Home Public Transit Policy On the environmental review problem

On the environmental review problem

by Benjamin Kabak

As transit agencies look to expand and grow, one of the biggest obstacles is seemingly the environmental review process. Federal and state governments mandate lengthy and costly review processes that are supposed to find no impact. Never mind that the purpose of a project could be, say, a brand new subway line designed to improve environmental conditions; these requirements stand.

Take, for example, the Second Ave. Subway. After what was then 70 years of planning and some aborted construction efforts, the MTA still had to prepare a scoping document, a draft environmental impact statement, a supplemental statement and a final environmental impact statement before the groundbreaking. When the agency proposed shifting some entrances at 72nd and 86th Sts., the agency had to prepare yet another document to show no impact. As these documents are now over a decade old in certain cases, the MTA may have to do some of this all over again for future phases of the subway construction project.

Simple subway extensions aren’t the only projects suffering under the onus of environmental review. In The Times today, while coverage of the snow dominates headlines, Sam Roberts tackles the problem of environmental review in the context of the Bayonne Bridge project. This should be a simple effort to raise a bridge in its existing footprint to allow larger container boats into the New York Harbor, but the review process has been a disaster. Roberts writes of the history of the project after it was proposed in 2009:

The Port Authority of New York and New Jersey first spent more than six months importuning various federal offices to serve as the lead agency for an environmental review. The law is vague about which agency is responsible. The Coast Guard finally agreed.

Since then, the Port Authority’s “fast-track” approach to a project that will not alter the bridge’s footprint has generated more than 5,000 pages of federally mandated archaeological, traffic, fish habitat, soil, pollution and economic reports that have cost over $2 million. A historical survey of every building within two miles of each end of the bridge alone cost $600,000 — even though none would be affected by the project.

After four years of work, the environmental assessment was issued in May and took into consideration comments from 307 organizations or individuals. The report invoked 207 acronyms, including M.B.T.A. (Migratory Bird Treaty Act) and N.L.R. (No Longer Regulated). Fifty-five federal, state and local agencies were consulted and 47 permits were required from 19 of them. Fifty Indian tribes from as far away as Oklahoma were invited to weigh in on whether the project impinged on native ground that touches the steel-arch bridge’s foundation.

That’s just the beginning as Roberts airs out a full array of criticism against environmental review laws. “Environmental review has evolved into an academic exercise like a game of who can find the most complications,” Philip K. Howard, a lawyer concerned with onerous government regulations, said. “The Balkanization of authority among different agencies and levels of government creates a dynamic of buck-passing.”

Meanwhile, as the bridge is being raised to increase port capacity and reduce the number of ships needed to bring in the same amount of cargo, New Jersey groups believe that more containers will lead to more trucks carting more goods to their final destinations. Lawsuits are ongoing, but Port Authority Executive Director Patrick Foye seems fed up with it all. “We’re not proposing to build a nuclear plant on a pristine mountain lake,” he said to The Times. “We’re not building a bridge, we’re not knocking a bridge down, we don’t think there’ll be any increase in vehicular traffic. The environmental impact is more energy-efficient ships. They will emit less schmutz per container and per pair of Nikes.”

So what’s the solution? On the one hand, the review process is important in that it requires agencies to set forth detailed descriptions of their plans, and it forces government entities to involve the community to a certain degree in planning. But it’s an absurd process that needs to be streamlined and overhauled. The Bayonne Bridge and Second Ave. Subway are just two in a long list of voluminous environmental reviews that drive up costs and slow down construction. If enough agency heads sound off, as Foye did, maybe things can begin to change.

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Walt Gekko January 3, 2014 - 1:05 am

This is yet another case of too many people, in some cases so focused on how it affects THEM that they don’t look at the greater good going bonkers. These need to be streamlined so time and costs don’t keep going up. The laws put in place likely never could have accounted for fanatics and others who are self-serving who sometime slow things up for their own personal gain.

John-2 January 3, 2014 - 1:33 am

So what’s the solution? On the one hand, the review process is important in that it requires agencies to set forth detailed descriptions of their plans, and it forces government entities to involve the community to a certain degree in planning. But it’s an absurd process that needs to be streamlined and overhauled.

We’ve come a long way from the days of Robert Moses, where the planner was able to work around and bull through the laws because he pretty much had either written the laws himself at the state level or wrote the template for the laws used at the federal level. Government then spent the past half century basically writing laws to protect citizens from Robert Moses, with the result being almost all projects end up in NIMBY- or BANANA-land, to where you just about need to dig Moses out of his grave and reanimate the guy to have any hope of getting anything done on time or on budget.

