Unpacking a fib in the ESDC's Supreme Court brief

The Empire State Development Corporation (ESDC), in its brief arguing that the U.S. Supreme Court should not hear the Atlantic Yards eminent domain appeal, fibs about its history, using circular logic that suggests a court has defined the agency's job as encouraging projects like Atlantic Yards.

Here's the passage:
In the legislation creating ESDC, the Urban Development Corporation Act of 1968... New York’s legislature delegated to ESDC the sovereign power of eminent domain to achieve its objectives. ESDC is directed to “encourag[e] maximum participation by the private sector of the economy,”... “in part by promoting large-scale real estate projects that create and retain jobs and/or reinvigorate distressed areas.” Develop Don’t Destroy Brooklyn v. Empire State Dev. Corp., 816 N.Y.S.2d 424, 427 (N.Y. App. Div. 2006), appeal denied, 862N.E.2d 790 (N.Y. 2007).
(Emphasis added)

What "maximum participation" meant

The yoking together of two very disparate phrases is deceptive on two counts. First, when the Urban Development Corporation (which operates as the ESDC) was founded in the wake of urban riots in 1968, the law stated that the development corporation would pursue its objectives via "issuance of bonds and notes to the private, investing public, by encouraging maximum participation by the private sector of the economy, including the sale or lease of the corporation's interest in projects at the earliest time deemed feasible..."

In other words, the UDC would initiate projects, then try to sell its share. Now "maximum participation" means saying yes to projects brought by a private developer.

Second, there's no connection between the phrases; the encouragement of "maximum participation" by the private sector comes from a law passed in 1968, while the promotion of “large-scale real estate projects" comes from a 2006 decision from a New York State appeals court. The state court's decision simply adopted phrasing from the ESDC's own brief in that case.

Circular logic

And where did the phrasing in that earlier brief come from? The ESDC's own mission statement.
As I pointed out in May 2007, it's a neat maneuver, with circular logic. First, the ESDC announces its mission on its web site. It describes its mission in legal papers. A New York State appellate court adopts that language. Now, in legal papers, the ESDC cites the definition as emanating from the court, not itself.

In the Supreme Court brief, at least, the ESDC is no longer claiming, as it did last year, that encouraging "maximum participation" is its "primary mission." (Emphasis added) But it's still suggesting that "maximum participation" is fulfilled by promoting projects like Atlantic Yards.