Fighting Westway: One Lawyer’s Epic History of a “Regulatory War”

Even with it so far gone, it's still hard to say what Westway's lessons are.

I’ve finally had a chance to read Bill Buzbee’s Fighting Westway: Environmental Law, Citizen Activism, and the Regulatory War that Transformed New York City (Cornell 2014).  What a terrific read!  fighting westway coverIt is both a painstaking recounting of an epic saga in lower Manhattan’s past and a scholar’s very sharp take on how so many things aligned just so against a massive public works project.  NEPA played a key role, as I’ll explain, but other legal and political hurdles loomed larger.  Ultimately, it was Westway’s price tag that did it in.  And that is one lesson NEPA practitioners cannot learn often enough.

For those not familiar, “Westway” was a mammoth, Big-Dig-like road project planned in the late 1960s and early 1970s as a way of “re-developing” lower Manhattan’s west side.  {See Wikipedia’s entry here.}  The plan was to demolish a decrepit elevated highway already there (separating that part of the city from its waterfront) and to push Manhattan’s western shore line out, filling in a lot of the Hudson River in the process to create new urban space—under which would run the new highway, through a 4.2 mile tunnel.  So, as Bill describes it, it was really more like “development” than “re-development.”

By 1983, when the case got to the Court of Appeals, the war had mostly been fought and the project proponents had all but lost.  When the Second Circuit’s opinion was published affirming the district court’s careful demolition of the underlying environmental impact statement (among other things), all that was left to do was give Westway last rites.

By Bill’s retelling, the Westway saga was a hybrid of legal and political struggles—a “regulatory war”—which demanded skills in multiple arenas.  Here’s how he describes it:

Regulatory wars occur in the middle ground between the realm of politics and judicial legal venues.  In the political realm, power reigns supreme, and democratically accountable institutions generate laws.  In judicial legal venues, statutes, regulations, and perhaps case law precedents constrain legal actors and limit the range of outcomes.  In regulatory wars, the government is always a player, with citizens, not-for-profits, and business interests competing to influence a political choice that is itself shaped and constrained by the law.

Fighting Westway at 30.

Such a Bad Idea?

The intriguing thing about Westway is its uncertain place on the spectrum of public works projects vs. the environment.  Was it a boondoggle?  Was it typical NYC NIMBY-ism?  Was it an environmental law monument?  A buried highway, after all, was going to mean easier access to the shores of the Hudson, new parkland, and a revitalized waterfront (filled with people who would view the river as an amenity).  The fight that sunk Robert Moses’ Lower Manhattan Expressway (known as Lomex), for example, wasn’t nearly as complicated by ambiguity: it was going be a gigantic expressway crashing through Soho and other neighborhoods.  Jane Jacobs’ crusade against it was easy.

In the Westway war, both its planners and citizen opponents saw themselves not as descendants of Robert Moses but as motivated by environmental goals and a desire to improve the city with a park and river access.  Richard Kahan, counsel to the Westway project, said that “[e]verybody on th[e Westway] team hated highways.”

Fighting Westway at 44.

The New York Times, Ed Koch, Governor (Mario) Cuomo, President Reagan and many others formed a diverse coalition of Westway supporters at its apex.  But Westway also attracted a bootleggers-and-baptists coalition of opponents.  It would be really expensive.  It would take a long time to build, meaning costs could only rise.  It would mean filling a lot of river bottom, potentially disrupting the whole lower Hudson River ecosystem.  The longer it was pending, the more reasons people found to be against Westway.  Perhaps most interestingly of all, for all the time the war raged, it never really was clarified who would be doing all the developing, what they were going to build, how tall it would be, etc.  Funny how such big parts of the case for projects can be left unspecified for so long.

NEPA’s Role: Questionable Judicial Relief As a ‘Regulatory War’ Rages?

The dredge and fill operation necessitated a Clean Water Act § 404 permit which provided the “federal handle” NEPA needed.  Along with the public interest review Section 404 requires when the Corps issues that permit, NEPA required that the environmental impacts be weighed and that reasonable alternatives and their impacts also be weighed.  Preparing these analyses was a saga unto itself.  As chapters 6, 7, 8, and 9 ably recount, everyone involved knew these analyses would be crucial in both the political and legal realms.  And there was strategic action aplenty.  See Sierra Club v. U.S. Army Corps of Eng’rs., 701 F.2d 1011 (1983).

The big deal in NEPA terms was the district court’s eventual finding that, contrary to the proponents’ characterization of the portion of the Hudson they aimed to fill as a “biological wasteland,” it was actually good wintering habitat for striped bass.  Stripers were not only a commercially important species.  They were practically NYC’s patron fish and doing badly in those days.

