Issue of the Week

A Splendid Park -- But at What Price?

by Michael A. Rivlin

In their fanatical, take-no-prisoners lobbying effort in support of a deluxe waterfront park along Manhattan's Hudson River shoreline, zealous leaders of an environmentalist alliance betrayed some of the green community's long-cherished principles. Was the project worth the price?
i. The Nascent Park vi. Deepening Rift
ii. The Nascent Alliance vii. Behind Closed Doors
iii. Democracy be Damned viii. Process Overlooked
iv. Pier Review ix. Epilogue
v. Unholy Alliance

Late last year, in several closed-door meetings in lower Manhattan, members of the New York region's environmental community found themselves cast against character in an uncomfortable and bewildering role. At the meetings, convened to discuss the granting of a permit to construct a park along Manhattan's pier-lined Hudson River shoreline, a representative from the U.S. Fish & Wildlife Service (USF&WS) argued that the project, extending from Battery Park City to 59th Street, might harm the Hudson-Raritan Estuary's irreplaceable natural resources and thus required a thorough evaluation of its environmental impacts. Meanwhile, Albert Butzel, chair of an alliance of the region's largest environmental and civic organizations, argued that the development project, despite the many uncertainties that surrounded it, should be allowed to proceed without delay.

It was developments such as this one that had lead a well-connected member of New York's environmental community to ask me to investigate questions surrounding the development of the Hudson River Park, as it had come to be known. He was, he said, genuinely confused by the issues, and by the behavior of some of the actors. Had they fallen under the spell of money and power that was fueling the park juggernaut? Was the park an honest-to-goodness sensible compromise - a few hundred acres of degraded estuarine habitat but one terrific playground for Manhattan's West Siders? And regardless of whether or not the park was ultimately a good idea, how did a situation arise in which a coalition of New York's largest environmental groups was opposing the sort of open process they would normally champion and attempting to block careful examination of a project that the federal government considered potentially damaging to the animals and habitat of the Hudson-Raritan Estuary?


How did a situation arise in which a coalition of New York's largest environmental groups was opposing the sort of open process they would normally champion?
People often ask journalists to delve into and deliver opinions about stories they are too busy or lazy to investigate themselves. But as I immersed myself in this story, my acquaintance's question began to seem more and more curious. He sat at the center of the region's environmental community. He spent his days talking with power brokers in the top ranks of the region's environmental groups, some of whom were major players on the Hudson River Park project. He sat on the same boards they did. Weekended where they spent their weekends. If anyone should have been able to deconstruct the mess, it was he.

# # #

The Nascent Park

In the late 70s, New York City and State officials had conceived a plan to fill in the Hudson River along the West Side of Manhattan, creating a platform on which a new federal superhighway and associated development would be built. Westway, best described as a boondoggle, went down in defeat, in part because scientists found that the pier-lined waterfront provided critical habitat for striped bass. Almost from the moment the project was killed, seeds were planted for a park - a development project, as its opponents like to refer to it - for the strip of land between Manhattan's route 9A and the Hudson River as well as the adjoining and largely abandoned piers, which had been acquired in 1981 by New York State as a right of way for the doomed superhighway.

A concept plan for what this urban waterfront playground might look like was drawn up in 1995 by the Hudson River Park Conservancy (HRPC), a state-controlled subsidiary of the Urban Development Corporation (UDC). From the get go, it was a compromise of the sort New Yorker's were all too familiar with. The original concept - presented in a handsomely produced book designed to sell the project - was a beguiling vision, marinated in money, of an imperial park engineered for sophisticated Manhattanites. In the ribbon of land parallel to the road, the "park experience" illustrated in the book included such conventional elements as benches, trees, bicycle paths, ball fields and esplanades where visitors could stroll along the water. Then, there were the more deluxe "world class" amenities: replica lighthouse beacons at gateway entrances leading to about a dozen rehabilitated and landscaped piers where visitors could stroll out onto the water, shop, eat, become steeped in the natural and social history of the river, catch a water taxi, stretch out on an artificial beach, go for a cruise on their yacht anchored at the marina or walk down and dangle their toes in the water at so-called "get downs." As befitting a manufactured experience of the sort popularized by Disney theme pabks, the designers had come up with broad neighborhood-based themes of their own for different segments of the park, reinforced with exhibits, outdoor furniture, fountains and sculpture. There was "colonial history," "science and ecology," "the working waterfront," not to mention "tourism and entertainment." In short, the Hudson River Park was a splendid playground.

Andy Mele, then environmental director of Clearwater, an environmental group in Poughkeepsie, who had been ambivalent about the park, recalled looking at the plan as depicted in the booklet and saying to himself, "Fuck, if I lived in that neighborhood I'd be totally happy to live next to that."

But there was a catch. The project would cost 350 million dollars, most of which would be paid for by the taxpayers. But bowing to prevailing wisdom, the Conservancy said that as there would not be enough money in the public coffers to maintain the park, about 30 percent of the area on the rebuilt piers would be devoted to private, commercial endeavors, whose revenue would be used to pay for the park's upkeep. This plan, featured prominently in the Conservancy's concept brochure, was promoted as an exceedingly clever strategy for insuring that money would always be available for upkeep and maintenance.

And something had been left out of the spiral-bound concept plan. The brochure went out of its way to praise the recovery of the river and its current state of environmental health. The Estuarium, an estuarine education and research center run by the environmental group River Project and that sat on a pier in the park's footprint, was singled out as a feature in the new park. And there were plans for "ecological piers," derelict piers that would be allowed to decompose naturally and provide a platform for indigenous wildlife. But despite numerous advisory boards, charrettes and community meetings with everybody who was anybody, the plan appeared oblivious to any potential environmental impacts - such as reducing the value of the habitat for striped bass and winter flounder. If concern for the river ever entered the minds of the Conservancy's heads, it was far down on their list. As the Conservancy wrote in its introduction, "[N.Y. Governor Pataki and N.Y.C. Mayor Giuliani's] commitment to the park will improve the quality of life in New York City for residents, boost tourism, leverage private investment, stimulate the maritime and regional economy, enhance the value of local real estate, and protect the Hudson River." Protecting the river, an afterthought in the sentence, would remain an afterthought in the coming years.

