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Though publicly committed to the idea of democracy, as private citizens we have withdrawn from the governmental process.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.”

In the end, however, even after the full course of administrative review had been run and the project was approved, there remained widespread feeling among many interested parties, especially Representative Ottinger and the conservation interests he represented, that the Hudson River had not been very well protected at all; that in fact it had been betrayed. This feeling was so strong that in 1968 it impelled a lawsuit by an ad hoc group called the Citizens Committee for the Hudson Valley, joined by the national Sierra Club as well as the village of Tarrytown, through which the expressway was routed. On narrow technical grounds the lawsuit was successful in blocking construction of the expressway, at least temporarily.

While legal action was in progress, the handling of the expressway was investigated in Congress by the Fisheries and Wildlife Conservation Subcommittee of the House Committee on Merchant Marine and Fisheries, chaired by Congressman John D. Dingell of Michigan.

The inquiry was understandable enough, for in this case considerable legislative effort had been expended to insure acceptable and informed administrative decisions; there had been much public participation, and a number of presumably neutral or uncommitted agencies had been brought in. Yet a highly questionable decision had resulted. What had gone wrong? Among other things, the Special Subcommittee uncovered the footprints of a political pas de deux danced by Governor Rockefeller and Secretary of the Interior Udall.

To appreciate fully the politics of the expressway dispute and its implications for the Interior Department, one must recall a little history. In 1956, some years before the riverside route for the expressway was adopted, Interstate 87 was proposed as part of the federal interstate system, to run several miles to the east of the river- right through the heart of the 4,180-acre Rockefeller estate at Pocantico Hills. It would pass within two hundred yards of Nelson Rockefeller’s home—once the home of the family patriarch, John D. Rockefeller—and about one hundred yards from the house of Laurance Rockefeller. In 1958 Nelson Rockefeller was elected governor of New York; the proposed routing for !-87 was never heard of again.

During the next few years various proposals were made for rerouting the highway both east and west of the Rockefeller estate, among them a western alignment approximately skirting the Hudson River bank. As late as 1962 the New York Department of Public Works vigorously opposed the western route. Its commissioner noted that such a route would: (1) confine costly facilities to a narrow corridor without provision for the greatest traffic needs of the region; (2) serve only locally originated or locally bound traffic; and (3) lead an additional four to six lanes of traffic into the already frequently overburdened New York State Thruway.

In 1965 Secretary of the Interior Udall wrote, “Frankly, I do not believe that a high speed Expressway serving commercial and industrial traffic would contribute to this objective [of preserving the river’s “irreplaceable values”]. Indeed, it would destroy the very access that, wisely conserved and developed, could return the Hudson River to the people.”

At the same time, the Secretary wrote another letter to the Secretary of Commerce, urging that no federal funds be appropriated for the expressway: “Such an expressway in the highly scenic and significantly historic corridor along the Hudson River would seriously impair the values which we are all trying to preserve.” In 1966 an Interior Department report titled Focus on the Hudson recommended that the proposed expressway “not be constructed.”

By the time the riverside expressway proposal reached final form, certain changes had been made, among them the strategic—though costly to New York State taxpayers—conversion from a federal interstate highway to one financed wholly by the state, insulated from federal control. Additional provisions were made for river-front parks (on land donated by the Rockefellers) and for increased access to the river. Those factors were often cited in support of the expressway, though objectors continued to ask—without any satisfactory response—why desired parks and access could not be provided without a highway.

In any event, in 1965 the New York legislature passed a statute authorizing the expressway. That law, the subject of much subsequent controversy, moved through the legislature at record speed. The bill was not calculated to capture attention. It lacked the usual descriptive title and route identification numbers that would have brought it to the notice of local legislators and citizens.

 

The bill was reported out of the senate rules committee on May 12, 1965, and on the same day received its second and third readings; it passed the senate without hearings or debate. Fifteen days later it passed the assembly, also without hearings or debate, and the next day was signed by Governor Rockefeller. A local assemblyman who tried to recall the bill, noting that the road would run through his district, was told he was too late; it was already being rushed by special courier to New York City for the Governor’s signature. Two state senators were later quoted as saying they had voted for the bill in error, believing it was just a routine highway study bill. One of them said, according to A. Q. Mowbray, “I have been deluded. I am ashamed.”

