Turning a blind eye to environmental risks

Government officials almost always give developers a free pass when considering potential problems of projects
News and analysis by Geoff Kelly, Investigative Post's political reporter

You’d think that the construction of a million square feet of manufacturing space on a brownfield along the Buffalo River would warrant a thorough environmental investigation before shovels bit into the soil.

And you’d be wrong.

The Tesla plant in South Buffalo was built on a former Superfund site — once home to Republic Steel, Donner Hanna Coke and Feine Steel, among other historic industrial polluters. The site borders the environmental debacle that was (and is) the Hickory Woods residential development, which was poisoned by the use as fill of toxic materials created by those plants.

Prior to its purchase by the City of Buffalo in 2008, the future Tesla site was mired in lawsuits between the partnership that owned the land, Steelfields, and a company that built a factory on the property, Hydro-Air. The crux of those lawsuits: inadequate and incomplete environmental remediation.

Further, the site falls within a federally designated “Area of Concern,” so labeled because of past and present environmental degradations to the Buffalo River.

In short, there were plenty of indicators that, before pouring hundreds of millions of dollars of public money into the site, it would have been prudent for the state — or the city, or SolarCity itself — to insist on a thorough environmental investigation of the site.

Not just a matter of prudence, in fact. A requirement under the New York State Environmental Quality Review Act, or SEQRA.

Right?

Wrong.

Instead, the SolarCity project — later acquired by and re-branded Tesla — was granted a “negative declaration,” a shortcut through the state-mandated environmental review process.

The Tesla plant is just the most extreme local example of a what has become a common tool for fast-tracking development projects, notably in the City of Buffalo.

SEQRA requires that a “lead agency” — a government body, usually local, but sometimes state or federal — consider whether a proposed project or new law might have significant adverse environmental effects on the surrounding community. Those effects include but are not limited to air, water, and soil pollution. They also include sound and traffic, changes in the character of a neighborhood, socio-economic impacts  (e.g. gentrification) on existing businesses and residents, and damage to historically or culturally significant assets, among other factors.

The lead agency is required by state law to take a “hard look” — that is, a detailed, well researched, and documented evaluation — at those questions, then decide:

  • Are the potential impacts negligible? If so, the lead agency can issue a negative declaration.
  • Or does the project require an environmental impact statement, or EIS, to delve deeper into those potential impacts and find ways to minimize them?

To require an EIS, the lead agency need only identify one significant adverse impact. Just one. And it’s not a balancing act, where the lead agency can dismiss potential adverse impacts by citing the positive outcomes a project promises. The adverse impacts must be considered by themselves.

The threshold for requiring an EIS is set so low because the architects of the state law understood that some damage, once done, is irreversible. A court can award damages after the fact, but it can’t make a sick child well or bring a failed business back to life. A court can’t help a homeowner whose neighborhood is walled in by strip malls and car traffic.

The point of an EIS — which a panel of appellate court judges, ruling 40 years ago, called “the heart of SEQRA” — is to identify and mitigate potential damage before it occurs. SEQRA and the EIS are not meant to be obstacles to development. They are meant to protect the interests of the public.

A full-blown EIS costs time and money. It requires the solicitation of (and response to) public comments on the proposed project or law. It requires that the proposed project or law be modified to reduce or eliminate whatever adverse environmental impacts the EIS reveals.

And so, in the interest of saving developers time and money, governments overwhelmingly cut right to the negative declaration, even when — as in the case of the Tesla plant — that shortcut seems absurd.

Only twice in 2018 did a government in Erie County government require a project to undergo a full EIS. (These were the redevelopment of the former Women and Children’s Hospital site in Buffalo and a brownfield redevelopment plan in North Tonawanda.) There were 46 negative declarations.

In 2017, the number of EISs required throughout Western New York was zero, according to a count by semi-retired land-use attorney Arthur J. Giacalone. Giacalone writes extensively about the degradation of state environmental laws on his blog, With All Due Respect.

So far, in 2019, the City of Buffalo has not required an EIS for a single project, large or small.

Here are just a few large-scale projects for which the City of Buffalo has issued negative declarations in recent years:

  • The redevelopment of the 100,000-square-foot Pierce Arrow administration building on Elmwood Avenue.
  • The demolition and replacement of Buffalo’s downtown Amtrak station.
  • A large-scale retail and residential project at Michigan and Broadway.
  • The expansion and rehabilitation of the Albright-Knox Art Gallery.
  • The HarborCenter development at Canalside.
  • Uniland’s glass tower at the corner of Delaware and Chippewa, the headquarters for Delaware North Companies.
  • Ellicott Development’s new 350,000-square-foot building at 1091 Main Street, adjacent the former Our Lady of Lourdes church.
  • Ellicott Development’s 500 Pearl Street building, from which the rooftop bar broadcasts loud dance music into Allentown’s residential blocks late into the night.
  • Ciminelli Development’s proposal for 201 Ellicott Street — three new buildings downtown, totaling more than 200,000 square feet — despite easily predictable short- and long-term impacts on traffic and parking.