The sad part is when you have enough people in the bureaucratic food chain who are more dedicated to enforcing their personal regulatory territory than they were with actually getting something done, you’re going to have thing like perpetual EIS requirements simply for project extensions in areas with little or no topographic or subterranean changes or hyper-micromanagement of requirements that could easily be relaxed a bit because of the nature of the project (if raising the Bayonne takes this much work, lord knows what it’s going to take to get the replacement span of the Goethals, on a wider footprint, built).

Roxie January 3, 2014 - 7:09 am

Makes me wish we had a Moses-like figure who was as ardent about expanding public transportation beyond token bus expansion efforts as Moses was about tearing apart whole neighborhoods to establish new highways.

Walt Gekko January 3, 2014 - 7:41 am

Absolutely Roxie:

We need someone who has the same kind of pull as Robert Moses, but on a TRANSIT level. Then perhaps we can have the kind of mass transit over time that New York needs.

I think if the planners could have seen 75 years into the future back in the 1930’s and ’40s, they might not have necessarily torn down, but instead rebuilt the ELs over time to enhance the subways.

BruceNY January 3, 2014 - 12:24 pm

They tore down the Els (in Manhattan) because they were able to replace two of them with subway lines (9th-8th Ave. and 6th Ave.), and let us not forget the whole point of tearing down the 2nd & 3rd Avenue Els was because they would be replaced by a six-track trunk line under 2nd Avenue. Oh, well–so much for that plan.

Eric January 5, 2014 - 6:09 am

Six tracks??? Where in the Bronx would they all connect to?

I know people are complaining that the SAS only has 2 rather than 4 tracks. But if those extra 2 tracks become necessary, the N/Q/R can be extended along Fifth Avenue. Tail tracks already exist from the N/Q/R into Central Park (intended for the 63rd St tunnel, but there doesn’t seem to be an immediate need for that connection).

JMB January 5, 2014 - 1:25 pm

Those tail tracks (the express tracks at 57th) will be what connects the Q to the 2nd avenue line via 63rd st. Are you suggesting there are additional bellmouths near 5th ave? The only bellmouths I knew about had the NQR veer west towards 8th ave.

Henry January 3, 2014 - 4:30 pm

Keep in mind that every el that was supposed to be torn down was supposed to be replaced by a subway (besides the Culver Shuttle). It just so happens that every time they tried to get the plans started up again, the economy took a nosedive (the Great Depression, materials shortages during WWII, inflation during the Korean War, the city’s fiscal crisis, etc.)

The els also had significantly larger structural issues and could only accommodate trains that were significantly shorter, so they weren’t particularly useful.

Finally, without the teardown, the development of the UES would’ve never happened. Real estate was instrumental in the teardowns of all the els, and only after the teardowns did the developers pour money into the area.

Bolwerk January 3, 2014 - 6:54 pm

Maybe the els should have been dumped, maybe not, but shorter, slighter trains are cheaper to build for and don’t exactly have the capacity constraints of buses.

Henry January 4, 2014 - 4:27 pm

The problem with the els that were torn down (Third and Myrtle in particular) is that they couldn’t handle normal subway cars; they had to have separate, lightweight trains. There was actually an order for them that was never made (the R38s were built to IRT dimensions, so they would only serve the lower half of Myrtle and its free transfer to what is now Jay/Metrotech). Having four fleets to worry about instead of three (IRT, 60 ft BMT Eastern, and 75 ft BMT/IND) would have been a pain, and at the time, the neighborhoods around them were not exactly thrilled about the conditions of the els in their neighborhoods (and money for the MTA didn’t materialize until the cancellation of Westway more than a decade after the last el was torn down.

Most of the els that were torn down were replaced (Lafayette/Myrtle with the (G), Ninth/Sixth with IND Phase I, Jamaica with Archer). The remaining sections were also supposed to be replaced (a spur of the (G) via the Myrtle ROW, Second/Third with the SAS) but the financial history of the MTA and city prevented those from being replaced.

Aaron Burger January 3, 2014 - 1:57 am

Reminds me of highway construction policies in Maryland, where they promise an accompanying bike path, then claim environmental concerns so they don’t have to build it.


Larry Littlefield January 3, 2014 - 8:33 am

The purpose of the Environmental Review process has devolved into serving the financial needs of the consultants who prepare them and the lawyers who sue based on them, both of whom have an interest in jacking up the requirements.

