Rocky’s Road

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Late last summer, during Nelson A. Rockefeller’s New York gubernatorial campaign, the Rockefeller family announced their intention that their 4,180-acre Westehester property, Pocantwo Hills, shall be “preserved and dedicated to the public interest. ” However, the estate will remain in the family at least for the lifetime of the current owners: Nelson, Laurance, David, and John D. in. In the process of enlarging and protecting their homestead through three generations, the Rockefeller family have occasionally come into conflict with public and governmental purposes. One such instance involved the Rockefellers—Nelson most prominently- in the controversy over a proposed Hudson River Expressway. The eminent law professor Joseph L. Sax, of the University of Michigan Law School, uses this incident in the essay below to illustrate the vulnerability to personal and political pressure of administrative agencies charged with safeguarding the environment. The essay is based on material in Professor Sax’s forthcoming book, Defending the Environment: A Strategy for Citizen Action , to be published this month by Alfred A. Knopf, Inc.

Though publicly committed to the idea of democracy, as private citizens we have withdrawn from the governmental process. Between the individual and the constitutional government, we have interposed the administrative agency, with the power to act in our behalf.

In itself, the administrative agency is neither sinister nor superfluous; indeed, it is an essential institution to regulate the myriad quasi-public activities that require standards, permits, and routine rules. Unfortunately, the administrative agency has become more than a useful supplement to the governmental process. In fact, it has supplanted the citizen, and the defense of the public interest is left to “those who know best.”

The unwillingness and/or inability of “those who know best” to act in the public interest extends to environmental questions as well as to more traditional public interests. The failure of the administrative system to protect the environment is nowhere better illustrated than in the controversy over the proposed Hudson River Expressway in New York State. The participants included such public-spirited figures as the Governor, Nelson Rockefeller, along with his brother Laurance and his cousin Alexander Aldrich, chairman of the Hudson River Valley Commission; Stewart L. Udall, then Secretary of the Interior, and officials of some of the Interior’s subordinate agencies; and Congressman Richard L. Ottinger of Westchester County.

In outline the dispute was simple enough. For $140,000,000 the state of New York proposed to build a sixlane divided expressway from Tarrytown to Crotonville —a distance of 10.4 miles—along the eastern shore of the Hudson River, in substantial part by filling shallows along the river’s shoreline as a base for the road. In essence the objection was that the fill would harm a richly productive habitat for marine life, and that an inland route along other established highway corridors would be preferable, not to mention far less expensive. Some questioned the need for a new road anywhere in the crowded, highway-clogged Hudson River corridor.

This was no old-style project, initiated under statutes lacking environmental standards, quietly gaining momentum until the bulldozers appeared one day. Quite to the contrary, the Hudson River had long been a source of extraordinary public attention and seemed to be about as well protected legally as any natural resource could be.

At the instigation of Representative Ottinger and others, Congress in 1966 had passed the Hudson River Compact Act, which specifically recognized that the Hudson contained “resources of immense economic, natural, scenic, historic and recreation value to all the citizens of the United States.” The law required that all governmental agencies refer to the Secretary of the Interior any plan or project that might affect the resources of the Hudson. Other federal laws, among them the Fish and Wildlife Coordination Act, are specifically designed to protect threatened animal life and habitat. In keeping with these laws, the Fish and Wildlife Service, the U.S. Corps of Engineers, the U.S. Department of Transportation, and the Bureau of Outdoor Recreation all were brought into the expressway controversy, along with the usual panoply of state administrative agencies.

Moreover, in an effort to maintain its own control over the Hudson, the state of New York had created the Hudson River Valley Commission for the express purpose of encouraging the “preservation, enhancement and development of [the river’s] scenic, historic, recreational and natural resources. …”

In accordance with the various overlapping laws, an almost endless stream of meetings, public hearings, and legislative inquiries was held on the expressway proposal. Indeed, the public record would suggest that it was one of the most fully studied projects in the history of American resource development. An Interior Department memo asserted that “no transportation controversy has been reviewed more extensively … than this particular proposal.”