Without political support from Albany, the plan languished, until Albert Butzel, a well-connected former attorney, arrived on the scene. Butzel, as are so many actors in this drama, was a ghost of Westway. He had been a lawyer for groups opposing the highway, including Clean Air Campaign, headed by Marcy Benstock. Before that, he represented Scenic Hudson, the Poughkeepsie-based environmental group, and helped litigate the groundbreaking Storm King case, which forced Con Edison to abandon its plan to build a hydroelectric generating station in the Hudson Highlands. Two years before Westway's finale, Butzel handed off his case files to his partners and left the office. "It was strictly a case of burn out," said a fellow Westway attorney, explaining why Butzel left the Westway case in the lurch, and left the practice of law for good. He retired to his Madison Avenue co-op to try his hand at writing novels and short stories about love, relationships and family. The manuscripts sat in a drawer, and by the early nineties, refreshed and rested, he was ready to tackle the case again.

Though he was, he said, a very good litigator, Butzel had always viewed himself as detached and dispassionate, distant enough from an issue to always be able to see the other side's point of view. "I was very committed to my causes," he told me, "but gung ho is something else." Now no longer a lawyer, he had come to think of himself as a consensus builder. The park needed some consensus, for there was already strong opposition from some circles to its construction. He saw in the languishing park plan unfinished business in which he could play a starring role, unifying park developers, environmentalists and neighborhood activists against the few opposition voices, getting the park built and finally laying Westway to rest.

# # #

The Nascent Alliance

Towards the end of 1996, with support from John Adams of the Natural Resources Defense Council (NRDC), Carol Ash of the New York chapter of the Nature Conservancy, Paul Elston of the New York League of Conservation Voters (NYLCV) and Jim Tripp of Environmental Defense Fund (EDF), Butzel began to assemble the Hudson River Park Alliance. Eventually numbering over 30 member organizations and with Butzel as its chair, it was in all respects an "A" list of the region's premier environmental and civic groups. Working with local groups normally far too busy maintaining their own small kingdoms to have much time for cooperation, Butzel herded them together, lined them up on the Alliance letterhead and got them marching in an almost straight line. It was a supreme achievement.

"I thought it was miraculous," said River Project director Cathy Drew. "Maybe it was just entropy, but no one had tried to form that kind of alliance before, even of all the environmental groups let alone all the civic groups. Everyone's in their own little world. And here was a guy who managed to convince us that we should all work together."

Having persuaded Pataki to support the Conservancy plan, in 1997 the Alliance began working with N.Y. State Assemblyman Richard Gottfried and N.Y. State Senator Franz Leichter to draft legislation that would transform the Conservancy vision into law, and create a structure for how it would be governed -- a revision of legislation that had been defeated in 1994.

The first version of the new bill, drawn up in an admittedly slapdash fashion and lacking all provisions for environmental protection, failed, largely because of lack of political support in Albany. A redrawn version was resubmitted and passed in 1998. Among its other features, the bill shifted governance of the park from the Urban Development Corporation (for all practical purposes the HRPC) to a new entity, The Hudson River Park Trust, whose 13 members, appointed by the governor, the mayor and the Manhattan borough president, would include the N.Y.S. Commissioner of Parks, the N.Y.S. Department of Environmental Conservation Commissioner and the N.Y.C. Parks Commissioner.

The Hudson River Park Act specifying the five-mile long, 550 mostly-watery-acre-park was not, however, the realization of a pure, burning vision but rather a bill full of compromises and contradictions. While it declared the watery area of the park between the piers a protected sanctuary under the Hudson River Estuary Management Program, the bill assigned the job of drafting and administering a management plan for the sanctuary to the Trust - a group of political appointees most of whom would have no experience planning or running wildlife sanctuaries. And it was a sanctuary not adjacent to but actually enveloped by a busy public park, and that would be compromised by numerous structures and uses that had nothing to do with the river. It was a public park run with private dollars raised through commercial development in the park's midst. And it was a project whose construction could have potentially massive impacts on a critical estuarine habitat but whose details were exceedingly vague. John Mylod, an environmentalist opposed to many aspects of the project, called the bill "Loophole City."

Drew, whose organization, headquartered in the park's footprint, stood to benefit substantially from its establishment, but who would later come to criticize Butzel's behavior, was ecstatic. "Every single thing in the bill is an improvement over what was there before," said Drew. "We all felt euphoric when that bill went through."

# # #

Democracy Be Damned

Though the Alliance signed up most of the area's civic and environmental groups, there were some notable, noisy, highly principled or at least radical holdouts. These included Marcy Benstock's Clean Air Campaign, Friends of the Earth, the New York City Sierra Club and New York Public Interest Research Group (NYPIRG). Unaffiliated but on their side was John Mylod, an aristocratic Hudson River commercial fisherman, though "fisherman" may convey the wrong impression. Tall, reserved, with a fisherman's sense of navigation and a trial lawyer's command of rhetoric, Mylod is a board member of Environmental Advocates and the former executive director of Clearwater, a group that played a central role in opposition to Westway.

Benstock and Mylod were the two leading opposition voices. As I told many people during the course of writing this piece, if Benstock had been my primary source for information on opposition to the project, I would not have given the story a second thought. In recent years, she had become notoriously abrasive. Like many people, I could not get past the messenger to hear her message (see "Butzel v. Benstock"). Mylod was another story. Despite Mele's assertion that he was under Benstock's "Svengali-like spell," by reputation and from my dealings with him, I knew Mylod to be a wise, fiery but reasonable man. If Mylod believed something was amiss, it was worth investigating.

In place of what project opponents saw as the deluxe, elite vision of the Conservancy, Mylod and his confederates argued that a more modest, conventional waterfront park - bikeway, trees, benches, scenic vistas and some rehabilitated piers free from stuff that doesn't belong on the water - would have sufficed and could have been paid for entirely through public funds. "A simple, natural, affordable park that looks like a real park," said Benstock wistfully.


Opponents were appalled by what they saw as the failure of governmental agencies to oversee the project and protect the habitat.

But apart from these few elements that both sides said they wanted, the opponents objected to most everything else envisioned by the Conservancy and championed by the Alliance: the park's design, its cost, its governance, its inclusion of commercial ventures as a way of paying for upkeep. And they were appalled by what they saw as the failure of governmental agencies to oversee the project and protect the habitat.

