Further to yesterday’s post on the matter of State policy for assessing the visual impact of development projects, below is another important passage from the 2001 Issues Conference on the St. Lawrence Cement Greenport project. This was the first major test of the new DEC policy, which had been completed concurrently with the agency’s initial, positive review of SLC’s application.
(Some might say that the policy had been tailored, consciously or not, to avoid conflict with that company’s goals; at the time, the Pataki administration in general and Encon Staff in particular were believed to be pro-plant. The still-contested Athens Gen project, visible from the northern side of Olana and from other vistas in Columbia and Greene counties, may also have put pressure on staff to circumscribe its guidelines.)
The speakers below are Adminsitrative Law Judge (ALJ) Helene Goldberger and DEC staffer Rick Benas, who was also a member of Saturday’s Olana panel. This passage appears on pp. 1709-10 of the official transcript [PDF] of the July 2001 hearings, and immediately followed stern challenges from Olana attorney John Caffry to the State’s premature acceptance of the project’s visual impacts:
16 JUDGE GOLDBERGER: […] But Staff is
17 satisfied that based upon the mitigation that's been
18 offered by St. Lawrence Cement that it meets the SEQR
20 MR. BENAS: What Staff believes is
21 that the Applicant has minimized impacts to the
22 maximum extent practicable, has offered substantial
23 offsets and decomissioning that the decision-maker
24 has to take into account, along with all other
2 essential considerations to reach a decision in this
4 By itself, this discipline does not --
5 the effects, the significant residual impacts are not
6 significant enough to suggest denial.
The problem, again, is that the DEC visual assessment policy used by Benas and his colleagues (and still in use today) proceeds from an assumption that SEQR review is a form of triage. The regulator assumes and accepts that some of their patients—here, valuable elements of landscape—will be partially maimed or lost entirely. Not everyone will be saved. He or she then calculates which patients need the most care and which have the best chance of survival, and decides which are most important to try to save first.
In the cases of both SLC’s Greenport project and to some extent the review of Athens Gen, the southern Olana viewshed was deemed by some in Albany to be the more important “patient.” If you did what you could to protect the southern view, at the expense of the rest, that was acceptable from the stanpoint of regulatory triage. Building three medium-sized stacks to the north in Athens, or one gargantuan one to the east in Greenport, was deemed a secondary priority, one that could be sacrificed to benefit the view to the south.
Many citizens and historians, however, would start instead with a more fundamental maxim from medicine—the imperative to first, do no harm. For environmentalists, this notion is enshrined in the Precautionary Principle. And this notion (which polluter-friendly regulators rarely if ever want to contemplate) is in fact built into the State Environmental Quality Review Act as the requirement that proposals must be evaluated in relation to the “No Build Option.”
DEC’s visual assessment policy in this case gave cover to those who, like company attorney Tom West, wished to erase that option from the menu. Or at least, that’s how DEC treated its own internal guidelines in their first major test. This intersected with another common debate between the lawyers on each side: How to interpret the dictates of SEQR’s balancing provisions. How much triage does “balancing” allow? If one impact is unacceptable, but three others are acceptable, can the three take precedence over the one? (In a Coastal Consistency review by DOS, no “balancing” is supposed to occur—if you violate one policy, it shouldn’t matter how consistent the project are with the rest.)
And as it turned out, no such triage was necessary in the SLC case. Today, there is no cement plume from either a Greenport stack or a Catskill one. The Precautionary Principle prevailed. (The same cannot be said of Athens Gen, which was permitted cynically on an unachievable condition that there would be no visible plume from the facility, though one often sees a massive one over Athens from the Columbia County side of the river on cold, damp winter days.)
As noted in yesterday’s post, the current visual policy serves as a non-binding set of guidelines for regulatory staff. It is not law, though a suggestion was advanced at the Saturday panel that it be made so. To do so would be to codify that dangerous assumption: that some “resources” may be sacrificed for others.