Tuesday, August 30, 2011

Will judge's decision requiring Supplemental EIS be appealed? Unclear, but we should know by mid-September

So, what happened with that significant, if belated, Atlantic Yards judicial ruling in July?

Remember, the Empire State Development Corporation (aka Empire State Development) was ordered to conduct a Supplemental Environmental Impact Statement (SEIS) for Phase II of the Atlantic Yards project and was criticized for "arbitrary and capricious" reliance on the assumed--but not credible--ten-year buildout.

Well, the state can comply, or it can appeal. And it hasn't decided.

Note that, given the low judicial bar, requiring government agencies to have merely a "rational" basis for their decisions, it's very unusual for judges to lodge such criticism--one of the reason, I'd argue, for the significance of state Supreme Court Justice Marcy Friedman's ruling.

State posture

Last week, I asked Arana Hankin, Director, Atlantic Yards Project for the ESD, about the status of the case.

"We're still discussing our options internally," Hankin said, during a longer interview. "We feel strongly that we complied with all the SEQRA [State Environmental Quality Review Act] laws and all applicable laws. We understand that there may be a need for us to reevaluate some things, or possibly take another look... But we haven't made any final decisions yet. We have until September 16 to appeal. So we're still talking internally, with everyone, including the second floor [governor's office] about how we're going to respond."

Note that, before September 16, ESD President and CEO Kenneth Adams may be speaking in Brooklyn, as some public officials have indicated. If so, we might learn of the policy posture by then.

Forest City Ratner's role, and a bet

Note that developer Forest City Ratner was a co-defendant in the case, brought by two coalitions of community groups, led by Develop Don't Destroy Brooklyn and the Prospect Heights Neighborhood Development Council, the latter on behalf of BrooklynSpeaks.

Also note that Forest City Ratner pays the fees of the ESDC's outside counsel in this case.

The state agency takes the lead, but, if I had to bet, I'd bet that Forest City Ratner is pushing for an appeal. Cost is merely one factor, and Forest City was once willing to pay a high-priced lawyer to try to avoid a relatively small fine for improper demolition.

So the developer (and the state) might want to see a critical ruling overturned.

On the other hand, there are surely multiple considerations afoot, and the production of a Supplemental EIS might be a simpler solution.

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