Mylod and the other opponents to the project -- they recoil from the word "park"-- shared a dark vision of what the state wanted to do along the West Side of Manhattan, and were not shy about discussing their overarching interlocking conspiracy theories. They viewed the park, the act that legalized it, the Conservancy that designed it and the Alliance that supported it, as elements in a large conspiracy to facilitate uncontrolled real estate development on and along Manhattan's West Side piers. The park was merely camouflage, they said, to allow the development to take place without alarming citizens. The payoff for a politician's support of the park would be campaign contributions from real estate development interests, as well as votes he or she would attract by championing and delivering a project that not only provided needed park space but also appeared to make a positive contribution to the environment of the Hudson River. An alliance of environmentalists and civic groups supporting the project made the lie believable. The argument by Alliance founders that the West Side piers were falling apart, and that the habitat would be ruined unless something was done to help, they said, was created as a way to start a stampede of support, inducing organizations to join the Alliance and generating public support for the park. And they explained EDF's, NRDC's and NYLCV 's support for the development project to their collective decision to "deliver for Pataki."

Other arguments advanced by Mylod's side appeared to be intentionally misleading. For example, the Hudson River Park project never involved filling in hundreds of acres of the river - a charge that appeared in materials issued by park opponents and that was voiced during a public hearing held by the U.S. Army Corps of Engineers in July 1998 at which the organization City Project spoke about "unstated plan to fill in the river." Mele, who remains a close friend of Mylod's, called some of the opposition to the project "gratuitous obstruction."

"John and Marcy believed the Hudson River Park bill is a plot," said Mele, "and that's all I got out of them. They were obsessed with the conspiracy. They were obsessed with the means. I was trying to look at the end."

But apart from their wilder and more sinister conspiracy theories, there was something to the opposition's criticisms. Allowing the Hudson River Park Trust to manage the park was, in their view, an insult to the very idea of democracy and an open invitation to corruption. While certain members of the Trust could perhaps be counted upon to act in the public interest - the state and city parks commissioners, and the NYSDEC commissioner - others would, in Mylod's view, be political appointees sympathetic to real-estate interests, "people sympathetic to the Pataki administration's goal of making available to a lot of campaign contributors and others massive leasing opportunities and construction jobs." Free from oversight, and public scrutiny and accountability, the Trust's powerful and wealthy members - or at least members indebted to the powerful and wealthy - would not be bound to follow the public's wishes, and could alter their plans at will, allowing continued destructive development. The process was inherently unfair, arranged by New York City's elite to favor politicians and real estate developers. "It boils down to not very much democracy," said Mylod, despairingly. "Democracy be damned."


Allowing the Hudson River Park Trust to manage the park was, in their view, an insult to the very idea of democracy and an open invitation to corruption.

Then, there were the high costs. First, the park, said critics, would cost city taxpayers hundreds of millions to construct. And even though revenues generated by commercial development would support the park's maintenance, they might not always prove sufficient; any shortfall in revenue generation would fall on taxpayer shoulders. The park would also put a demand on city services, such as mass transit, police, fire and sanitation.

Finally, opponents objected to what was planned for the piers and the interpier areas between them. Devoting even 30 percent of the area to commercial development was an affront to their sensibilities. The park, in their view, was not a park at all but a commercial river development project, or "develo-park," as Mylod called it.

"For all of their ranting about how we're going to lose the river," said Mylod, "the Alliance leaders know very well that this is about commercial development. Private development sets a very dangerous precedent that in the future public parks will require private dollars and so will have to accommodate commercial development." And the 30 percent was just the beginning. Benstock, Mylod and their allies viewed the unnecessarily deluxe project's construction and maintenance costs as so high, and in their view so certain to spiral ever higher, that it would allow the Trust to justify even more development. The park was to be built in segments, and with sometimes vague descriptions of what was planned for each segment, opponents predicted that in five or ten years increasing construction and operating budgets would generate pressure for more commercial development in the interpier area in order to supply additional funding. There was a deluge of real estate development money, they argued. A tiny rivulet in the dirt would quickly turn into a gully and pretty soon a roaring river. The fact that the Hudson River Park Act contained specific language restricting the amount of space in the park that could be used for commercial development didn't reassure the opponents, who argued that politicians beholden to real estate interests would simply amend or rewrite the legislation.

Recalling an early proposal to build a golf course on barges in the river, Baykeeper director Andrew Willner, whose organization belonged to the Alliance, said that despite the need for open space in New York City, "you're always going to have somebody who's predatory in the process, and is willing to spend the money to do something which is obviously over the edge. So what I think happens is you have this sort of development on the piers, and you wind up with more of this sort of development adjacent to or nearby or in the water. And we don't have a lot of faith in the state and federal agencies that have that regulatory power. What we worry about is that things like regulations and laws can be changed, and who's to say what's going to happen in five to ten years."

Butzel argued forcefully that the bill he had helped craft would prevent such abuses, and that one of the Alliance's primary goals and greatest achievements was the creation of legislation that provided habitat protections lacking in the original Conservancy concept plan. "If you pass legislation that says, these areas are park and this is what park means, you can't have commercial in them. Even if it's true that the economics of the park force people to look for new revenue sources beyond what we anticipate being there, there's a very, very substantial obstacle to that revenue source being the development of these park areas. You'd have to change this legislation, and that would be extremely difficult."

"The track record of the city is one of double agendas and multiple agendas," observed Michael Ludwig, a marine ecologist with National Marine Fisheries Service (NMFS) and a player in the lower Estuary since Westway days. "John [Mylod]'s principle concern is, there is no certainty that the park will be a park come the year 2005. And he has a deep, well-founded mistrust of the city in terms of their ability to carry through on activities."

In their nightmares, critics imagined clones of Chelsea Piers, the much-criticized waterfront commercial amusement park already constructed in the park's footprint and whose paid-admission activities make about as sense on the Hudson River as anchoring a Bertram yacht on the front lawn. "I've been to Chelsea Piers once," said NYPIRG senior attorney Gene Russianoff, "and some of it serves good purposes. But I'm repulsed by the notion that these piers are parking lots and a Greg Norman boutique. It's crazy - the edge of the waterfront with private restaurants that only people from Denver would eat at."

