Rocky’s Road

PrintPrintEmailEmail Udall … does not want action on this matter too soon after the election and recommends about December i as an appropriate time for submission of the letter to the Corps. The letter to the Corps is to give the rationale for Udall’s non-opposition. It is to state something to the effect that while he initially had reservations about the expressway, he is influenced by the findings of the two groups that made onsite reviews of the Hudson and, accordingly, will not oppose. Udall’s feelings are that his decision is a very limited one in view of the fact that the State and Governor Rockefeller have prime responsibility. … A press release should be prepared at the time the letter goes to the Corps of Engineers. The press release should indicate that the Secretary’s decision is based on Bureau of Outdoor Recreation’s recommendation or on the results of the two studies performed by Interior officials.

It took congressional hearings thus to reveal the susceptibility of the administrative process to political pressure. They also provided insights into the inability of the administrative agencies to do the work they were assigned to do, even were they not under the political gun. Testimony revealed that the Department of the Interior studies, whether or not they were available to Secretary Udall in time to affect his decision, were simply recastings of research done by New York State. Furthermore, the New York State report, produced under a one-month deadline, was itself compiled without original field work, relying instead on still earlier studies, some of which dated back to the i93o’s. But according to one Interior Department official, “Duplication of effort between our biologist and the State of New York would be a luxury that we could ill afford.”

It also became obvious that the Interior Department had made no study of alternative routes for the expressway, an inquiry that would seem essential to any genuine attempt to protect river wildlife and habitat. All one official could offer was the unofficial opinion that “the State Department of Transportation could have considered alternative routes more fully than they had done.”

Ironically, it was neither the Dingell subcommittee probe nor the ineffectual administrative procedures that the subcommittee was investigating that ultimately forestalled the incursion of the expressway into the Hudson River. Rather, the Rockefeller road builders were at least temporarily stalled by a vestigial remnant of a nineteenth-century law that no dike could be built in navigable waters without the express consent of Congress. In 1969 Judge Thomas Murphy in the United States District Court enjoined the Corps from going forward with the Hudson River Expressway on the express ground that there was no act of Congress authorizing the building of a “dike” in the Hudson, which was to be filled and then covered with a road. Just last December the Murphy decision was allowed to stand by the U.S. Supreme Court.

It may be hard to believe that this is what occupied lawyers and the judge in a case that consumed thirty trial days and produced a four-thousand-page transcript, but it really happened. What makes all this so nonsensical, of course, is that the ability to obtain a court injunction against a project of this magnitude ought to have nothing to do with such an archaic technicality as whether a dike is to be built. The statute books are full of such old, often obsolete, laws that it is in no one’s interest to enforce vigorously. This situation promotes bad law and inconsistent and unforeseeable decisions, and imposes upon lawyers an incentive to search the statute books for some legal standard—however dubious—by which their client’s interest can be vindicated.

If this situation were corrected, however, the courtroom would become an essential arena for citizen participation in the management of our environment, not because judges are thought wiser, or the processes of litigation are particularly rapid, but because the court pre-eminently is a forum where the individual citizen or community group can obtain a hearing on equal terms with the highly organized and experienced interests that have learned so skillfully to manipulate legislative and administrative institutions.

The citizen, as a member of the public, must be recognized as having rights enforceable at law, equal in dignity and status to those of private property owners. The ancient notion that government holds natural resources in trust for the benefit of every citizen can and should be revived and adapted to contemporary problems. Only then will concern with environmental quality be put on an equal footing with the interest in its exploitation.