The negative declaration for 201 Ellicott Street precipitated a lawsuit, since dropped, that was the subject of a previous column.

As for the sound pollution emanating from 500 Pearl Street’s rooftop bar, an EIS might have identified that adverse impact and required Elliott Development to address the issue before it caused neighbors sleepless nights.

Negative declarations open the city to lawsuits by citizen activists or competing developers alleging failure to comply with state law and city policy. But those lawsuits seldom go far. And city residents who complain about a noisy new bar? They tend to be dismissed as whiners.

Some well-informed observers suggest that the negative declaration has grown especially popular under Mayor Byron Brown. One land-use attorney told Investigative Post the first truly egregious use of the negative declaration he could recall was for the Seneca Buffalo Creek Casino — not the blue corrugated metal placeholder that opened in 2007, but the complex that’s there now, which opened in 2013. That project’s size and its obvious potential impacts on traffic alone, especially in concert with events at the neighboring hockey arena, should have triggered an EIS, the attorney told Investigative Post. Instead, it was fast-tracked with a negative declaration.

But greasing the skids for developers is not a game invented by Byron Brown. Consider this conclusion, offered by Jim Smith, executive director of the city’s Office of the Environment — a job title and an office that no longer exists — in his 1994 State of the Environment Report for the City of Buffalo. Smith wrote that “there are serious problems with the City’s compliance with SEQR”:

“… Due to a lack of procedural guidelines, and in some cases lack of commitment, the City of Buffalo does not fully obey New York state law regarding mandated environmental review procedures…”

Giacalone, the semi-retired land-use attorney, has a copy of Smith’s 1994 report, somewhere in his invaluable archives. He’s been at his a long time. Around the time of Smith’s assessment, former Mayor Anthony Masiello’s administration orchestrated a negative declaration for Benderson Development’s massive shopping plaza between Elmwood and Delaware, north of Hertel Avenue.

At the time, Giacalone served on the Buffalo Environmental Management Commission, which was supposed to review such projects. Masiello bypassed the commission, issuing a negative declaration without consulting it, which prompted Giacalone to resign.

The Benderson project, built without thorough environmental review, established a precedent that made it difficult for the city to resist big-box development. Its acres of asphalt strain storm sewers. The traffic it generates is a bane to adjacent residential neighborhoods.

Nor is this solely a City of Buffalo or a Western New York practice. The spirit of New York’s environmental review laws are breached everywhere across the state. In 1989, there were 385 EISs performed statewide — the peak. The statewide average in that time period was about 350 per year. The number began to drop in the 1990s, as governments turned to negative declarations as a shortcut through SEQRA’s requirements.

Now, according to a 2017 report by the state Department of Environmental Conservation, “only about 200 EISs are prepared on a yearly basis for tens of thousands of actions that are presumably the subject of a negative declaration.”

Most of those negative declarations are reasonable. Many are as absurd as the Tesla example.

The negative declaration for the Tesla plant on South Park has consequences. During construction, workers unearthed radioactive material and other hazardous wastes while preparing the site for construction.

Did this discovery of hazardous waste — which might have been anticipated by an EIS — slow construction?

Not at all. The lead agency, SUNY Polytechnic Institute — which would soon become embroiled in fraud and bid-rigging charges — simply filed a notice with the state Department of Environmental Conservation claiming that that the waste and its burial “will not have a significant adverse environmental impact.” The state DEC acquiesced: No further study or planning were required.

Some of the material unearthed during construction was so toxic it had to be sent to a hazardous waste dump in Ohio. About 50,000 cubic feet of tainted soil were buried on site.

The developer, LP Ciminelli, buried some of that waste on the banks of the Buffalo River. The rest they used as fill under the Tesla plant’s parking lot.

That is almost exactly what Republic Steel did, too. The company used toxic waste to pave its parking lot, right where the Hickory Woods housing development would be built in the late 1980s and early 1990s.

Surely, you say, all that waste and its dangers were identified in the Environmental Impact Statement created before the city started building Hickory Woods. Right?

Nope. Wrong again. There was no EIS then, either. And look how well that turned out.