# # #

Pier Review

While it is clear that project opponents found aspects of the development antithetical to their lifestyle, what worried Mylod and others most about the park construction were potential threats to the Hudson River habitat now and in the future - a future that the legislation had never clearly defined. The Alliance dismissed their concerns about habitat, accusing opponents of not wanting a park at all.

"This characterization is simply not true and the Alliance spokespeople know that," shot back Mylod. "It is out of corporate America's playbook to discredit your environmental opposition at every chance. The misinformation and nuanced lies that the other side has put out rivals GE and the PCB issue."

In fact, there was a great deal to be concerned about. As the USF&WS wrote, the portion of the river included in the park was "considered among the most productive systems for fisheries along the northern Atlantic Coast" - especially for overwintering winter flounder and striped bass. Had the river been filled and Westway been built, scientists theorized, the remarkable recovery of striped bass stocks to historical levels now underway might never have occurred.

Observed Ludwig, "Even though it is in the public's best interest to build a park, is it in the public trust resources' interest to build a park in the way that best benefits the public? Chelsea Piers is a nice place to play, but is it good for striped bass? The answer is, probably not."


The portion of the river included in the park was 'considered among the most productive systems for fisheries along the northern Atlantic Coast.

The dense numbers of piers lining Manhattan's West Side, and the pile fields that remained poking out of the water long after a derelict pier's decking had fallen away, played a significant role in creating the habitat. Although all the reasons the interpier area is so attractive as winter habitat weren't clearly understood, scientists theorized that the pilings slowed the velocity of the river current, creating the calm backwaters sought by young fish at a time when their metabolisms are slowed and food is in short supply. Recent studies had shown that the fish were most abundant at the pier edges. Shaded portions of the water, such as those at the pier's center, had far less value as habitat. Remnant pile fields provided some of the best habitat to be found along the shoreline.

The intricacies of the Act made for different interpretations by different parties. The Conservancy and the Alliance, whose positions were identical, argued that the Hudson River Park Act, by defining the interpier sections of the park as a sanctuary, was the best way to protect the piers. Critics charged that the bill used sleight of hand to redefine the piers as separate from the water, removing them from the rules governing the sanctuary, thus allowing authorities to build what they wanted when they wanted. For example, critics pointed out that the park plan called for some pile fields to be cut down entirely, while other piers would be re-planked, leading to more shading and reduced habitat value. And they worried about the potential disturbance to the ecosystem caused by a massive construction project involving bulkhead repair and rehabilitation of the dilapidated piers. Their fears intensified as the Conservancy began to think through its project in more detail, and realized that the 13 piers once thought only in need of rehabilitation would actually have to be demolished and rebuilt entirely. What would such a disturbance do to the river? And while the new piers would be exactly the same size as the ones they replaced, they would be supported on thicker and thus fewer pilings, perhaps increasing the flow of current and making the interpier areas inhospitable to the overwintering fish.

The argument advanced by Butzel that the only way to preserve the habitat was to rebuild the piers and place commercial development on some of them was, charged Willner, nonsense.

"To try to justify building more Chelsea Piers and those sorts of things - I think that's just flimflam," said Willner. "I think that that's a developer's concept of how to preserve piers. Piers are not places for development. They're places to tie ships up and to load and unload cargo. They were never meant to be huge piling cities in the river."

Critics had additional concerns. They worried about the potential effects that items called for in the legislation - a large marina, mooring fields, water taxi stops, floating bridges and structures anchored alongside and between piers, platforms leading down to the water, a moored coast guard cutter and even an artificial beach - would have on the precious habitat. Some structures would shade the water, reducing habitat value. The activity associated with added boat traffic could easily scare off fish and waterfowl. And the additional facilities over and adjacent to the water would inevitably lead to increases in nonpoint source pollution, further degrading the habitat.

Mylod was especially concerned about the "ecological piers" called for in the bill, a concept in which native vegetation would be encouraged to grow on four dilapidated piers. He said that the structures would probably require large amounts of pesticides, herbicides and fungicides to keep the area free of invasives. The chemicals would wash into the water, possibly injuring blue crab larvae that also depended on the pier habitat; crabs are one of only two commercially harvestable species left in the river. What's more, the ecological piers would further shade the water.

From the point of view of fish and wildlife, said its critics, the Hudson River Park was a disaster.

Commented Benstock, "We had the Westway decision having had a salutary effect on politicians and habitat destroyers all over this country for the last 13 years. If they learn they can make a complete end run around it and tear it down by calling a river development project a park and by attacking people who want to preserve natural habitat and on and on and on, then it sends a message loud and clear that every habitat is up for grabs."

# # #

Unholy Alliance

Although Butzel's Alliance appeared to speak with a unified voice in supporting the Hudson River Park Act, it was in many ways an illusion. While ad hoc coalitions of disparate groups are rarely seamless, the Alliance lacked cohesion almost from the start. "It's a group that, by its nature, resembles an army of cats who are not easily kept going in the same direction at the same time," said Michael Gerrard, an environmental attorney who worked under Butzel during Westway days. Butzel, the consensus builder, achieved only moments of consensus among the Alliance members.

"I think Al forged an agreement by using a combination of the skills of a lawyer, a rabbi, a general and a dentist," continued Gerrard. It was dentistry without Novocaine. Though some organizations were eager to join, Butzel had to apply significant pressure to bring others into the fold.

"Environmental and civic groups were cajoled or browbeaten or lured into the Alliance," charged Mylod. Such was the case with Environmental Advocates (EA), the Albany-based environmental lobbying group. Said another EA board member who asked not to be identified, the organization was "subjected to very severe arm twisting" to get them to join the group.


The Alliance was dentistry without Novocaine.

According to Mylod, and confirmed by other sources, Tripp and Elston, both EA board members, argued that "the train is pulling out of the station and that every right-thinking organization was on board and Environmental Advocates would look silly and marginal, like the opponents of the legislation, if it did not join the Alliance. Never, in any of the debates, was the substance of the issue or the legislation discussed. They had to have Environmental Advocates as a member. Then they could go around and say, all the top environmental organizations in New York State are for this. And it's just the cranks like NYPIRG and Friends of the Earth and Sierra and the Clean Air Campaign who are opposed."

