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Triage vs. Precaution

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 

   19      requirements?

   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

    3      case.

    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.

A bend in the river... and in State policy

At 3 pm on Saturday, The Olana Partnership presented an illuminating panel discussion at Stair Galleries moderated by Hudson resident and Manhattan attorney Dorothy Heyl about the successful late 1970s fight to stop a nuclear power plant proposed in Cementon—smack in the middle of Olana’s southern viewshed.

Overall, the panel discussion was highly informative, stimulating and at times even inspirational. Of particular interest were Carl Petrich’s recollections of how officials within the Oak Ridge lab of the Nuclear Regulatory Commission supported his landscape planning work in spite of his eventual conclusion that this wasn’t a suitable location for a nuclear plant.Petrich’s independent-minded analysis was in many ways responsible for the project’s demise.

Fellow panelist Wint Aldrich similarly recalled that he was afforded a remarkable degree of autonomy to question the project within the Hugh Carey administration. Today it seems hard to imagine that the same level of non-politicized, objective, but ultimately oppositional research would be as tolerated in our 21st Century Federal and State bureaucracies...

There were, meanwhile, a couple of moments when an informed observer couldn't help wishing for a longer and more detailed debate than is possible on a late Saturday afternoon.

For example, panelist Rick Benas, a semi-retired NYS DEC staffer, touted a visual impact assessment policy he helped finalize in 2000. As reported by John Mason in The Catskill Daily Mail, Benas heralded this internal agency policy as a signature achievement growing out of the nuclear plant fight—characterizing it as “the basis with which the DEC judges all submissions regarding aesthetics. You identify the resource, figure out how to minimize the impact.”

Benas (who had earlier offered an authoritative explication of the visual elements which make the view from Olana so powerful) touted the policy as “an objective way to measure a subjective phenomenon.” He further claimed that it “is supported by both industry and environmentalists, concluding that “What’s in here is what we all share. If an agency’s not doing its job, throw this in their face.”

That sounded pretty darn good... prompting another panelist to suggest that maybe this policy should become law, rather than just an internal guidance policy.

However, Mr. Benas neglected to mention that in 2001 he and his colleagues at DEC had interpreted that very same policy to justify their support for the proposed St. Lawrence Cement Greenport project—a project resolutely opposed by Olana primarily due to visual impacts.

In 2001 proceedings before Administrative Law Judge Helene Goldberger, Olana attorney John Caffry expressed amazement at Benas and DEC’s policy-backed assessment, calling it “mind-boggling.”

Why “mind-boggling”? Because the SLC Greenport proposal featured, among other things, a 400-foot stack the size of an office building, with a plume stretching five miles or more, as well as several dozen other major structures atop Becraft Mountain and at the Hudson Waterfront. County resident Moisha Blechman aptly called it a “new industrial city.” As seen in the documentary Two Square Miles, balloon tests insisted upon by citizens later confirmed just how colossal and pervasive the visual impact of that new “city” could have been.

Yet the DEC’s 2000 policy made it very difficult, if not impossible, for the agency to reject a proposal based on visual impacts... even impacts as vast as those proposed by SLC. That’s because their policy is based on the premise that if a company does everything it can to “mitigate” and “offset” its presence in the landscape, then the project can still be approved—even if after those efforts, there are still significant, adverse, “residual” impacts.

In lay terms, the DEC policy says: If a company gets an A for effort, it makes it OK for them to get an F on the actual test. The policy allows approval of a project despite its harsh and discordant elements, so long as the applicant makes a good faith effort to mitigate them “to the maxium extent practicable.”

So while Mr. Benas and DEC acknowledged in 2001 that it was impossible to hide such a big project, since SLC was offering as many mitigations as possible given the circumstances, the remaining negative impacts did not constitute grounds for a denial.

