Since 1975, when New York State enacted the requirement that government agencies study the potential significant environmental impacts of land use projects, environmental studies have evolved from 20-page documents prepared by City employees into several thousand-page documents written by experts at a cost of millions. Attorney David Paget, who for more than 20 years has advised clients like the Empire State Development Corporation and Related Companies on environmental review compliance, talked to CityLand about his experience with the mounting complexities of the review process through his work on projects like Hudson Yards, Hunts Point Terminal Market, Brooklyn’s Atlantic Yards and Yankee Stadium.
the Lillian Wald housing project located on East 4th Street and Avenue D. When he started at City College, he became the first member of his family to gain a higher education. After City College and New York University Law School, Paget went to Kaye Scholer and then the U.S. Attorney’s Office for the Southern District. In 1973, he joined David Sive, a pioneering environmental lawyer, to relieve Sive of his commercial litigation caseload. Gradually, he started working on environmental analyses of development projects. The Jacob K. Javits Convention Center, Paget’s first major project, came at a time when the City was emerging from an economic crisis and, for Paget, it led to over 20 years of work on the city’s major development projects. He fell into the career “utterly by accident,” noting ironically that growing up in City public housing gave him no concept of the development occurring around him.
The Main Event. Paget sees environmental impact statements as “the focal point of all major projects.” Litigation has led to the longer and more complex impact statements. He mentioned that Hudson Yards’ FEIS finished at over 8,000 pages and cost $16 million. Although Paget sees Hudson Yards as an exception and estimates the average FEIS cost at $600,000 to one million, he says that the exceeding complexity of environmental studies have made the environmental review process the crucible of everyone’s concern and the avenue where opposition is played out. It trumps the ULURP process and is now the dominant factor. Paget sees this as consistent with the intent of the environmental review law. But requiring a response to each comment raised creates enormous tension over what is truly due rigorous analysis and what must be responded to under the law. The threat of litigation forces the outcome: it is better to have addressed the issue in the administrative record than to have summarily dismissed it.
Paget rejects suggestions for legislating a limit on the length of documents, saying it would never work in the current litigation system. A preferable approach would be to limit court challenges to relevant issues. It is common now for a project opponent to complain about every error or omission, “no matter how ill founded.” He thinks this is done to slow the process, but by the same token it forces developers to produce longer and more arcane impact statements, which in turn leads to frustration on both sides.
Utility Despite Frustration. “Frustration inheres in the exercise,” Paget explains. Developers are frustrated because they need to spend millions on EIS consulting firms and legal fees. Project opponents are frustrated because, it is hard to comment on complicated EISs, “especially for people that don’t have access to experts.” Nevertheless, Paget believes the process works. It gives full expression to competing views and results in project changes. Paget says that no project is “fixed and immutable” and cites the recent federal decision on Yankee Stadium as support. The decision specifically noted that the project changed in response to community views raised throughout the EIS process.
Ultimately Political. Paget says that his practice requires much more than a detailed understanding of the law. He sees the work as “ultimately political.” To be successful he must be sensitive to community interests, compromises, and points of vulnerability. “It is critical to think about the public relations aspect of a project,” Paget says. If the community does not support a project, it can die before it ever gets off the ground. He says that there is no alternative but to attend every public meeting on your client’s project, stressing that “you need to see and hear who is commenting, and what they have to say.” He added that when you go through the process in a robust way, it is rare that the final decision will be disrupted. – Morgan Kunz/Molly Brennan