Once on board, it was around habitat issues that the interests of Alliance members tended to diverge most sharply. Manhattan's neighborhood groups placed an emphasis on recreation and open space. Conservation organizations, with offices upriver or on Sandy Hook, New Jersey, were more concerned with preserving the Hudson River habitat. Friction was inevitable.

"There obviously were organizations that felt more strongly about a habitat protection plan than others," said NRDC senior attorney Richard Kassel, who headed the Alliance's legislative committee that drafted the bill. "But I don't think there was anyone within the Alliance who thought that an estuarine sanctuary should not be in the bill."

However, that was not the situation at the start of the legislative drafting process. Splits over habitat protection occurred early on, as the Alliance was helping draft version one of the Hudson River Park Act. "I think that sometimes the enthusiasm for the recreational aspects of the park overbalances some of the issues of habitat protection," observed Cara Lee, environmental director of Scenic Hudson, an Alliance member. "Scenic Hudson waded in and we've certainly made our views known on what we think is the amount of expertise that needs to be brought in. And I think that many of the Alliance members have been very appreciative of that effort. Others have felt threatened by that, have felt that this is an effort to undermine the efforts to build a park, or that there will be a conflict between the recreational uses and the habitat protection."

>From the start, Lee urged that the interpier area of the park be designated a sanctuary as part of the Hudson River Estuary Management Program. Without provisions for habitat protection, said Lee, Scenic Hudson was prepared to oppose the bill. "We really weren't satisfied with the bill," said Lee, "and we made our concerns known."

While coalition members who were focused on open space might not have been expected to respond favorably to her entreaties, Butzel, who portrayed himself to others and to me as someone concerned with habitat issues, might have. For example, in a letter to Willner, Butzel wrote, "As you may know, I spent many years as a lawyer battling to save habitat on the Hudson, including the Westway interpier area which, together with Mike Ludwig and Frank DeLuise [of USF&WS], I was probably more responsible for saving than anyone else." However, an examination of his actions with regard to the Hudson River Park suggests that Butzel's priorities had changed.

Butzel and the other Alliance leaders dismissed Lee's habitat concerns, as well as concerns expressed by other Alliance members. Coalition members who did not want to be named charged that when the Alliance met to discuss drafts of the proposed legislation, the coalition's leaders did not tolerate dissention. Said one Alliance member, "Elston and Butzel ran the Alliance more or less as their own company. If some kind of issue was raised which wasn't to their liking, they either tried to disparage the messenger or ignored the item after the meeting. There was an attempt to ram [the first bill] through in the middle of the night without any of us really knowing what they were signing away."

I talked to anyone who had a problem," asserted Butzel, "and if they didn't like it they said so."

However, the Alliance eventually drafted a bill without habitat protection. And despite objections to the bill's language by Environmental Advocates and Scenic Hudson, Butzel and others lobbied for the bill's passage. In retrospect, everyone was glad version one failed. Said Butzel, "I'm glad it didn't pass. We made a political judgement that it was worth our while to try and get it. It may have been the wrong judgement."

While the bill was being redrafted during the following year, Lee repeatedly brought up her concerns, and made Alliance leaders realize they had better pay attention. Recalled Butzel, "Scenic Hudson put it to the Alliance that they would only go along with us if we went along with their position on the habitat. And we decided for political reasons that we were going to go along and do that."

The following year, the N.Y.S. Senate passed a much-improved second version of the bill. And despite reservations from some observers including NMFS's Ludwig, who was said to have found weaknesses in the bill's sanctuary provisions, even Alliance members who had been most militant about habitat issues were satisfied.

"At the end of the day," said Kassel, "what went into the legislation was the highest level of government habitat protection to the waterways in the park that the state has. Those organizations that in March were raising habitat issues were pounding the legislative hallways in June to get the bill passed."

Nonetheless, Butzel had made his priorities clear. "[The sanctuary program] wasn't something Al was very interested in," observed Drew. "He didn't seem too supportive of it in the beginning, and he seems even less supportive of it now that he's beginning to understand it."

# # #

Deepening Rift

Although Butzel and the Alliance may have engaged in some moderately questionable tactics during the legislative battle, their actions following passage of the bill were, in critics' and some Alliance members' eyes, over the top. What seemed to have happened, they said, was that Butzel became so focused on the end that he became oblivious to the means, so worried about loss of momentum in getting the project started that he was willing to drive over people standing in the crosswalk rather than apply the brakes. Increasingly, he ruled the Alliance from the top down.

"The Alliance is not its members at this point," Drew told me in the midst of a developing controversy. "The Alliance is Al and some of its members. We're not clear that the Alliance as a group knows about or wishes things that are being done and said and asked for in the name of the Alliance." Drew said that once the legislation had passed, the focus and objectives of the organization became fuzzy. "Something seemed to change at this point; the Alliance became much more of a mainstream entity, as opposed to being a watchdog entity. We seemed to be defending the status quo rather than watchdogging it."

In order to begin construction of the river portions of the park, the Conservancy required a permit from the N.Y.S. Department of Environmental Conservation (NYSDEC). As part of the permit application process, the agency often requires that applicants study and report on the potential environmental impacts of their projects in an Environmental Impact Statement (EIS). Such a comprehensive study of potential impacts and alternatives to minimize them would have presumably addressed the concerns raised by project opponents, and if not they would at least have been allowed to voice objections to the plans. A group of opponents, including Clean Air Campaign and Friends of the Earth, challenged the permit application with the goal of forcing a more detailed impact study, trying to raise issues in a hearing before an adjudicatory law judge relating to what they saw as the inadequate analysis of the project's potential environmental impacts, as well as issues relating to financing and governance. In part, opponents were disturbed that the Conservancy was applying for vague permits to do work on a park alongside what was to become an estuarine sanctuary without a management plan for the sanctuary that might prohibit the projects being planned. While hearings of this sort are not common, neither are they rare. Gerrard estimated that out of the several hundred major permit applications it receives each year, NYSDEC holds roughly a dozen adjudicatory hearings.

