Making NEPA Work: Rebuilding the World Trade Center

• Date: 01 July 2009

39 ELR 10636 EnviRonmEntaL Law REpoRtER 7-2009

Making NEPA Work: Rebuilding

the World Trade Center

by Stephen L. Kass

Stephen L. Kass is a partner in the New York oce of Carter Ledyard & Milburn LLP.

While environmental lawyers recognize that there

is no contradiction between meaningful environ-

mental review and timely completion of impor-

tant public projects, there has been widespread concern

that compliance with the National Environmental Policy

Act (NEPA),1 and in particu lar NEPA’s requirement for an

environmental impact statement (EIS), will frustrate or even

derail the major infrastructure project s that are central to

President Barack Oba ma’s stimulus program and the nation’s

economic recovery. However, one well-known project for

which we served as environmental counsel—t he redevelop-

ment of New York’s World Trade Center (W TC) site follow-

ing the September 11, 2001, terrorist attacks—demonstrates

that it is fea sible to complete even a highly complex envi-

ronmental review, including a comprehensive EIS, within a

one-year period that matches, or even precedes, the project’s

construction schedule.

As the attached NEPA compliance schedule shows, the

lead agency for the WTC’s NEPA review was actually a

New York State agency (the Lower Manhattan Development

Corporation (LMDC)) wearing a “federa l” hat as a grant

recipient from the Department of Housing and Urban Devel-

opment (HUD) under the Community Development Block

Grant (CDBG) program, which makes the recipient respon-

sible for both NEPA reviews and the historic preservation

requirements of §106 of the National Historic Preservation

Act (NHPA). Because New York also has its own EIS and

historic preservation statutes, LMDC was actually operating

under four separate environmental review statutes (NEPA,

NHPA, the State Environmental Qua lity Review Act, a nd

the State Historic Preservation Act), as well as the project

planning requirements of the New York State Urban Devel-

opment Corporation Act and the condemnation require-

ments of New York ’s Eminent Domain Procedure Law.

1. 42 U.S.C. §§4321-4370f, ELR S. §§2-209.

Despite this array of federal and state statutory require-

ments and the intense worldwide interest in the W TC

redevelopment pla n, LMDC managed to carry out fully

coordinated NEPA and §106 reviews with other cooperat-

ing agencies (both federal and state), complete public scop-

ing, prepare a comprehensive draft EIS, hold well-attended

public hearings, respond to thousands of oral, written, and

e-mail public comments, prepare an expanded nal EIS,

negotiate a §106 Programmatic Agreement with state and

federal preservation ocers, and issue a Record of Decision

(ROD) (as well as the corresponding state EIS ndings) in 13

months from the start of involved agency discussions.

As the attached schedule shows, even a highly complex

and controversial environmental review, such as the WTC

redevelopment, can be completed in a reasonable time in

full compliance with NEPA and a broad array of ot her fed-

eral and state laws, so long as t he lead federal agency is

committed to that end, has full support from cooperating

and involved agencies, involves the public from the outset,

and al locates t he required resource s to the technic al, lega l,

and management dema nds of the EIS and related envi ron-

mental reviews.