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Fighting Westway

Fighting Westway: Environmental Law, Citizen Activism, and the Regulatory War That Transformed New York City

William W. Buzbee
Copyright Date: 2014
Published by: Cornell University Press
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  • Book Info
    Fighting Westway
    Book Description:

    From 1971 to 1985, battles raged over Westway, a multibillion-dollar highway, development, and park project slated for placement in New York City. It would have projected far into the Hudson River, including massive new landfill extending several miles along Manhattan's Lower West Side. The most expensive highway project ever proposed, Westway also provoked one of the highest stakes legal battles of its day. In Fighting Westway, William W. Buzbee reveals how environmentalists, citizens, their lawyers, and a growing opposition coalition, despite enormous resource disparities, were able to defeat this project supported by presidents, senators, governors, and mayors, much of the business community, and most unions. Although Westway's defeat has been derided as lacking justification, Westway's critics raised substantial and ultimately decisive objections. They questioned claimed project benefits and advocated trading federal Westway dollars for mass transit improvements. They also exposed illegally disregarded environmental risks, especially to increasingly scarce East Coast young striped bass often found in extraordinarily high numbers right where Westway was to be built.

    Drawing on archival records and interviews, Buzbee goes beyond the veneer of government actions and court rulings to illuminate the stakes, political pressures, and strategic moves and countermoves that shaped the Westway war, a fight involving all levels and branches of government, scientific conflict, strategic citizen action, and hearings, trials, and appeals in federal court. This Westway history illuminates how high-stakes regulatory battles are fought, the strategies and power of America's environmental laws, ways urban priorities are contested, the clout of savvy citizen activists and effective lawyers, and how separation of powers and federalism frameworks structure legal and political conflict. Whether readers seek an exciting tale of environmental, political, and legal conflict, to learn what really happened during these battles that transformed New York City, or to understand how modern legal frameworks shape high stakes regulatory wars, Fighting Westway will provide a good read.

    eISBN: 978-0-8014-7030-1
    Subjects: Law, History, Political Science

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. List of Figures
    (pp. ix-x)
  4. List of Acronyms
    (pp. xi-xii)
  5. WESTWAY CHRONOLOGY, 1971–1985
    (pp. xiii-xx)
    (pp. 1-6)

    From 1971 to 1985, battles raged over Westway, a 4.2-mile, multibillion-dollar highway, development, and park project proposed for placement in the Hudson River, in New York City. This project was, on a per-mile basis, the most expensive highway ever proposed. Federal interstate funding would have flowed into a financially struggling New York City. By utilizing new landfill in the Hudson, extending at times almost a thousand feet out, Westway would have destroyed dozens of piers and the waters between them. It also, however, would have created new land for development, made many adjacent properties skyrocket in value, and created space...

    (pp. 7-20)

    Westway’s inception can be traced to two key events, one local and one federal. When, in the early 1970s, large chunks of the elevated West Side Highway (also known as the Miller Highway) started falling, including an infamous much-photographed 1973 collapse that deposited a truck on the surface road below, a transportation fix was inevitable. Planners and city officials quickly began to look at ways to link highway replacement with major development plans. The other key event happened years earlier.

    The federal government in the post–New Deal era, especially during the presidency of Dwight Eisenhower, became centrally involved in...

    (pp. 21-30)

    Early optimism about general approval of Westway quickly proved baseless. New York City’s fiscal crisis weighed in favor of accepting any federal handouts, especially if the city could count on a blank check for all costs to completion, but part and parcel of that crisis and a degraded quality of city life were mass transit woes. Crime, graffiti, and poor track and subway car conditions had turned New York City’s once renowned subway system into a source of anxiety and frustration. Billions of dollars were needed to begin to rectify these problems. An expensive highway project like Westway stood in...

    (pp. 31-51)

    The westway battles added up to a hard-fought fourteen-year-long regulatory war. In the mid-1970s it was just getting under way. Regulatory wars like Westway differ from wars involving soldiers, weapons, and physical destruction, but they nonetheless involve a recognizable form of war, with distinctive adversaries, legal resources akin to artillery, strategies, and sources of power. 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...

    (pp. 52-63)

    Political economic theory predicts that concentrated interests with high financial stakes in a disputed matter will tend to out-compete more dispersed interests lacking strong financial personal incentives.¹ This will likely often be the case, but at least in the Westway battles, monetary interests and the existence of a person or entity with comprehensive knowledge did not go together. The construction companies, unions, agency officials, lawyers, banks, and real estate interests that supported Westway had monetary interests at stake that were both individually large and in the aggregate even larger. Opponents had nowhere near supporters’ monetary resources. They also generally lacked...

    (pp. 64-77)

    From the time of their preliminary designs in the early 1970s, Westway’s planners were fearful of bureaucratic foot-dragging and inertia. They hoped to avoid a lengthy regulatory war. Although they shunned the heavy-handed strategies and road-dominated focus of Robert Moses, they also sought to streamline and coordinate their actions and reviews. Early commentators actually praised Westway project director Bridwell’s openness to public input and his “commitment to community participation and interaction.”¹ But as the opposition’s motivations and concerns crystallized, most of the 1970s hearings only served to highlight Westway’s fundamental dividing lines—support or opposition, highway, development, and park versus...