Without notifying some - or perhaps any - of the Alliance members, Butzel submitted papers to the court arguing that because opponents could raise no significant objections to the project the case should be thrown out, the hearings cancelled, and the permit granted to the Conservancy without bothering with further study of potential impacts. In a letter to Willner, Mylod wrote, "Regardless of whether environmental groups favor or oppose the [Hudson River Park Conservancy] projects, this position taken by the Alliance sounds more like a developer's argument." At a conference in midÐSeptember before the administrative law judge, the Alliance argued its position forcefully. The judge eventually ruled that the hearings were unnecessary, and a temporary permit was granted.

Kassel said that in the view of NRDC, because there had been several points in the state EIS process in which opponents had had the opportunity to participate fully and make their objections known, the adjudicatory hearings were unnecessary. "We thought it was important to lay out the basic legal test we've lived under for the last 20 years," explained Kassel, "which was, are there substantive and significant issues that haven't been addressed that are likely to result in the denial of the permit? In the end, the hearing officer didn't find that."

Kassel also disputed the idea that the Alliance had failed to notify its members, and asserted they "were briefed about where the Alliance was going each step of the way." However, several Alliance members told me that this was simply not the case, and that the action to oppose the hearing had been taken without their knowledge.

Even if no valid arguments arose from the hearings, having a group of the region's most powerful environmental and civic organizations place itself in opposition to the very sort of transparent process they normally champion and attempt to block an examination of the potential impacts of a large-scale construction project on an estuarine habitat was stunning. Willner viewed it as an attempt by Butzel to paint Benstock and other supporters as marginal characters whose arguments had no validity-shoes that he saw his own organization walking in from time to time.

Angered because Baykeeper had learned of the development after the fact, Willner told me, "I decided that enough was enough. This was one segment of the environmental community in essence saying, just because someone seems more marginal they shouldn't be allowed to participate fully in the regulatory process. And I said, we've been in, and will in the future be in, that position ourselves, and I don't want anybody, whether that be EDF or NRDC or Audubon, saying that my organization shouldn't be able to participate in a regulatory process. Everybody should have free access to that process."

In response to the action taken by the Alliance, Baykeeper and Environmental Advocates each wrote letters to the adjudicatory law judge disassociating themselves from the Alliance's opposition to the hearings. And both groups subsequently withdrew from the Alliance. "We find that decisions are being made and positions taken that we are not prepared to participate in or defend," wrote EA's executive director, Val Washington, in a letter announcing her organization's decision.

Although she did not recommend that Scenic Hudson leave the Alliance, Lee, who also heard about the action after the fact, had a similar reaction. "We were never formally asked to sign off on this position," said Lee. "We found out about it after the fact. That's uncomfortable." Lee confirmed that even if her group had been notified of the impending action in advance, Scenic Hudson would not have supported it. "Whatever regulatory process there is should be allowed to occur," asserted Lee. "The Alliance has always maintained to its members that it would adhere to all the regulatory processes. So to go in and argue against the hearing is contradictory to that."

Drew also said that she was never notified of the decision, nor does she believe were other members of the Alliance. "None of us knew anything about it," said Drew. "We weren't asked to vote on it, even in an informal way. I did not appreciate it."

"I call things as they are for me," said Butzel. "But clearly I'm a human being. And like anyone else my passions effect how I perceive things. I'm not foolish enough to suggest otherwise. I am interested in building a park. If they brought forward a substantial and significant issue in any way, I would have just sat silent. I think [what they did] does a disservice to the environmental movement. I'm not ignorant of the lessons of Westway and other cases. And I believe these people are just there to try and force their position that this is the wrong park, not because there's a significant issue about what the impact on the fish will be."

# # #

Behind Closed Doors

Towards the end of 1998, the Alliance became embroiled in the greatest controversy of its short existence, taking an action so serious that it caused its most powerful member group to pull back its support, and posed the most serious challenge yet to the Alliance's assertion that it was as concerned with Hudson River habitat protection as it was with park construction.

Projects of the scale of the Hudson River Park that potentially impact critical habitat in an Estuary require not only a New York State permit but also one from the U.S. Army Corps of Engineers (USACE) - a process that involves having the sponsor submit a detailed statement of potential environmental impacts as called for by the National Environmental Policy Act (NEPA). The Conservancy filed materials used in the earlier and much laxer state EIS process, hoping they would satisfy the federal process.

As they did in the state EIS process, park opponents raised concerns about finance and governance that they felt should be examined by having the USACE prepare a full federal EIS - in many peoples' minds not really the sort of issues that were intended to be examined by the process. However, they also raised serious habitat-related issues, again related to the vagueness of the project in the plans submitted by the Conservancy. The criticisms were echoed by NMFS and USF&WS - federal agencies that participate in the Army Corps permit process and that act as trustees on behalf of the publicly owned natural resources entrusted to their care. The agencies could not have been more forceful in their calls for a full examination of the project's potential environmental impacts, and in their lack of support for the park in its current form.

In June, a three-page letter penned by Ludwig and signed by NMFS's Stanley Gorski sent to the project applicants outlined in some detail the agency's reasoning behind the need for preparation of a new EIS. Noting that the portion of the Estuary in which the park was to be constructed supported many marine and estuarine species at critical stages in their life cycle, the letter concluded that the EIS submitted as part of the state process-the same one in which the judge had denied development opponents the chance to present their evidence "was deficient and inadequate" in its presentation of existing conditions and potential impacts. NMFS wrote that the current EIS was inconsistent or inexact, and noted that the EIS's analysis distorted research on the importance of piers in habitat creation. The letter objected to all sorts of things, including the placement of various structures having nothing to do with the water on or alongside the piers, as well as to the ecological piers and "get down" areas. NMFS concluded that the park would "present new or continued major encroachments into nationally recognized, valuable fishery habitats" and recommended that a thorough NEPA assessment be undertaken.

USF&WS's Sherry W. Morgan filed an equally strongly worded letter, which expressed outright opposition to the project and called for a NEPA review. It read, in part, "The concerns of the Service include locations of the project in areas used by migratory fish and birds, removal of fish habitat, non-point source water pollution, non-water dependent uses of some structures, and the potential for adverse cumulative impactsÉIt is the Service's position that the project will encourage the degradation of fish and wildlife habitats, and that the public benefits do not clearly exceed the public losses with respect to fish, wildlife, their habitats, and the public enjoyment and use thereof."