The review process also “grandfathers” in everything that exists, while demanding the “worst case” analysis of that which does not, and so privileges an auto-oriented transportation system. People sue to stop bike lanes, and hold them up for years.

Basically New York City has stood up to this sort of thing over the last few years, and got some kind of balance between NIMBYism and Mosesism. That, however, seems not to have affected the MTA.

Nathanael January 8, 2014 - 12:13 am

There’s really nothing wrong with reviews for things like compliance with the Migratory Bird Treaty — that’s what environmental review is for.

There’s also nothing wrong with the very fundamental complaint that raising the bridge will put more trucks on the road (and thus increase pollution) — you can argue that the bridge is worth it or not, but it’s a valid complaint.

What is a problem is stuff like doing a review of every building within two miles of the bridge *even though none of them will be demolished*. That stuff really has to be stopped.

For what it’s worth, it seems like EPA review — which encompasses the vast majority of legitimate environmental review — is a relatively simple and streamlined step.

It’s all the stuff about the “human environment” which has created
paperwork hell.

D in Bushwick January 3, 2014 - 10:56 am

Bureaucracy, despite initial good intentions, employs a lot of people. It employs government workers, union workers, lawyers and an army of “experts” who all get a piece of the Big Pie.
Add in the inevitable NIMBY who only cares about their own interests and you end up with years and years of legal challenges while adding multiple billions to the project cost and here we are.
Nothing will change because those directly involved do not want to change a “good” thing.
America used to get things done…

Michael January 3, 2014 - 12:01 pm

A few simple sayings:

a) It always depends upon whose ox is gored!
b) Yes, it is good to be the king!
c) Nobody likes a meanie!
d) Let No Good Deed Go Unpunished!
e) Remember When Environmental Reviews Were Good Government?
f) You have to crack an egg to make an omelet – Robert Moses.
g) Remember that the critics have never built anything – Robert Moses.
h) I Shot The Sheriff, But I Did Not Shoot The Deputy!
i) Remember that there will always be a critic who will say that the project could have been done quicker, cheaper and better!
j) And there will always be another critic who question why the project was done in the first place!
k) Plenty of religious people and plenty of environmental folk believe in man’s eventual destruction – they really just question the means – Armageddon or Global Warming.
l) Since they want to just RAISE the Bridge, folks will complain that about the lack of improvements for mass transit or bike lanes.
m) Maybe they will find Jimmy Hoffa?
n) They never make video games about actually building anything!
o) Remember when environmental reviews were supposed to be used for when the folks really did not WANT something to be built?
p) It was foretold in Ghostbusters – The dead rising from the grave! Human sacrifice, dogs and cats living together, transit fans supporting the building of more roads … mass hysteria!


RailPhilly January 3, 2014 - 12:50 pm

The worst cases of this are ridiculous. Transit agencies still need to perform years of multi-million dollar impact studies to put passenger trains on existing freight tracks that still have boarded up station buildings alongside. I could do that study for gas money and 10 bucks for lunch: “Yup, the century old right of way still has tracks on it, lets do this.”

The problem is that this banana republic is so anti-rail that people build houses next to railroad tracks, and then are shocked that a train might run on it. Worse still is when they’ve encroached on ROW, and use that intrusion as ammo to prevent restoration.

Tsuyoshi January 3, 2014 - 1:15 pm

I am not entirely convinced that the environmental review process is so bad. Despite the slant of the article, this quote gives it away:

“It assumes a more efficient port will cause people to buy more sneakers and iPads,” Mr. Foye said dismissively.

On its face, yes, a more efficient port will cause people to buy more goods. Either the price of delivering those goods through the port itself will go down, or at the very least if it is more efficient, the time needed (and thus the financing cost) will go down. And if the cost goes down, volume (and therefore truck traffic) will go up, one way or another.

The only argument I think you can make here is, higher truck traffic would be better mitigated with higher tolls on the roads connecting to the port, or perhaps higher fees for ships unloading at the port, rather than preventing the raising of the bridge.

Nyland8 January 3, 2014 - 6:21 pm

It isn’t ” … the price of delivering those goods through the port” that is the issue. Due to the widening of the Panama Canal, much larger ships will be abel to get from the Pacific Ocean manufacturers to our Eastern and Gulf shores. So major harbor infrastructure work – raising bridges, dredging around piers, building new container handling facilities, etc – will become necessary just to remain viable.

