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Winter 1992
City Journal Winter 1992.
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  N ew York Views

Shutting Down New York
Richard Miniter
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The current economic slump has brought development in New York City nearly to a halt, but these are boom times for antidevelopment activists like Jerry Goldfeder, a Manhattan lawyer who may have found a way to stop development in the city altogether.

Goldfeder wanted to stop the Columbus Center project, a 57-story complex of offices, stores, and apartments that Boston Properties planned to build at Columbus Circle on Manhattan’s West Side. In 1990 he sued Boston Properties, New York City, the New York City Industrial Development Agency (which is helping to finance the project), and several other city and state agencies. He cast a wide net, alleging everything from violations of the federal Housing Act to failure to apply for the necessary permits for a parking garage.

Most of his claims were settled or dismissed. But Goldfeder found one argument that worked: He won a court ruling delaying the project because the city is in violation of the federal Clean Air Act.

The Clean Air Act compels the federal Environmental Protection Agency (EPA) to write and enforce national air-quality standards for various pollutants, including carbon monoxide. Each state must create an implementation plan to meet the EPA’s guidelines. If a state or local government fails to fulfill any part of this plan, the law allows citizens to sue to force compliance.

It was under this provision that Goldfeder sued, alleging that New York City was in violation of the carbon monoxide standard set by the state implementation plan. New construction, Goldfeder argued, lures more automobiles into Manhattan and boosts carbon monoxide levels even further out of the legally permissible range. On these grounds he sought an injunction halting development on the site of Columbus Center until a new environmental impact statement is prepared showing how violations of the carbon monoxide standard would be avoided.

The defendants did not dispute Goldfeder’s allegations. instead, they argued that since the city is actively working to enforce its implementation plan, it is not in violation of the law. In July 1991, U.S. District Judge Shirley Wohl Kram ruled in Goldfeder’s favor and awarded summary judgment.

Boston Properties is appealing the ruling. If it stands up, the city will likely be forced to deny all permits for new construction, because federal air-quality standards are next to impossible to meet. If the city falls out of compliance for any single pollutant for eight hours on any day of the year, it is considered to be a “nonattainment” area by EPA regulators.

The carbon monoxide standard at issue in Goldfeder’s lawsuit is nine parts per million. Of the ten test sites near the proposed Columbus Center project, only one is expected to exceed the legally permitted level, according to the latest environmental impact statement. The air at the offending site is expected to exceed the carbon monoxide limit even if the project is not built. (Two other test sites are expected to reach but not exceed the legal limit.)

According to the environmental impact statement, the site will experience carbon monoxide levels reaching 12.9 parts per million if the project is not built, and 13.3 parts per million if it is built. This is a statistically insignificant difference: Measuring instruments are imprecise, so the EPA requires that comparisons between carbon monoxide concentrations be rounded to the nearest integer. Thus, either figure would be round ed to 13 parts per million. Judge Kram acknowledged that “under this method of calculation the Project has no legally cognizable effect on carbon monoxide emissions at that site.” It is a sign of the times that she did not dismiss the Clean Air Act charges on this point alone. Instead, she said that although individual projects may cause no measurable harm by themselves, they could nonetheless have a harmful cumulative impact. A succession of increases in carbon monoxide could be hidden if each were small enough to be overlooked in the rounding.

Judge Kram did not stop at holding the developers responsible for miniscule, hypothetical increases in carbon monoxide. She also invoked an EPA requirement that new projects “mitigate existing carbon monoxide violations, even those carbon monoxide violations not of the projects’ own making.” She ordered the city to come into compliance with its federally mandated carbon monoxide targets by November 15, 1992. If the city falls to meet this deadline, the temporary halt to construction at Columbus Center will become permanent, and the court will impose an immediate $15 million fine on the defendants, plus additional fines until the city comes into compliance. If the Columbus Center project is scuttled, the city will also lose some $500 million in subway improvements promised by Boston Properties.

If Judge Kram’s reasoning is accurate, one can anticipate some minor increase in pollution resulting from any new building. Thus, her ruling would seem to entail a complete halt to development in New York City. But shutting down the city is an inefficient way to reduce pollution.

In fact, the assumption that more cars mean more air pollution is not necessarily true. A University of Denver study, which measured tail pipe emissions from cars on the streets of several major cities, found that more than half of all carbon monoxide emissions came from only 10 percent of the cars and trucks on the road. In fact, 70 percent of vehicles comply with strict federal emissions standards, and thus produce no measurable pollution. “Most cars are as clean as my breathing,” says Donald Stedman, one of the professors who conducted the study. Among cars less than one year old, only one in three hundred is out of compliance with federal standards. A 1989 EPA report backed up the University of Denver findings.

The best way to combat air pollution, then, would be to target those vehicles, mostly older cars, that produce the bulk of it. Of course, clean air is not Goldfeder’s chief concern, as evidenced by the fact that his lawsuit cited a hodgepodge of other arguments against the project. For example, Goldfeder alleged that Boston Properties was in violation of state conflict-of-interest laws because an executive of another company involved in the project is a former MTA official.

Goldfeder, like the plaintiffs in his case, lives not far from the Columbus Center site. He acknowledges that he is motivated by a dislike for development. “If we wanted the project to go forward—if the neighborhood wanted the project to go forward—we would not have brought the lawsuit that we did,” he says. “Obviously there is an antipathy toward large projects like this.”

It is an antipathy that is shared by many political activists. At any one time there may be dozens of Goldfeders in courtrooms across the city working to halt construction for any number of technical reasons. Increasingly, environmental laws are their weapon of choice. For example, a report by New York State Senator Franz Leichter (D-Manhattan) called for a moratorium on development on the West Side because the North River sewage plant is reportedly overburdened. This report—believe it or not entitled “Trump Card or Royal Flush?”—was one factor leading developer Donald Trump to scale down his 14.5-million-square-foot Trump City proposal. Still another way to halt development is by invoking the federal Clean Water Act, with which the city is also currently out of compliance. That law allows judges to impose fines of up to $25,000 per day of violation.

Environmental lawsuits can be a lucrative business. Several federal environmental laws, including the Clean Air and Clean Water acts, permit “citizen suits,” which give just about anyone the right to bring past, present, or potential polluters to court. These are among the few U.S. laws that permit successful plaintiffs to collect attorneys’ fees—although defendants must pay their own legal costs even if they win.

While individual lawyers may profit, developers and the city are left to pay the tab. All this might seem academic today, with the economy sagging and demand for new buildings wilting. But if judges, lawyers, and regulators succeed in erecting a gauntlet of rules to obstruct development, it is difficult to imagine how the city’s economy will ever recover.

 

 


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