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ESDC defends against appeal, says environmental review addresses AY's “merits”

Forget trying to disqualify our lawyer, says the Empire State Development Corporation (ESDC) in the latest round of legal jousting in the Atlantic Yards case. Instead, asserts the ESDC, opponents of the Atlantic Yards project should focus on the environmental review process, under the State Environmental Quality Review Act (SEQRA).

The only problem is that SEQRA doesn’t address many of the big questions relating to this project, and, as I wrote in my analysis of the previous volley filed by the attorney for the opponents, in some ways the game seems rigged.

Last week, ESDC lawyer Douglas Kraus filed a document opposing efforts by a coalition of groups in the case involving the disqualification of ESDC attorney David Paget.

After Paget, who had previously represented Forest City Ratner on the Atlantic Yards project, was disqualified by State Supreme Court Justice Carol Edmead in February, citing a "severe, crippling appearance of impropriety," that decision was reversed by the Appellate Division in May.

In arguing that the Court of Appeals (the state's highest court) should not take the case, Kraus argues that the Appellate Division’s reasoning in the previous opinion reflects settled law and that there's no standing for parties lacking an attorney-client relationship to call for disqualification. Forest City Ratner attorney Jeffrey Braun makes similar arguments.

SEQRA and the merits

Perhaps most intriguing is a sentence near the end of Kraus's document: “Petitioners simply seek to continue their longstanding opposition to the Atlantic Yards project by means of a collateral attack on ESDC’s counsel, Mr. Paget, instead of addressing the merits of the project itself in the context of the SEQRA review process.” (Emphasis added)

However, the SEQRA review process is limited to the environmental impact of the project. It involves a Draft Environmental Impact Statement (EIS)—likely to be issued within weeks—and a comment period involving at least one public hearing, then a Final EIS. It does not even require that all impacts be mitigated. (Some may simply deemed unmitigatible.) So it can address traffic, but not some larger questions.

Larger questions

Absent from the SEQRA review is any discussion of some of those larger questions . For example, was it proper for the Metropolitan Transportation Authority to wait to issue an RFP for the railyards—the proposed project’s largest segment—until 18 months after city and state officials embraced the project? (The discussion of the need to bid on the West Side railyards offers a contrast.)

Also, though the EIS will contain a description of the project’s potential economic and fiscal benefits, how useful is that description if the costs of the project are not fully disclosed?

Or, perhaps most fitting, why did local officials agree to let a state agency evaluate the project? That means that no Brooklyn elected officials have a chance to weigh in, a point made even by more moderate observers like Kent Barwick of the Municipal Art Society.

However, SEQRA can't be used to challenge the very existence of a process that bypasses local representatives in the interest of eliminating "red tape." That's why this has ended up in court.


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