Without extensive harbor improvements, in a few decades the ports of Elizabeth, Newark and Brooklyn will simply not be able to handle any of the incoming ships. So those ships will have to go elsewhere, the jobs will go elsewhere, the ports will close and become a barren graveyard of corroding steel infrastructure, etc. It is the future competitiveness of the harbor itself that is at stake.

The aging fleet of smaller tankers and freighters will very quickly become mothballed, because it is so much less expensive to transport goods on larger container ships.

One possible way to bypass the politics and red tape would be to enact legislation that allowed for putting vital infrastructure improvements on a referendum, empowering the people of the States – New York and New Jersey – to vote on whether or not bureaucratic nonsense should be permitted to impede the progress, or inflate the costs, of said projects. Then, assuming a proper campaign by saner minds gets the message out, the electorate could vote to streamline those laws for the sake of the greater good.

And, in theory, the same thing could be enacted to deal with the NIMBYs that quash every mass-transit project in the public’s best interest.

Nathanael January 8, 2014 - 12:15 am

The Port of Brooklyn can already accept these large, deep-draft ships. The problem is that they have nowhere to go from Brooklyn because there’s no real freight rail service in Brooklyn.

The Port Authority of New York and New Jersey was charged with building a rail tunnel to address this problem approximately a hundred years ago, but hasn’t gotten around to it yet…

Rob January 3, 2014 - 1:39 pm

yes, a real issue.

and the tappan zee bridge?

Andre L. January 5, 2014 - 10:55 am

It went through all the requirements of EIS.

lawhawk January 3, 2014 - 2:03 pm

Projects that replace existing structures within the same footprint shouldn’t be subjected to the same environmental review process as those that require a new or different footprint.

The Bayonne Bridge is using the same exact footprint, so it makes sense to not require environmental review that is little changed from a completely new project.

It does make some sense to have a more comprehensive review when you’re changing the ROW, as in the case of the TZB project or the Goethals replacement (both call for spans adjacent to the existing ones, not replacing them entirely within the ROW).

Meanwhile, I just read that the Panama Canal expansion may be held up over money. The project is being financed by several European banks, and they’re complaining about overruns in the cost. It’ll get done, but it may delay the project completion.

Raffi January 4, 2014 - 2:13 pm

Yes, this is excellent. All I would add is that if you read the Times article on it, the reason the Bayonne Bridge is subjected to such extreme (federal) scrutiny is because it is over a navigable waterway. It’s not justified in this case but it’s also not the same issue as the SAS.

johndmuller January 3, 2014 - 7:26 pm

Dodging a lot of the red tape is presumably why Cuomo was all over the opportunity to get the new Tappan Zee done on the fast track.

Too bad he didn’t ram a railway on the bridge down our throats while he was at it.

Somehow, I suspect that in the unlikely event that someone actually wants to use the supposed provisions for incorporating a railway into the bridge structure(s) before someone else coopts that provision into HOT lanes or other extra roadway, then the environmental review will kick in to slow down the rail aspects.

At the point in time when the fast track deal was being done, rail was dropped supposedly due to the costs being so ridiculously high that auto tolls would have to like triple to something around $15 to cover them. Given the numbers they are talking about already (without rail on the order of $10) plus the way they are jacking up the GWB tolls and planning to continue doing so, it wouldn’t surprise me if they end up with the $15 anyway, but no rail to show for it.

Duke January 3, 2014 - 8:22 pm

I’d simply raise the threshold necessary to file a lawsuit. Cases that find a truly egregious omission or oversight in the environmental review can move forward. Cases that are suing over minutia simply to be obstructionist and block the project ought to be thrown out.

That said, I get the sense that often extended environmental review is actually a disguise for the real reason a project is delayed, namely lack of funding. Once a permit is issued you have to start construction within a fairly short amount of time afterwards or it becomes invalid and you have to revise it. So if the state doesn’t have the funding in place to start constriction, it can work in their favor to allow environmental review to drag on while they find the money, and then when the litigation wraps up, they’re ready to go. This also conveniently allows the politicians involved to shift blame for the delays away from themselves and onto whatever organization of busybodies is suing because there might be a family of box turtles downstream from the bridge.

Nathanael January 8, 2014 - 12:18 am

” Fifty Indian tribes from as far away as Oklahoma were invited to weigh in on whether the project impinged on native ground that touches the steel-arch bridge’s foundation.”

This is going to continue being a problem as long as governments continue to squat on stolen native land without payment.

If our governments bothered to settle the land claims — which would require actually paying out damages for the 200 years of illegal seizures, but only once — then this would become much simpler.

The relevant native tribe is government for the native land, so you have to ask their permission.


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