In his Road to Ruin (Lippincott, 1969), p. 160

Later, Assemblyman Lawrence Cabot went to see the Governor with an armload of protest mail as evidence that the expressway law should be repealed. “The governor just glanced at the mail,” Cabot said, “and listened to my report. Then he said to me, ‘That is odd. I haven’t heard a single objection to the expressway.’ He kept a straight face too. He added that he was determined to build the road.”

Rodgers, William H., Rockefeller’s Follies (Stein & Day, 1966), p. 179

At the same time, the legislature had quickly passed another bill rerouting existing Route 117, which already ran through the Rockefeller estate, to run farther north along the edge of Rockefeller property, eventually joining the proposed expressway at the river. This bill accomplished a long-lived Rockefeller ambition: in 1932, John D. Rockefeller, Jr., the Governor’s father, negotiated with local governments to move Route 117 out of his estate, but he balked at paying the cost himself.

Of course, with the elaborate system of law governing the Hudson River, neither the New York legislature nor the Governor had the last word. Among the protective devices available was the Hudson River Valley Commission, authorized to put a temporary stop order on such projects as the expressway and to hold hearings. The chairman of the commission, Alexander Aldrich, happened to be a cousin of Governor Rockefeller, by whom he—along with the other members of the commission—was appointed.

Chairman Aldrich wrote the following note to his cousin the Governor:

Judging from past performance, my instinct is that the Commission will want to hold a public hearing on the Expressway … I believe it is extremely unlikely that the Commission will disapprove the road in its final Findings. There is ample precedent for this kind of approval following a public hearing. … If all goes well, the chances are that the Commission will approve the road (possibly with some minor suggestions) on or about Friday, March eighth … I have discussed this time schedule with Bert Hughes [of the State Transportation Department] and he agrees that it sounds reasonable. … Public hearings [by the commission] … will not affect the construction schedule at all.

It came to pass precisely as Cousin Aldrich had predicted: the commission held a hearing, at which only two of forty-three speakers favored the expressway. One of those two speakers, president of a local conservation group, was thereafter repudiated by his own membership. The commission approved the expressway.

If Mr. Aldrich was not quite a detached person, there was still the Department of the Interior to rely upon. In January, 1968, Secretary Udall had a meeting with several representatives of Governor Rockefeller. Though Udall had opposed the expressway idea in 1965 and had been quoted in 1967 as saying that his position had not changed, he had not yet received any of the Interior Department studies in regard to the expressway required for the fulfillment of the department’s legal responsibilities. A memorandum to Udall from Director Edward C. Crafts of Interior’s Bureau of Outdoor Recreation, in preparation for the meeting, recommended that “you take the position that this requires an on the ground look by some top officials in the Department and that you neither favor nor oppose it at the present time. I think this would be tactically wise.”

At this point chronology becomes quite significant. On May 3, 1968, according to Harry Rice, assistant director of the Bureau of Outdoor Recreation,

… there was a meeting in Secretary Udall’s office, and he had been briefed by Director Crafts … on a study that had been made of the Hudson River Expressway and at this meeting in the Secretary’s office on May 3 … he asked the Secretary what his position was going to be on the Hudson River Expressway, and the Secretary hesitated for quite some time and then he said, ‘We will not oppose it.’
 

Had Secretary Udall seen any reports on which to base such a position? A Fish and Wildlife Service report was made for the Corps of Engineers as a comment on a land-fill application pending before the Corps. The Corps’ request for the report was made on April 22, 1968, and the Fish and Wildlife Service comments were finally furnished to the Corps in December of that year. The point is simply that the Fish and Wildlife Service study was still in process long after the Secretary announced to his staff that he was not going to oppose the project.

In addition to the Fish and Wildlife Service study, two Interior Department task forces reviewed the expressway proposal, principally from the perspective of recreation. The second task force was not even appointed until July 3, more than two months after Udall had decided not to oppose the project; it was headed by Harry Rice, one of the officials who had been present at the meeting of May 3, when Udall announced his position.

