The federal high- way program was underway and there ... highway program. The money was irre- ... editorialize, âHighw
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fore, however, the Times had been an unstinting advocate for the Westway project, a $2.1 billion roadway to be built out into the Hudson River, and planned to revitalize the city. By Oliver Houck Westway had the support of two presidents, two New York governors, city mayors, the Rockefeller family, resident Eisenhower, the story living based on highways, beltways, and legislators at every level including goes, was coming in from Camp massive corridors to the suburbs, rows the delegation in Washington. It held David when he was stopped by of buildings towering over traffic flow- the promise of massive funding and large construction machinery in the ing like water, all to be fueled by this ready permits from the Army Corps road. Asking his driver about it, he new financial bonanza, the federal of Engineers, for whom construction learned that the federal highway ad- highway program. The money was irre- was a way of life. There was no doubt ministration was funneling a new in- sistible, and few cities resisted. Within that the existing West Side Highway terstate into Washington, D.C. Eisen- less than a generation urban America was in disrepair; indeed at one point hower, a fiscal conservative, is said to was transformed. in the controversy a large chunk of it have been appalled. It was a little late Within cities, however, resistance fell to the ground. President Reagan, for that, however. The federal high- to urban highways mounted. The lit- who had campaigned on scaling back way program was underway and there erature of the 1960s — Road to Ruin, government, presented the city with would be no stopping it, anywhere, for The Pavers and the Paved, Asphalt Na- an $85 million check to get Westway decades. Then came Westway. tion — reflects the helplessness people moving. The National Defense Highway felt in the face of the “highway maOpposition to the project seemed System, as it originally was called, was chine.” William W. Buzbee’s Fighting ad hoc and fragmented, with no censold to the president by his old friend Westway: Environmental Law, Citizen ters of political or economic power. Charles Wilson, CEO of General Mo- Activism, and the Regulatory War That Indeed, at an earlier hearing on a simitors and secretary of defense lar endeavor, the irrepressible during the recently ended Moses, unused to criticism, Fighting Westway: war. GM had two challenges rose unbidden from the auEnvironmental Law, Citizen selling cars in those years, dience to exclaim, “There’s Activism, and the Regulatory one being a highly successnobody against this project War That Transformed New ful rail and trolley system in but a bunch of women!” On York City. By William W. Buzbee. urban areas (the Los Angeles numbers alone, he was corCornell University Press. $79.95 network alone served 200 rect. And yet, today, there (hardcover) $24.95 (paperback). million riders a year over is no Westway. The banks nearly 400 miles of track). of the Hudson are open to The second was inadequate parks, ball fields, bicycles, roadways through the counand pedestrians. New York tryside. subways have been upgradWilson persuaded the feded. Small enterprises along eral government to fund rural the corridor have flourished. highways as national defense It seems impossible. Buzbee’s measures, modeled on the German au- Transformed New York City is a modern book tells how that happened. tobahns, and in secret agreements with addition to that library. other auto-related industries solved his Several of the earliest environmental trolley problem by buying up urban lawsuits challenged new auto corridors he backstory for the Westway systems across the country, tearing out through low-income residential arlitigation began miles upriver the rails, and converting city transpor- eas, parks, and other urban amenities. from the city at Storm King tation to buses and cars — for which Some years after the searing Westway Mountain at the head of the Hudson they were convicted of antitrust viola- experience, the New York Times would Highlands. There are several New Yorks tions and fined $500. Free federal roads editorialize, “Highways march — im- beyond the bright lights of Broadway and no competition going forward; it perially, relentlessly [and] as neighbor- and one of them is quite green, spawnhardly gets better than that. hoods are sliced in two and cemeter- ing the Hudson River School of paintThen came Robert Moses of New ies are relocated, neither the quick nor ing, the first landscape architecture, the York City with a new model for urban the dead are safe.” Twenty years be- first constitutional environmental pro-
BESTED BY A BASS
The Westway War and the Highway Program
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Copyright © 2015, Environmental Law Institute®, Washington, D.C. www.eli.org. Reprinted by permission from The Environmental Forum®, Jan./Feb. 2015