    (pp. 78-83)

    During 1978 to 1980, while the Clean Air Act challenge was under way, Westway partisans scrutinized other regulatory requirements, especially those related to water impacts. The main two requirements were imposed by the analytical mandates of the National Environmental Policy Act and the Clean Water Act’s provisions broadly prohibiting discharge of fill in waters of the United States, including the Hudson River.

    The Army Corps of Engineers and the Federal Highway Administration, the agency that was the crucial conduit for federal highway funding, had to comply with NEPA and analyze impacts associated with Westway. The Corps was legally responsible for...

    (pp. 84-97)

    Westway’s champions decided to go for it all. They repeatedly claimed in key public documents that Westway’s mix of highway, park, and redevelopment goals required it to be in the river. They also asserted that it posed no risk to Hudson River aquatic habitat, mainly because the habitat was a “biological wasteland.”

    The 1974 Draft EIS was the first essential public environmental document about Westway that touched on fishery impacts. The Draft started the multistep process of disclosure and analysis required by NEPA. A draft is not some unimportant or unofficial document; it is the responsible agency’s official data rather...

    (pp. 98-114)

    The process of regulatory politics and decision making is not insulated but porous. Information can flow freely and informally, and government officials do not control outcomes; citizens have participatory and litigation rights, and courts end up reviewing most major regulatory actions. While the more formal written regulatory position taking had occurred regarding Westway aquatic impacts, far more informal communications continued among government regulators and between regulators and citizens. The internal federal battles had gone on for several years, with Benstock and other opponents of Westway monitoring the process as best they could.

    Opponents’ focus on fishery impacts increased during early...

    (pp. 115-122)

    The scathingly critical judicial rulings triggered hand-wringing and calls for federal and state investigations. Was Judge Griesa justified in his conclusions, or was he a trial judge who had misused his authority? A frequent claim was that he had rejected Westway due merely to what then New York governor Hugh Carey liked to call a procedural irregularity. Had the judge used his largely unreviewable power to control the courtroom and find facts to further some previously hidden anti-Westway animus? The Westway project was motivated by political benefits but had now caused a political black eye. Supporters hoped new investigations would...

    (pp. 123-153)

    While political investigations into the earlier Westway debacles proceeded, the Westway battles returned to political and agency settings. Westway’s proponents had won the air permit battles, but little else was resolved. The trade-in option remained a source of public and press debate. Supporters and opponents continued to dispute whether Westway was publicly beneficial, a boondoggle, or driven by the private benefits it would generate. But the judicial rejections of essential regulatory analysis and approvals had made clear that Westway’s Section 404 permit and striped bass risks were a make-or-break issue for the project. The Second Circuit Court of Appeals had...

    (pp. 154-173)

    After a short-lived expectation that the Army Corps was going to kill Westway, opponents again found themselves regulatory losers. Despite ongoing objections of the various federal natural resource and environmental agencies, they had folded their cards well before playing their objections up the executive branch ladder. EPA too had disappointed, failing even to seek comments on whether to exercise its Section 404(c) veto power. The new Final SEIS reflected mystifying and so far unexplained changes from the dramatically different Draft’s language. Despite the abundant data showing substantial usage of the proposed Westway site by young striped bass, often the highest...

    (pp. 174-191)

    Lawyers can wait their whole lives for a moment where their skills can make or break a case. Far more rare are multibillion-dollar cases involving all levels of government and the future shape of the world’s leading city. Bernard’s cross-examination of Dovel had become the critical moment for Westway. Despite the ongoing political opposition advocacy by Benstock and many others, as well as increasing scrutiny and criticism in news columns in New York City and other national papers, New York City and State remained firm in their support for Westway. Congressional action guaranteeing or killing the project appeared unlikely, although...

    (pp. 192-214)

    Westway still had its legal approvals, but in mid-July of 1985 it faced several pressing threats. Westway’s partisans awaited judicial rulings from Judge Griesa and faced the trade-in deadline of September 30, 1985. If they fought too long over Westway, they all could lose, jeopardizing a trade of close to two billion Westway dollars for mass transit improvements and a more modest road. Congress could still intervene and give Westway more time or exempt the project from ordinary prohibitions, but instead a growing congressional coalition advocated banning federal funding of the Westway landfill. New Jersey legislators were active in these...

    (pp. 215-243)

    A late 1985new yorkercartoon shows an eager young man at a bar, addressing a woman to his left: “I beg your pardon. Would you care to either celebrate or mourn the demise of Westway with me?”¹ FamedNew York Timescolumnist Russell Baker likened Westway’s defeat to one of those “Frank Capra fables . . . in which innocent small-town boys with a civics book faith in democracy challenged the big shots and won.”² And those big shots “had big money, heavy political muscle and immense lobbying know-how.” Governor Cuomo’s take was not far different: “They just stopped...

  21. EPILOGUE: If Westway Were Proposed Today?
    (pp. 244-252)

    Would a modern Westway-like project today suffer the same fate? In a literal sense, no. Most important, the particular federal interstate highway funding regime that made Westway so attractive to New York City is mostly gone. Westway as a proposal existed only because it would bring billions of federal highway dollars into the city and state. And the trade-in option that motivated many Westway opponents was replaced with federal laws providing local governments with somewhat increased ability to choose between highways and mass transit. A mega-interstate highway project could not today be designed in a gold-plated fashion, then be traded...

    (pp. 253-256)
  23. NOTES
    (pp. 257-278)
  24. INDEX
    (pp. 279-292)