Thus Benas, backed by then-DEC attorney Bob Leslie, argued from their visual policy that hiding a small portion of the 400-foot stack in an 80-foot hole in the Greenport quarry, painting parts of it light blue, then removing several structures plus the plume from Catskill was an adequate combination of mitigation and “offsets” to warrant approval, even though the plant would still have undeniable visual impacts. Following this policy, the agency proceeds from the assumption that virtually every proposal will be built. In that context, the agency’s job becomes limited to making the best of bad situations—not to prevent them. (This mindset is not limited to government bureaucrats; Scenic Hudson president Ned Sullivan has similarly argued, in the pages of The New York Times, that his organization’s role is to “manage” development, not to stop it.)

Below is the key section of Benas’ 2001 testimony from the Issues Conference held at the Hudson Elks’ Lodge referenced above, pp. 1696-7:

10                     Staff is guided by DEC program policy

11      number DEP-00-2 assessing and mitigating visual

12      impacts.  The policy was the subject of public review

13      and comment, had a peer review and comment, and was

14      issued in July of 2000.

15                     What the policy does is, among other

16      things, it gives the universal list of all mitigation

17      strategies in this discipline.  With that list, if an

18      Applicant demonstrates that they have employed every

19      strategy of mitigation, then the Applicant can assert

20      that they have minimized impact and Staff can either

21      refute or confirm that by looking at the generic list

22      and making sure that  all strategies have been

23      applied.

24                     In this case, even after employment of

2      all those strategies, there remains a residual

3      significant adverse impact, then the policy directs

4      Staff to explore the possibility of offsets to

5      compensate for and reach the balance that SEQR

6      requires.

7                     Applicant has offered significant and

8      important offsets in this proceeding and, further,

9      Staff has gone to require in the draft permit that

10      the facility be decommissioned at the end of its

11      useful life, thus, minimizing the duration of the

12      impact.

13                     We believe that the issue before your

14       Honor, among other things, is are those offsets

15      sufficient to justify approval.

The decision had tremendous precedential value; fortunately, it was not left solely up to the discretion of EnCom staff, who worked closely and privately for year's with SLC to hone its application. For if the Greenport project could have been built here, pretty much anything could. One seriously has to wonder whether, under the terms of the current policy, DEC would be able to stop a nuclear plant at Cementon on visual grounds.

State regulators were also relying on an assumption that was wholly rejected by The Olana Partnership itself, namely that only the southern view from the site really matters... Frederic Church plainly designed a 360-degree experience at Olana, and sketched or painted other views in other directions, for example looking toward Becraft Ridge. DEC staff also rushed to ratify the cement company’s assertion that the project would have no significant, adverse effect on historic resources within the Coastal Zone, even though neither the Department of State nor the Office of Parks, Recreation and Historic Preservation (OPRHP) had weighed in on the matter yet.

Ultimately, citizens concluded that the DEC was not, in Benas’ own formulation, “not doing its job” and indeed threw more enforceable laws “in their face.” after years of wrenching controversy and millions spent by both sides, the project was denied via those same Coastal Consistency rules that EnCon had shrugged off … The decision came down from a different agency, much to the chagrin of many DEC staffers, from what opponents soon heard through various Albany grapevines. (“They were shocked and angry over the Secretary of State’s decision,” one well-placed Capitol source reported to me.)

As it turns out, there was no need to compromise one view for another, or to settle for making the best of a bad situation. The 2005 rejection of the Greenport project has now been coupled with clear confirmation of the closing of Holcim’s (SLC’s) Catskill facility. The visual plumes from that destructive, foreign-owned company now have been removed from both sides of the Hudson River, along with the pollution they discharged into our region’s environment. What had been posited as a tough either/or choice, pitting Olana’s stunning southern views against its overall experience, now has played out as a complete win/win for the site.

Another topic worthy of more detailed future discussion: the way in which boundaries were later drawn (under the guidance of Cementon anti-nuclear activist Loretta Simon) to protect the Catskill-Olana and Columbia-Greene Scenic Areas of Statewide Significance, but left a gap omitting all of the City of Hudson in between the two. But that’s something for another day, as this post has already gone overlong.