The status of the other task force was more ambiguous. It had been appointed as early as February, 1968, though its report was not filed until May 31. An assiduous effort was later made to discover whether Udall’s May 3 decision had been made prior to receiving any of the Interior Department studies of the expressway. The effort was not very successful, but Rice conceded that no Interior Department reports were discussed at the crucial May 3 meeting in Secretary Udall’s office. Although Udall had been “briefed” by Bureau of Outdoor Recreation Director Crafts on the forthcoming report, the New York State wildlife studies on which all Interior officials depended were not actually available until May 8. What did happen at that meeting, Assistant Director Rice described in greater detail as follows:

The Director [Crafts] indicated to the effect that time was running out on us, on the position on the application to dredge and fill. He more or less asked the Secretary what his position was going to be in point and time. The Secretary got up from his desk, walked over to the window and looked out and stood there for a moment, and then, finally, he said, ‘We will take a position of no opposition,’ and that was basically the entire discussion on the matter.

It seems a reasonable guess that Secretary Udall had other things on his mind that afternoon in regard to the expressway besides the studies that were—in any event —unfinished or nonexistent. And it seems a fair assumption that after the May 3, 1968, meeting, Interior Department employees studying the expressway were unlikely to feel much incentive to consider arguments against building it.

Even so, the Governor became impatient, and perhaps a little uneasy, judging from a telephone call that came to the Bureau of Outdoor Recreation on August 20, 1968, from Laurance Rockefeller. According to an Interior Department memorandum by a subordinate:

Mr. Laurance Rockefeller, in addition to being a director of the Hudson River Conservation Society and a trustee and founder of the Conservation Foundation, is also, according to Who’s Who In America , chairman, New York State Council of Parks; honorary chairman, citizens committee on Outdoor Recreation Resources Review Commission Report; trustee, American Committee for International Wildlife Protection; board of governors, Pinchot Institute of Conservation Studies; director, Resources for the Future; chairman, coordinator, White House Conference on Natural Beauty; commissioner, vicepresident, Palisades Interstate Park Commission; trustee, president, Jackson Hole Preserve, Inc.; trustee, president, American Conservation Association, Inc.; trustee, vice-president, New York Zoological Society; recipient, Conservation Service award, United States Department of the Interior, 1956; Special Conservation award, 1962; Horace Marden Albright Scenic Preservation medal, 1957; Gold Seal award, National Council of Garden Clubs, 1963; Audubon medal, 1964.

Mr. Rockefeller said that he was with his brother, Governor Nelson Rockefeller, and he was calling to find out the status of Interior’s review under the Hudson River legislation. … They wanted to be sure that Interior had not lost track of the application. He said that he understood the Corps was ready to move but could not do so until receiving Interior’s comments. He added that he understood Congressman Ottinger was putting great pressure on Secretary Udall to oppose the Expressway and implied that Governor Rockefeller was prepared to exert counter pressure if necessary. I told Mr. Rockefeller that the Expressway matter had not fallen between the cracks at Interior … Mr. Rockefeller said he was glad to hear that the matter had not been sidetracked and would convey the foregoing information to his brother. I told Mr. Rockefeller that I would inform the Secretary of his call.

Evidently, however, the Rockefellers were not reassured: some time later Secretary Udall told a journalist that he “had never felt such pressure” as he had felt from the Rockefellers on this issue, though he was at a loss to explain the Rockefellers’ insistence. According to Udall, “The whole thing was a matter of Laurance laying all his influence on the line.” And with Udall, as with many conservationists, Laurance Rockefeller has the stature and influence of a giant.

—Ed.

In any event, the matter had not fallen between the cracks. In JuIy, 1968, the Bureau of Outdoor Recreation had prepared a memorandum entitled “Benefits to Rockefeller Estate From the Expressway.” The memorandum noted there would be some benefits at least to Laurance Rockefeller, who owned a tract of land bordered by Route 9, the proposed expressway, and the rerouted Route 117. This conclusion was probably not welcome, for the Bureau’s director had asked for “what assurance I [Mr. Rice again] could give [my superiors], if any, that Rockefeller wasn’t receiving some benefit from the Expressway.”

In November, 1968, according to an Interior Department memorandum, Udall “made a … commitment to Governor Rockefeller that he would not oppose the application … for the expressway.” The Interior Department memorandum of November 14, 1968, an instruction for publicizing the Secretary’s position of nonopposition, indicates a certain defensiveness on Secretary Udall’s part:

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.