National Marine Fisheries Service recommended that a thorough NEPA assessment be undertaken

A coalition of environmental groups ostensibly concerned with habitat protection, even one supporting the park's creation, might have been expected to read the letters and ask the Conservancy to redraft its plans in order to minimize impacts. In fact, rather than asking the Conservancy to rethink its plans, the Alliance began waging a campaign so that HRPC would not be put through the costly and time-consuming ordeal of filing materials to be used in a federal EIS.

Drew said she was startled that there was little difference between the reactions of park developers and that of the Alliance following receipt of the letters from NMFS and USF&WS. "Certain members of the Alliance and the HRPC were saying, 'Oh, why did NMFS and Fish and Wildlife have to write these letters? If it weren't for these letters we'd have the Corps permit.' And I go, 'Well, yeah, that's what they do.' Those letters were pre-ordained. It seemed to me like a huge misunderstanding of the process of the Corps permit on the part of the Conservancy and the Alliance. There was someone who said to me at the Conservancy, 'Oh, these things are all political. You get enough people to stand up there and say, 'We want the permit,' and we get the permit. And if only we hadn't gotten these letters from NMFS and Fish & Wildlife we would have had it.' And I'm like, 'Yeah, but you were gonna get those letters.' And they're like, 'Oh Cathy, you're so na•ve, these things are all political.'"

As with the DEC permit matter, dissention was not tolerated. "To the extent that the Army Corps permit issues were discussed at meetings it was very minimal," said Drew. "They were brought up by Al very forcefully as things that were obvious, things that were right, things that were obviously right, things that we certainly wanted to do. And the original documents were not put on the table. And other points of view weren't really expressed or encouraged. How it was presented to us was millions of faxes and phone calls. Be sure to come to the public hearing and testify that we want the Corps permit. Say this and say that and you've got to write a letter.' I didn't do any of that because I knew that the Corps permit was not going to pass, because I have four Corps permits myself. The level of detail that's required is excruciating. And what they were handing in here was almost like a cartoon."

# # #

Process Overlooked

In a January 15 letter to the USACE, with copies to NMFS and USF&WS, the Alliance argued that the HRPC should not be forced to conduct a federal EIS because the project would have no significant environmental impact. "The resulting impacts will be little different from what exists in the River today," wrote Butzel. "To the extent there is any difference, the habitat will be improved because less area will be covered with structures when the park is completed than today." Argued the letter, "Preparation of a NEPA EIS would needlessly delay [the] project."

However, unlike with the state EIS controversy, the letter to the USACE was accompanied by a sheet listing Alliance organizations actually endorsing the position. Of the 31 groups now listed as member organizations on Alliance letterhead, only 23 had signed the letter. Conspicuous by its absence, together with Scenic Hudson and the River Project, was NRDC. After pondering the issue, NRDC had decided it could not support the Alliance's position. Kassel said that while he did not think there were issues material enough to warrant a full EIS, that park opponents were trying to use NEPA to address concerns it was never designed to do, and that the USACE would eventually arrive at a finding of no significant impact, it was a decision best left up to the Army Corps and the resource trustees.

"Any environmental organization should have the right to make their case," affirmed Kassel. "There are legitimate environmental issues that this project raises that need to be looked at: impacts on the habitat, transportation impacts, air quality impacts and community impacts. It's legitimate for people to raise those issues and make the case that they either were or weren't adequately addressed up to now.

"I think the process issues that have come up in the last few months have been extremely difficult for many of the groups in the Alliance, including NRDC. We've got a nearly 30-year history of using the courts to open up regulatory processes. A 30-year history of making sure that bad projects get stopped or bad administrative rules get the light of day. So as a result, we have a huge interest in open decision-making processes."

The Alliance's action was even more troubling in light of Butzel's new role. Following two USACE permit conferences open to the public, the doors were closed to all but representatives of the Army Corps, the Conservancy, NMFS and USF&WS. But over the objection of USF&WS's Christy Johnson-Hughes, Butzel was allowed to attend the permit conferences not as chair of the Alliance - a position he still held - but as a consultant to HRPC. "The service objected to his presence at the meeting, because he wears two hats," said Hughes. "And we were told that because he was hired as a consultant we could not keep him from the meeting because he was now a consultant to the applicant."

Butzel's new role infuriated Benstock and Mylod, and once again called into question his stated goals of habitat protection, for he now directly represented the interests of a park developer that had shown itself insensitive to habitat issues. Butzel and Ludwig were old buddies from Westway. And talks between Butzel (representing the Alliance) and Ludwig at NMFS's Milford, Connecticut, office regarding NMFS's objections to the park design had already taken place. Perhaps realizing that he could become one of the heroes of Westway II by making the project palatable even to its critics, Ludwig seems to have decided that compromise was the order of the day. In return for project modifications he thought were necessary to protect habitat in the lower Estuary, Ludwig would make certain that the USACE did not undertake a full federal EIS Two months after Ludwig's first strongly worded letter objecting to the project, NMFS sent a second conciliatory letter to the Conservancy saying its first letter, calling for "a thorough NEPA assessment," had been misinterpreted. The letter politely asked for some more information about the project and a more detailed description of the site and its resources, but added hopefully, "It appears that a cooperative effort with your resource consultant and our staff will produce much of the information we sought." It brushed aside its objections to using piers for non-water dependent uses. Finally, the letter suggested that there were several less onerous alternatives to having the Conservancy submit a full impact statement.

At the closed-door conferences, negotiations began in earnest in which Ludwig played the pivotal role. He won reductions in the project's scope and impact, including such concessions as elimination of the beach and marina, a reduction in the number of ecological piers, restrictions on wintertime construction so overwintering fish populations would not be disturbed, and a reduction in the number of pile fields marked for demolition. NMFS, said Ludwig, had won all its major points.

However, it appears that these modifications occurred not because Butzel persuaded HRPC, his client, that they would be beneficial to the habitat, but in spite of him. According to a source present at the meetings who asked not to be named, although Butzel sat silently for most of the time, there were occasions when he voiced objections to modifications to the park plan requested by the resource trustees, saying they would cause the project to be unnecessarily delayed. According to the source, on another occasion, Butzel, who had lavishly praised the Hudson River Park Act's habitat protection provisions, objected to the increased protection called for by the trustees, saying language in the act would make project modifications difficult to achieve.

