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He Won Key New York Environmental Battles That Reverberate Today: Celebrating Al Butzel

Al Butzel at City Hall in 2009 (photo: Tracy Collins @threecee)

A towering figure in New York environmental law for the past half-century, Albert K. Butzel is relocating to Seattle to be closer to family. Al and his wife Brenda depart this weekend. We worked alongside Al over the years and offer our reflections on his enormous impact below.

First, Charles Komanoff, a policy analyst who runs the Carbon Tax Center and is active in the campaign to bring congestion pricing to New York. Then, attorney Michael Gerrard, who practiced environmental law full-time in New York for 30 years and since 2009 has been a professor and faculty director of Columbia Law School's Sabin Center for Climate Change Law.

From Charles:

I met Al nearly 50 years ago. It was late 1973, a fraught but exciting time. My stint as energy analyst at New York City’s Environmental Protection Administration (as the Department of Environmental Protection was then called) was coming to a close, with the technicolor mayoral torch of John Lindsay passing to the stolid clutches of mayor-elect Abe Beame.

I had a secret to share with Al, concerning a contested power project Con Edison had been trying for a decade to build in the Hudson Highlands 50 miles north of mid-Manhattan. Al was attorney for the gentry who had won the landmark 1965 “Scenic Hudson” decision granting citizens legal standing to defend natural or historic places. Con Ed had subsequently modified its design to mitigate the project’s intrusion on Storm King Mountain. After years of stasis, ground-breaking was imminent. 

Lindsay’s environmental agency was overseeing the permitting. Along with an attorney there, Ken Semmel, I had devised an ingenious alternative, pairing combustion turbines with heat-recovering generators making both electricity and steam. Our configuration might actually compete with the Con Ed plan on cost, efficiency, and reliability. Around Thanksgiving, City Hall cleared the agency to send Con Ed our plan for comment. It was time to open a public channel.

I contacted Al. Meeting was a bit like looking in a mirror. We were probably both surprised at the other’s relative youth. I was 26 but looked closer to 20. Al, in his mid-30s, was just as skinny and still boyish. He was rumpled, easy-going, and affable. He spoke with a lilt, sometimes laughing at his own words, but he was steely and, at the end of the day, no-nonsense.

I described our concept. Al quickly grasped that our plan appeared to beat Con Edison at its own game. It would burn less oil, make less pollution, be buildable in stages, and, sited in Manhattan and the Bronx, be more reliable. It may have been Al who deduced that municipal tax revenues from our plan could neutralize criticism that we were advancing the economic interests of wealthy landowners.

That day launched a collaboration lasting half-a-dozen years. In short order, Al arranged for me to present my Storm King alternative to a Washington audience that included Westchester member of Congress and conservationist Dick Ottinger — and to leak our analysis to New York Times reporter Pete Kihss, who cornered Con Ed into preparing a response. When no deep flaws emerged, our plan gained the support of the state attorney general, in mid-1974.

From then to 1980, the Storm King project died a slow death, its demise multiply determined. New York’s near-bankruptcy, cratering power demand, Con Ed’s 1977 transmission-caused blackout, fears of larval striped bass destruction from Storm King’s massive water pumps, all played a part. Ken’s and my labors possibly rate an historical footnote.

Al’s work on Storm King as litigator and strategist was a different matter. For years after the “Scenic Hudson” decision, when Con Ed still had economic muscle to push the project forward, he kept the utility off-balance. His unflagging confidence gave Hudson River defenders faith we could prevail. Al always insisted that a better solution lay in store that wouldn’t mar the Hudson Highlands. He was right.

Storm King Mountain (photo: Charles Komanoff)

It wasn’t long before the two of us took up an even bigger issue, nuclear power. The Long Island Lighting Company was juggling two reactor ventures on Suffolk County’s north shore. Shoreham had a construction permit from the federal Atomic Energy Commission, but Jamesport, a much larger project 20 miles east, still faced public hearings. 

It was 1975, four years before anti-nuke activism would be turbocharged by the Three Mile Island meltdown in Pennsylvania. Oil-dependent, tech-rich Long Island was hospitable to nukes. Ann Carl, a biologist from the north shore village of Lloyd Harbor, had other ideas. Channeling dissidents like Rachel Carson and Jane Jacobs, Ann considered nuclear power expensive and unnecessary and wanted Lilco to prioritize energy conservation and efficiency before Jamesport. She hired Al, and Al retained me.

It didn’t take us long to apply what we had learned from our Con Ed work. Knowing that Storm King depended on cheap, surplus nuclear electricity to overcome power lost from pushing Hudson River water uphill to a reservoir each night, we peered behind the atomic curtain. Rather quickly, we saw that the nuclear power industry, a juggernaut from the outside, was reeling from cascading regulatory changes and delays that piled up carrying costs. On paper, spiraling oil prices validated more nuclear power from plants like Jamesport. In real life, the combination of costly oil-fired power and the struggle to build two reactors at once pushed up Lilco’s electric rates, driving down demand and drying up financing.

These critiques, obvious in hindsight, were heretical at the time. Al never shied from them. I’ll say he was a born contrarian, a lover of undisturbed nature, and a spoiler for a good fight. Riding into battle with Al, you had the edge. There seemed no argument he couldn’t win, no trap he couldn’t wriggle out of, no adversary he couldn’t outwit. Not just the smartest guy in the room, he was the most effective. 

