesn't look at the secondary effects of displacement set in motion by new development. It doesn't address environmental racism, the systematic foisting of environmental hazards on communities of color. It doesn't consider the extent to which the project will create new demands for energy that are unsustainable in the long run. It doesn't look at the effect on the level and quality of public services, which are very much a part of the quality of the urban environment. And it doesn't consider long-term multi-generational, non-local impacts such as global warming.
Yet another problem is that many large-scale projects evade the environmental impact statement entirely because they are "as-of-right" - that is, they require no zoning change or other official land use action. An as-of-right 500-unit apartment building in Manhattan can result in more traffic and noise in a neighborhood that's already overburdened, and there will be no environmental review. Considering that many millions of square feet can be built in the city right now as-of-right, it would be foolish to rely on the environmental impact statement alone.
Overhaul of the environmental review system is long overdue. Even more importantly, city government needs to develop a broad environmental planning framework that looks at long-term multi-generational indicators of environmental quality -- such as Seattle's Agenda 21. Right now, New York City jumps from one project to the next without a clear strategic plan. Every mayor seems to have a development plan made up of their pet projects. But we have never had an environmental mayor with a serious strategy for reducing energy use, waste, and pollution, or solving the city's chronic public health epidemics.
In my experience, community residents and businesses are better able to think about their environment in a holistic way than consultants and agency bureaucrats, whose mandates are narrow and short-term. Community boards and community-based organizations need to have the resources to plan for their futures and propose sustainable development strategies that reduce environmental hazards and make for healthy neighborhoods. The environmental impact statement alone, even a good one, will never do that.
Tom Angotti is Professor of Urban Affairs and Planning at Hunter College, City University of NY, editor of Progressive Planning Magazine, and a member of the Task Force on Community-based Planning.