Sunday, October 09, 2011

Somehow, AKRF-like conflict shouldn't past muster in federal environmental review process

Remember how it was just fine for the ubiquitous environmental consultant AKRF to have worked for Atlantic Yards developer Forest City Ratner before the Empire State Development Corporation (ESDC) hired it to do the Atlantic Yards environmental review? (That review, for example, underestimated the impacts of construction noise on surrounding residents.)

Remember how it was also kosher for AKRF to have worked for Columbia University simultaneously while working for the ESDC?

In both cases, the New York State Court of Appeals, upholding eminent domain, thought nothing of the seeming conflict.

A federal case

Yesterday, in a through-the-looking-glass article headlined Pipeline Review Is Faced With Question of Conflict, the New York Times tells us that that kind of conflict might be bad--at least in federal cases:
The State Department assigned an important environmental impact study of the proposed Keystone XL pipeline to a company with financial ties to the pipeline operator, flouting the intent of a federal law meant to ensure an impartial environmental analysis of major projects.

The department allowed TransCanada, the company seeking permission to build the 1,700-mile pipeline from the oil sands of northern Alberta to the Gulf Coast in Texas, to solicit and screen bids for the environmental study. At TransCanada’s recommendation, the department hired Cardno Entrix, an environmental contractor based in Houston, even though it had previously worked on projects with TransCanada and describes the pipeline company as a “major client” in its marketing materials.

While it is common for federal agencies to farm out environmental impact studies, legal experts said they were surprised the State Department was not more circumspect about the potential for real and perceived conflicts of interest on such a large and controversial project.

John D. Echeverria, an expert on environmental law, referred to the process as “outsourcing government responsibility.”

The subsequent study, released at the end of August, found that the massive pipeline would have “limited adverse environmental impacts” if operated according to regulations. That positive assessment removed one of the last hurdles for approval of the proposed pipeline.
"Outsourcing government responsibility" is par for the course in New York, though I don't see AKRF trumpeting its clients.

What the law says

According to the article:
The National Environmental Policy Act, which took effect in 1970, allows for agencies to hire outside contractors to perform its required environmental impact studies, but advises that contractors be chosen “solely by the lead agency” and should “execute a disclosure statement” specifying that they “have no financial or other interest in the outcome of the project.”

And yet legal experts said it had become common for companies applying to build government projects to be involved in assigning and paying for the impact analysis. Some say such arrangements are nearly inevitable because federal agencies typically lack the in-house resources or money to conduct these complex studies. “What’s normal is deplorable, and it’s NEPA’s dirty little secret,” said Mr. Echeverria, acting director of the Environmental Law Center at Vermont Law School, referring to the law. He said federal agencies are supposed to review the findings, but often lack the expertise to do so.
It's even more common in New York.

The role of the courts

The article concludes:
Legal experts said it is not unusual for subcontractors to conduct hearings and prepare responses to complaints. But they also said the State Department should closely monitor the work to make sure that any concerns raised are taken seriously. James W. Spensley, a Colorado-based environmental lawyer with broad experience in government pointed out that the courts provided an import check on abuse, since shoddy or biased studies are vulnerable to legal challenges.

“Generally,” he said, “lead agencies are very cautious about finding someone who is going to give them good, reliable, information because they are the ones that are going to get sued.”
AKRF aims to write reports that are lawsuit-proof and most of the time succeeds. That doesn't mean they're consistently credible. Remember AKRF's crime analysis, part of a bogus Blight Study?

Some eerie AY parallels

Read Margot Kidder's How to Grease a Pipeline, in CounterPunch, for more eerie parallels with the Atlantic Yards hearing process, including pro-project union members with t-shirts and food, all speaking first.

With Atlantic Yards, those running the main public hearing in August 2006 at least tried to alternate speakers pro and con, they just couldn't keep speakers--most notably the Rev. Herbert Daughtry and his wife Karen Smith Daughtry--from respecting the time limit. And, while Kidder spotted money changing hands, no one reported that in Brooklyn--though I wouldn't be surprised if it had.

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