HKNA enviro lawsuit vs. Bloomberg moves to court

Volume 1, Number 33 | The Weekly Newspaper of Chelsea | May 4 - 10, 2007

By Chris Lombardi

Last Friday, the case of Hell’s Kitchen Neighborhood Association v. Bloomberg et al began its path to a federal courtroom. The lawsuit, in which HKNA alleges that the city and state violated the federal Clean Air Act by mandating more parking spaces as it rezoned Hudson Yards, had been blocked for two years while both the city and state tried to have it dismissed.

Last Friday, on their first case conference before Judge Sidney Stein, of the Southern District of New York, lawyers for the state presented 65 pages of documentation to illustrate that they are not in violation of the Act, while the New York State Department of Environmental Conservation (DEC) just this month set in motion a proposal to remove references to parking from the state’s compliance plan—known as the State Implementation Plan, or SIP—stating that parking restrictions are not legally woven into that plan.

While reluctant to discuss actual details of the case, HKNA co-founder Christine Berthet and the association’s attorney, Antonia Bryson, contend that the city and state’s position is short-sighted, not thoroughly supported by their own documentation and out of step with the newer environmental initiatives of both Governor Spitzer and Mayor Bloomberg.

Interviewed on Monday, Berthet told Chelsea Now that she was pleased with the proceedings. “We are going forward now with discovery,” the phase in which each side asks the other for documents, such as affidavits or records, relevant to the facts of the case. Bryson, however, cautioned that this was just the beginning: “We have tons of paper going back and forth for the first few months.”

Just prior to Friday’s case conference, New York State Assistant Attorney General Janice B. Taylor sent Judge Stein a thick sheaf of paperwork from the New York State Department of Environmental Conservation (DEC). Two-thirds of the file were charts with daunting names like “NYMA Carbon Monoxide (CO) Monitored Value” and “Continuous Non-Dispersive Infrared,” all meant to demonstrate one key point: that carbon monoxide levels in New York City, which exceeded federal levels in 1979 when the SIP was first drawn up, “have steadily declined, from 13.5 ppm [parts per million] in 1988–89 to 2.5 ppm in 2004–2005.”

The state’s packet also included an April 5 letter from DEC Deputy Commissioner Carl Johnson to the federal Environmental Protection Agency (EPA), requesting that the SIP be “clarified.” Johnson stated that since parking had not been studied or monitored when the SIP was revised in 1992, parking was no longer a true, integral part of the city’s legal obligations under the Act, unlike traffic control measures and emissions standards. In any event, the letter continued, off-street parking is regulated not by DEC but by the city’s Department of City Planning, and “Modification of NYCDCP zoning policies is not a contravention of a SIP commitment.” In other words, parking restrictions instituted by the city in response to a Clean Air Act lawsuit cannot be regarded as legally binding, since they were included by the city itself as an element of its own, complex pollution-control strategy.

Berthet’s response to the news from DEC was twofold. She told Chelsea Now this week that she was highly suspicious of all the carbon monoxide data, much of which seemed more to apply citywide than directly to the Hudson Yards District. And she sighed when she spoke of DEC’s upcoming public hearing on the issue, scheduled for May 23 at the agency’s Region 2 office in Long Island City. “What this means,” she said with a shrug audible over the phone, “is that next week I will have to get a lot of data out to a number of organizations.”

The DEC’s public announcement of the hearing mentions none of the jurisdiction issues above, just repeating that “the removal of a reference to a limited off-street parking program imposed and enforced by the City of New York from the CO SIP will not jeopardize attainment because ambient levels are well below the NAAQS and trending downward.”

Asked about the DEC’s assertion that the zoning changes are fine, attorney Bryson sighed. “When measures are already in place to contain traffic, and the levels are now so much better, it makes little sense to remove such measures because you want something else,” she said on Monday. “And besides, this case is not just about carbon monoxide. It’s also about ozone,” which is also impacted by automobile traffic. And as Mayor Bloomberg mentioned in his Earth Day speech last week, the city’s ozone levels still exceed Clean Air Act limits.

Both Berthet and Bryson expressed hope that new DEC commissioner Pete Grannis, a former Upper East Side assemblyman with strong ratings from the New York League of Conservation Voters, will bring a fresh look at the facts amid Governor Eliot Spitzer’s new environmental initiatives and Mayor Bloomberg’s recently unveiled PlaNYC sustainability proposals. In the meantime, Bryson, Taylor and the other attorneys involved in the case will continue to trade sheafs of paper and prepare for an actual civil court proceeding. “By late June,” said Bryson, “we’ll have a better idea of what we’ve got.”)