From Michael:

When I graduated from law school in 1978 I joined the boutique environmental law firm Berle, Butzel & Kass. It mostly represented community groups fighting projects that threatened to worsen local pollution. 

Along with Peter Berle, who would later become state environmental commissioner, Al taught me how to try a case. Two were particularly memorable. The first concerned a proposed U.S. Postal Service vehicle maintenance garage in Manhattan’s Chelsea neighborhood. Al was the lead lawyer, and he contended that the Postal Service's environmental impact assessment was inadequate because, among other things, it failed to consider an alternative site that had been proposed by a young, flamboyant real estate developer named Donald Trump. 

The federal judge hearing the case stopped Al's argument at that point and said, at some length, that Trump was a blowhard who had never really built anything and never would, and his proposals should not be taken seriously. Al stood there stoically while the judge lashed into him, and then proceeded calmly to try the case. 

The other, far weightier case concerned Westway. For close to a decade, Al was the lead lawyer fighting this proposed underground interstate highway along the Hudson River on Manhattan’s west side, which opponents branded “a massive real estate development project masquerading as a highway.”

He first contested it on the grounds that it would bring more traffic and therefore air pollution into Manhattan’s congested streets — an argument developed by his expert, Brian Ketcham, the engineer who had devised a plan in the waning days of the Lindsay administration to meet federal clean air standards through a combination of policy carrots and sticks designed to curb motor vehicle traffic.

Ketcham’s thesis was an early expression of the paradigm now known as induced traffic, which holds that expanding road capacity temporarily makes driving easier and more efficient, up until the increased traffic volumes cancel the initial boost in vehicle speeds. This argument is today nearly gospel (except among hardened, senior highway officials), but in the 1970s it was no match for the ridicule from the state transportation officials pursuing Westway.

The trial on the induced traffic issue took place before a hearing officer of the New York State Department of Environmental Conservation in one of the twin towers of the original World Trade Center. The lead lawyer on the other side was Frederick A.O. Schwarz Jr., a legendary trial lawyer from the even more legendary law firm of Cravath, Swaine & Moore. (Ordinarily the state attorney general’s office would have been representing the state, but the attorney general at the time, Bob Abrams, opposed Westway and made the state hire outside counsel.) The first cross examination I ever conducted was of an expert witness called by Schwarz; that was intimidating, to say the least, but Al coolly coached me through it.

One of the major issues in the case was whether there was enough parking capacity in Manhattan’s commercial garages to hold all the cars Al said would be attracted by the highway; if there weren’t, maybe they wouldn’t come. The official numbers in the city’s records indicated there were enough, but Al didn’t trust them. So Al spent several weeks riding around Manhattan on his bicycle, stopping at every parking garage and writing down the number of spaces it had posted. The other partners in the firm questioned whether this was the best use of a senior lawyer’s time (when I became a senior lawyer myself, I realized that of course it wasn’t), but Al was insistent on getting the numbers right.

The hearing officer (a retired upstate judge) recommended that the permit be granted; the DEC Commissioner (reporting to Governor Hugh Carey, a strong supporter of Westway) signed the permit. Thus ended our traffic case.

Al then pivoted to the aquatic biology he had learned in the Storm King dispute. To Judge Thomas Griesa of the federal district court for the Southern District of New York, who was hearing the lawsuit, he brought fisheries biologists who testified that creating the 220 acres of new landfill to undergird Westway would grievously harm the habitat of the striped bass that spawned upriver before leaving the Hudson to populate New York and New England bays and sounds. Under Al’s questioning, the biologists stressed the potential devastation, highlighting the highway’s appropriation of ten percent of the river’s expanse along Manhattan’s west side.

The biggest question in the trial was whether the Army Corps of Engineers had been intentionally misleading when it said in its environmental impact statement that this stretch of the Hudson River was a “biological wasteland.” From time to time plain brown envelopes containing internal Corps documents would appear under the door of our law firm when we entered in the morning. We never learned who slipped these documents to us; we called the source “deep fish.” But the papers helped us prove that the Corps had indeed been misleading. Judge Griesa pronounced from the bench, “I’ve thrown people into jail for securities fraud for less.” 

During this time, Al made sure to coordinate his public push to protect the river with appeals from transit advocates led by NYPIRG’s Straphangers Campaign to use Westway funds to bolster the transit financing that activist MTA Chair Richard Ravitch was cobbling from state and federal funding sources. 

After two long trials, Al, our colleague Mitch Bernard, and the Westway opponents prevailed. The massive highway was shelved and eventually replaced by the boulevard-type West Street and the parallel Hudson River Greenway, now the nation’s most heavily used bicycle path. And nearly a billion dollars — a critical infusion at the time — was traded in from the highway project to improve the city’s mass transit.

The two of us owe Al a great deal. More importantly, so do New York’s urban environment, the surrounding natural world, and all who call New York home.

Charles Komanoff is a policy analyst who runs the Carbon Tax Center and is active in the campaign to bring congestion pricing to New York. Michael Gerrard is an attorney who practiced environmental law full-time in New York for 30 years and since 2009 has been a professor and faculty director of Columbia Law School's Sabin Center for Climate Change Law.

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