Thursday, September 27, 2012

Gerrard Lays Down the Law

In his testimony today Michael Gerrard, arguably the most respected environmental attorney in New York, will lay down the following markers for not only the city but the FHWA that has failed in its proper oversight authority over proposed Van Wyck ramps. Here is is testimony:

Draft Scope of Work for a Supplemental EIS

Willets Point Development


Statement of Michael B. Gerrard

September 27, 2012


My name is Michael Gerrard. I am an attorney with Arnold & Porter.  I represent Willets Point United and several of the small businesses that are members of WPU and that would be displaced by the Willets Point project.

I want to start by saying that the Federal Highway Administration’s approval of the Van Wyck ramps was explicitly based on an Environmental Assessment for the prior project.  That approval is no longer applicable because it was for a different project than is now being planned. The FHWA will need to do a new environmental review for the same reasons that the City is now doing a supplemental EIS. The supplemental EIS should reflect these additional steps.

The FHWA violated the National Environmental Policy Act by not doing a full EIS for the ramp approval for the old project. That violation would be made worse by not doing a supplemental review.  The federal statute of limitations for challenging such violations is six years, so we have plenty of time.

We will submit detailed written comments, but for now I would like to make these eight specific suggestions concerning the scope of the supplemental EIS.

1.  An additional alternative should be studied: A no-condemnation alternative that would  involve building the project without taking any properties via eminent domain. 

2.  The original EIS assumed that all the businesses could be readily relocated.  Four years later, relocation sites have not yet been found for my clients and others. The supplemental EIS must acknowledge this reality.

3. Since the original EIS was written four years ago, new projections have appeared for future sea level rise in the New York region. The supplemental EIS should include a new analysis of the effect of sea level rise and storm surge on the needed elevations for the site and the fill that will be required.

4. The City has a history of releasing wildly contradictory reports about the traffic impacts of this project, without ever clearly explaining the reasons for these discrepancies.  The supplemental EIS should include a table comparing the assumptions, methodologies and other inputs of the traffic study used there and all the prior traffic studies for this project, so that readers can understand the differences and draw their own conclusions as to which, if any, is valid.

5. The traffic analysis should include point-to-point travel time projections  under the various alternatives, including the no action alternative. Only this way will it be possible to understand the effect on emergency services, on airport access, and on other essential trips. Merely presenting speeds and volume-to-capacity ratios does not suffice to reveal true operational impacts.

6. As we have pointed out many times before, the assumptions underlying the original EIS’s traffic studies are deeply flawed. These are discussed in detail in Brian Ketcham’s testimony.

7. We assume the project’s traffic projections will be based on the reasonable worst case development scenario, but that should be made explicit.

8. Finally, the brief description of the project’s approval process is opaque in giving statutory citations without describing the actual steps involved in the new ULURP process. That should be corrected.