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vision, the first declared wilderness, the sue to satisfy federal agencies and the first provision for citizen enforcement issue died. The main issue Benstock, of environmental law, the first river- et al., wanted to raise was the alternakeeper, two of the first environmental tive of devoting Westway monies to public interest law firms, one of which city transit, a proposal soon bolstered (the Natural Resources Defense Coun- by new law opening the highway trust cil) was birthed over the controversy to (a limited amount of) mass transit at Storm King and went on to play funding. Nonetheless, under the Naa strong role in the final suit against tional Environmental Policy Act, once Westway. “consideration” of public transit was The Storm King cases challenged shown this issue too had run its course. federal licensing for a power project Which left the fish. and set the stage for Westway — the precedent for citizen standing; the notion that federal agencies had eneanwhile, Westway propovironmental responsibilities; and the nents were chomping at the remarkable coincidence that it was the delays. As Moses himself had same amenity at stake each time, the once prescribed, “Once you drive that Striped Bass, and equally remarkably first stake they’ll never make you tear the same attorney as it out!” And they were well, Albert Butzel, ready to drive it but The project had who was in both cases for the pesky legal acpowerful proponents from the outset and tions in the way. Each carried each for a denew hearing surfaced but was defeated cade. more facts, some of by a little fish The fight against them damning, some Westway like so many of them daunting. was born in the soul of a resolute local Before the end, even Moses declared citizen, in this case Marcy Benstock, Westway to be a misguided expendiwhose persistence was perhaps best rec- ture of federal funds, a “waste.” But ognized in a note from Governor Ma- that was yet to come. rio Cuomo after the war had ended: The fish was the stopper, and one “I commend your commitment, your thing to know about the Striped Bass courage, and your competence. I hope is that it had been the prize fish of the next time that we will be on the same region since the time of the Iroquois. side.” This is the fish whose presence at the In the Westway case the deck was massive intake structures of the Storm stacked from the outset and it would King project caused no end of agency take a lawsuit, indeed several lawsuits, machinations to deny them, and then for New Yorkers not in on the deal to their numbers, and then their life cyaffect it. Benstock’s position was laser- cles, and then their importance to the clear. She rode subways, she wanted entire ecosystem. better public transit and fewer lanes of Phenomenally, this same lighttraffic in the place she and millions of ning struck twice. Like the Federal others called home. The resources go- Power Commission up the Hudson, ing to yet another road should be used the Highway Administration and the for public transit, a hard sell because Corps of Engineers could not get it the big federal money came for high- into their heads, and into their docuways. ments, that filling in the bank of the The plaintiffs had several arrows in river for Westway would wipe out their quiver, the first of which was air one third of the juvenile population quality impacts, for which the state of Stripers in a single year, and worse had little data but opined to be insig- over time. In the trial that followed nificant. After three years of trying, the discovery of the Striped Bass along this state did enough homework on the is- stretch of the river, the court’s attitude
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Copyright © 2015, Environmental Law Institute®, Washington, D.C. www.eli.org. Reprinted by permission from The Environmental Forum®, Jan./Feb. 2015
toward the federal agencies morphed from puzzlement to astonishment and then outright disbelief. The judge sent them back to the drawing board, and enjoined construction. After 10 years on the case, Butzel yielded the reins to a young attorney at his prior firm, Mitchell Bernard, who soon joined NRDC, met the agencies on the field of battle one last time and, in four days of cross examination of their chief witness, destroyed them. The story of this examination, told in detail, is a highlight of the book. With the injunction against construction preserved, and upheld on appeal, the die was cast. Under pressure now even from Congress, the state and city finally opted to put the Westway money into transit. The highway dream was gone. Another dream lived on. Some would say, and did say, that the fish was just a ruse, a ploy to upset democratic processes that had duly blessed the project. Others would say, this writer among them, that the blessing itself was flawed, predicated on misinformation and, come crunch time, outright fraud. Democracy is about more than the trappings of process, but integrity as well. The federal highway program rolls forward on its own momentum — the most enshrined federal expenditure short of national defense — and littleWestways continue to arise. Highway projects are the most oft-litigated in the country in part because they are so intransigent, hard-wired against alternatives. Comes now a new reality. Gas tax revenues are dropping. No one dares to raise them. Other domestic priorities have already been slashed. Perhaps today’s fiscal realities will bring more balance to transportation, where environmental law can only hold the line and try to help it happen. The resistance to change here runs very deep. Oliver Houck is professor of law at Tulane University in New Orleans, Louisiana.
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