Westway’s opponents also had very good lawyers.  Their contributions to the EIS were expertly played, as chapter 10 details.  Fact after fact was contested and the record of decision that ensued made the contestability of the facts manifest.  Indeed, for much of it, the opponents seemed to have the better of the facts—a rarity in NEPA routines.  Of particular interest is how Clean Water Act § 404 and the EIS worked in tandem against the project.  The 404 regulations required that if any “practicable alternative” to dredging/filling that will cause “significant degradation” of the water could be found, then the permit to fill shouldn’t be issued.  And the EIS discussed several options where the filling wasn’t needed.

Ultimately, fishy business with the findings about stripers provoked the district court to take extraordinary steps.  After a bench trial hashing out some of the factual questions himself—not being satisfied by the anemic administrative record compiled (itself an exceptional step)—Judge Thomas P. Griesa appointed a special master to oversee the agencies’ preparation of the supplemental EIS he ordered be done.  He also ordered that the Federal Highway Administration and the Corps keep certain records of their meetings and other doings.  The Second Circuit overturned that relief, although it agreed with Judge Griesa that the EIS did not “reasonably adequately compile relevant information with respect to fisheries impact.  The evidence as to the cavalier manner in which the Project had reached its conclusion that the [area to be filled] was a biological wasteland . . . easily supports the district court’s findings” that the EIS lacked any real basis in fact and that, as a result, the decision-maker could not have accurately balanced the environmental factors.  Sierra Club, 701 F.2d at 1031.

Judge Griesa also enjoined the project from any further activities until a proper EIS was prepared. (One of Buzbee’s themes throughout is the necessity in “regulatory wars” of using victories in one realm to best effect in the others. One thing all project proponents know to argue in court is that a project is already in construction, already under way, a fait accompli, etc.)  The injunction, in other words, might have eventually proven critical.  The Second Circuit upheld the injunction that no further land-disturbing work be done until a proper EIS was prepared.

Passive Virtues?

One irony of the project’s demise is that neither NEPA nor the Clean Water Act would’ve barred the project had the EIS just come out and predicted havoc for the stripers.  It would’ve made the optics of going forward that much less favorable, of course.  Yet both the district court and the Second Circuit played the ‘biological wasteland’ mistake up to maximum effect.  Here’s the appeals court:

This baseless and erroneous factual conclusion . . . became a false premise in the decisionmakers’ evaluations of the overall environmental impact of Westway and their balancing of the expected benefits of the proposed action against the risks of harm to the environment.

Sierra Club, 701 F.2d at 1034.  Both courts either really believed—or simply played up the ideal—that the EIS would inform the Westway ‘decision maker(s)’ and that there was at least a chance it would change their minds.  In the Second Circuit’s case, this was clearly important.  They vacated Judge Griesa’s special master and record-keeping requirements and spoke sternly against the availability of any equitable relief just because an EIS has a mistake or two (or several, as is so often the case).

Of course, they may be right.  These are NEPA’s ideals.  The resulting delay and public scrutiny and truly meager science the proponents scavenged together in response were, in some significant measure, caused by NEPA (albeit in tandem with Clean Water Act § 404).  Had it not been for these legal requirements, Westway might have been thrown up as fast as the Cross-Bronx Expressway.

Robert Moses' Worst?

Robert Moses’ Worst?

But they also might have been soft-pedaling another, perhaps deeper truth about NEPA and NEPA documents’ public lives.  No agency preparing an EIS welcomes the conclusion that the project will have significant environmental costs.  Indeed, they usually do everything they can to avoid saying so out loud.  And yet . . . so many projects do have significant environmental costs.

The end of the book details the legal proceedings and how the EIS fed the opponents’ arguments and strategies in the courts.  It is a good reminder of how critical public documents can become given the right users.

The Road Actually Taken: ‘Route 9’ and the West Side Today

The Westway project was deprived of its funds shortly after the Second Circuit ruled (that’d been handwriting on the wall for some time by then).  NYC and NY State eventually parlayed available federal funds into money for mass transit, a replacement roadbed (in a “boulevard” style Westside Highway), and Hudson River Park.  Indeed, the Federal Highway Administration maintains a bloodless “case study” page for those interested in how the “boulevard” option came to be.  It’s quite a contrast with Fighting Westway.  For in a relatively a slim volume, Professor Buzbee gives both an engaging history lesson and a very shrewd take on how environmental litigation came of age in America.

{Image: Looking south down the Westside Highway, 1974}

I teach environmental, natural resources, and administrative law at Penn State Law. Before teaching I was an enforcement lawyer at U.S. EPA. Along the way I've done work for environmental nonprofits and written a fair bit about NEPA.
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