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ESDC "carefully considered" post-FEIS comments, but won't release them (or responses)

Though the Empire State Development Corporation (ESDC) invited public comment on the Atlantic Yards Final Environmental Impact Statement (FEIS), it won't immediately make public those nine letters nor the agency's responses, which essentially dismissed the concerns expressed.

Rather, in a contradiction of ESDC Chairman Charles Gargano's comments on Friday, the agency directed me to file a Freedom of Information Law (FOIL) request, which would delay the process until after Public Authorities Control Board (PACB) vote scheduled for December 20. Gargano, when asked at a press conference whether the agency could supply the documents to me, had said "of course."

By contrast, the ESDC in the FEIS made public a huge volume of comments and responses. Commented attorney Jeff Baker, who represents Develop Don't Destroy Brooklyn (DDDB) and is a veteran of state environmental reviews, "Of course they should be public. There is no legal requirement for formal publication of the comments and responses, like the comments on the Draft EIS published in the FEIS. However, they are public records and must be made public."

"If Gargano is proclaiming transparency, and if the PACB is going to properly review the project, that information should be made public," he added.

Atlantic Yards is on the agenda for the December 20 meeting of the PACB, the final level of state review. The votes are controlled by Gov. George Pataki, Senate Majority Leader Joseph Bruno, and Assembly Speaker Sheldon Silver, the only Democrat. While there's pressure on Silver to stall the project until the administration of incoming Governor Eliot Spitzer, a fellow Democrat, Pataki is reported to be offering legislators some carrots, such as a long-awaited pay raise, if they embrace several initiatives, including Atlantic Yards.

What's missing

Without the documents requested, we still don't know the ESDC's response, for example, to issues raised by DDDB's Baker about response times for emergency vehicles, the ESDC's unwillingness to consider the threat of terrorism, and the agency's highly questionable blight report.

A response to a FOIL request, much less the delivery of documents, can take weeks. So it's highly unlikely that the ESDC would produce the documents requested before December 20.

A slim opportunity

The opportunity for further comments on the Atlantic Yards project came up on November 27, when Gargano told reporters that the ESDC would continue to accept comments during the ten-day period before the board was to vote.

"If we get any substantive comments, we will take them into account," said general counsel Anita Laremont, who said the ESDC was not required to respond to them in writing.

Such an opportunity for additional comments was not specified in the FEIS. The State Environmental Quality Review Act does not spell it out:
Prior to the lead agency's decision on an action that has been the subject of a final EIS, it shall afford agencies and the public a reasonable time period (not less than 10 calendar days) in which to consider the final EIS before issuing its written findings statement. If a project modification or change of circumstance related to the project requires a lead or involved agency to substantively modify its decision, findings may be amended and filed in accordance with subdivision 617.12(b) of this Part.

Board approval

When the ESDC board met last Friday to approve the Atlantic Yards project, Rachel Shatz, the agency's director of planning and environmental review, read from a statement: "We received a total of nine letters. Staff, with our consultants, carefully considered all the comments and determined that no new issues have been raised and there is no need for any additional analysis in light of the information and conclusions in the FEIS. And the directors have all received copies of these letters."

Copies available?

In the post-meeting press conference, I followed up.

Q: The responses to the questions that came in in the last ten days, were those responded to in writing or not?

Charles Gargano: They were responded to in writing. We have found--I think there were nine?

Rachel Shatz: Nine letters that came in.

CG: Nine letters. And they have been responded to.

RS: Internally.

Q: Can I get a look at that?

RS: We'll review... [The rest of her statement is inaudible on my tape.]

CG: He wants copies of the--of course.

Of course not.

On Tuesday, ESDC spokeswoman Jessica Copen told me via email that I'd have to file a FOIL request. The agency indeed does have the option to require such a request. But Gargano's response certainly indicated cooperation and transparency.

Or did he, as on the Brian Lehrer Show a week ago, misspeak?

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