"You've got to figure out how to get from here to there," Butzel told me. "And here people are worrying about whether you put down a concrete pile in the existing footprint, or how you do it, or whether you do it on November 13th instead of November 1st. Who's going to win and lose with that sort of thing from the point of view of the habitat?"

If Butzel thought the modifications designed to protect the habitat were irrelevant, Mylod thought they were illusions. Without the protection afforded by a full EIS, he said, the marina and all the other modifications would be reinserted at a later date.

"If the federal government uses the state EIS to in any way justify its actions, it would be tantamount to dereliction of duty," Mylod wrote me in one of his many E-mailed messages. "The State EIS will become another classic example of the bad EIS. It will be used in law schools as an example of the sham that it is and how government agencies, in this case UDC/HRPC, ignore the law, ignore the principles of environmental protection, ignore democracy and simply manipulate the process in order to do the bidding of those in power."

# # #

Epilogue

Shrill voices drowned out moderate ones on both sides of the Hudson River Park debate. Associates and allies all agreed that both Marcy Benstock and Albert Butzel proved themselves to be zealots. And despite the embarrassment they caused other environmentalists, it appears that no one had the strength or the will to rein in their leaders.

While extremism in defense of a position is no crime, Benstock and Butzel's erratic, unyielding behavior and occasional lack of manners unnecessarily polarized the debate and focused attention on their personalities rather than the issues.


Shrill voices drowned out moderate ones on both sides of the Hudson River Park debate

For example, the Alliance set for itself the task of not only drafting and lobbying for the Hudson River Park Act, but also defending it from attack. And rather than having to answer legitimate issues raised by park opponents, Benstock's behavior made her an easy target on which park supporters could draw a bead. In fact, project opponents charged that Benstock was the victim of a campaign waged by the Alliance to paint her, and by extension all opponents, as marginal characters on the fringes of the environmental community unable to move on from Westway's past and whose ideas were not worthy of considerations.

Park opponents were often described using the same phrases over and over, evidence, said critics, that there had been an orchestrated effort to discredit them and by extension their ideas. The word most often used was "marginalized," as in a June 1998 New York Times profile of HRPC founder Tom Fox by David Firestone in which Benstock was described as "the implacable (but increasingly marginalized) foe of Westway and the proposed park." Benstock, clearly upset, said, "I ascribe [the tactic] to a desire on the part of the biggest special interests involved here, whoever they may be, to eliminate the most credible source of the most information on this issue at this point. And that's me."

Even Alliance members came to regret the polarization of the debate and personal nature of the attacks against Benstock and Mylod. "Rather than Marcy and John's concerns being addressed, there's been an attempt by the Alliance to marginalize their concerns," commented Lee. "There are many Alliance members who feel that's legitimate because they feel that the Clean Air Campaign has simply been an obstruction, and will always be an obstruction."

Kassel, an Alliance honcho, genuinely surprised me once by acknowledging that some of the opponents' arguments had legitimacy. "The attacks turn a complicated policy debate into a soap-opera saga," said Kassel. "I don't think that's right. I think there are a lot of important issues that have been debated around this park in the last two or three years and Marcy and John and NYPIRG have played important roles in raising issues that everybody's trying to address. I think that it's easy for people to try to simplify some very complex policy debates down to a soap-opera saga of Marcy versus Al, and I think it's wrong to do that. I think there are legitimate differences of opinion about how the waterfront should be used, how the habitat should be protected, what sort of commercial uses should go into the park area, how the park should be governed. Those are legitimate policy differences of opinion."

Perhaps the acquaintance who claimed to be so puzzled by issues surrounding the Hudson River Park already knew the answers to the questions he asked, and just wanted someone more courageous (or foolhardy) than he to reveal the truth to the world. For when I told him what I'd found and my interpretations of it, he didn't seem surprised-just resigned. Though the project's original design had some worrisome elements, with the concessions won by Ludwig the park's impacts will be lessened and the Estuary will probably recover quickly from any disturbance caused by the park's construction. Some of the environmental concerns expressed by the development's critics are still very real, and the habitat will inevitably be somewhat the worse for wear. But the harbor is experienced at coping with insult. And, truth be told, this is not the biggest environmental threat the lower Hudson-Raritan faces. Finally, though the Trust governing the Hudson River Park and Sanctuary will inevitably make cottonheaded decisions in favor of special interests to which some will be indebted - in Manhattan, real estate money rules - the Hudson River Park will be a splendid park indeed.

But the end did not justify the means. And while only environmentalists can ultimately decide this, it would appear that the park was not worth the exorbitant price paid by their community which saw its dress stained, some of its long-held principles sacrificed and its leadership co-opted. It was one thing for the Conservancy to ignore the habitat and only when it was caught in flagrante delicto pretend it had always been concerned with the environment. Developers and their representatives, after all, say what is expedient. But it was unseemly for Butzel, on behalf of an alliance of environmental organizations, to do so, or more properly be allowed to do so. And it was a disgrace that, on behalf of the organizations the Alliance represented, he was allowed to oppose the sort of transparent process those same organizations so ardently champion. At one point, Butzel quoted one of Kassel's favorite sayings: "The perfect is the enemy of the good." However, what Kassel and NRDC, and Baykeeper, Environmental Advocates, River Project and Scenic Hudson understood, and Butzel apparently did not, is that heedless expediency at the expense of principle is an equally dangerous foe of what is good and right.

How much different might the situation have been, I wondered to an Alliance member as I wrote this story, if, perhaps following passage of the Hudson River Park legislation, someone had tapped Butzel on the shoulder, thanked him, and told him to step down. "No one is going to reel Al in," observed my source, "because nobody knows what he is doing."

© 1999 Michael A. Rivlin, all rights reserved.

This story originally appeared in the Spring 1999 issue of Estuarian.

Michael Rivlin is an independent environmental journalist and a contributing editor at Amicus Journal. He is writing a book about the history of PCB contamination of the Hudson River. For further information, he can be contacted at 321 Shore Drive, #6 Highlands, NJ 07732-1206 or at mrivlin@home.com