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Assessing Mayor Bloomberg’s ‘Plan 2030’

New York Law Journal

June 29, 2007
by Stephen L. Kass and Jean McCarroll

On April 22, 2007, New York City Mayor Michael R. Bloomberg announced an ambitious long-range plan to address the city’s environmental and infrastructure challenges through a series of capital investments, operating reforms and regulatory initiatives - collectively termed PlaNYC - intended to make New York an exemplary urban environment by 2030.

While PlaNYC received many press kudos, public attention has focused largely on a single component, congestion pricing for Manhattan-bound vehicles.

This column attempts a preliminary assessment of the major components of PlaNYC, including congestion pricing and prospects for its implementation. A subsequent column will consider whether, as Mayor Bloomberg hopes, PlaNYC can become a model for major cities throughout the world, many of which face challenges far more severe than New York’s.

PlaNYC blends existing programs and projects with a series of new initiatives relating to land use (housing, open space, brownfields redevelopment), water (quantity, quality and recreational use), transportation (traffic, transit and bicycles), energy, air quality and climate change (solid waste disposal is not included in the plan). Although the existing programs and projects are already under way or simply lack funding for their completion, PlaNYC does a service by including them as part of a coherent strategy to enhance the urban environment, rather than leaving them as isolated parts of a political wishlist left over from prior administrations. The new proposals generally represent serious efforts to address New York’s long-term environmental challenges, though some proposals may conflict with each other. The principal challenge to their realization will be finding assured long-term funding, as well as continuing public and political support to implement them.

While there will be ample opportunity to debate the substance, financing, equity and public review procedures of both old and new components of PlaNYC, the plan as a whole is, in our view, more significant than the sum of its parts. By integrating both old and new proposals into a single long-range vision for New York’s environment, a vision intended to complement the city’s long-range commercial and educational goals, PlaNYC can also, if implemented, help to advance an environmental justice agenda that has long been stalled in New York and other cities. While there will still undoubtedly be gaps, including environmental gaps, in the urban fabric, PlaNYC does represent a serious promise from one generation of New Yorkers to the next to pass on a livable city.

Land Use

Housing. PlaNYC’s housing initiatives call for publicly initiated rezonings to direct growth toward transit-accessible locations. This section of PlaNYC does not differ materially from existing city policy (as in Brooklyn’s Atlantic Yards project), but extends a long-standing preference for the location of major office developments near transit. PlaNYC also seeks to add 500,000 new units of housing (for 900,000 people) by creating new “land” over highways, railyards and other publicly owned property; adding transit spurs to make existing land more attractive to developers and more accessible to residents; encouraging adaptive re-use of schools, hospitals and city buildings; and expanding the use of inclusionary zoning for affordable housing units outside of Manhattan. Rather than controlling the price of housing, this effort seeks to expand supply, including affordable supply, in order to mitigate (and in some cases harness) the dynamics of the city’s booming residential market. Curiously for a city that pioneered the development of public and publicly subsidized housing, PlaNYC makes little or no provision for such housing, other than through its suggested decking over of MTA railyards and selected city streets for privately sponsored housing.

Open Space. Among the most ambitious of PlaNYC’s goals is that of providing a park or playground within a 10-minute walk (a half-mile for most adults) of 99 percent of New Yorkers by 2030. In addition, the plan promises to provide at least one public plaza in each of the city’s 59 community boards; to complete and upgrade major parks in every borough; to open school yards as public playgrounds for 360,000 children; and to plant 23,000 new street trees annually. No funding mechanism is specified for these admirable goals or for the upkeep of these new public open spaces, a potentially serious omission in view of the recent Citizens Budget Commission report sharply criticizing the city for its failure to adequately maintain parks in low-income neighborhoods.

Brownfields. The city hopes to work with the New York State Department of Environmental Conservation (DEC) to revise soil standards and remediation guidelines for the city that better reflect actual urban soil conditions and site-specific remedies tailored to New York City, including: (1) on-site, below-grade reuse of historic urban fill; (2) site-specific exceptions for vapor barriers and associated indoor air quality testing; (3) elimination of drinkable groundwater standards where groundwater is not used as drinking water; and (4) the use of dredged sand as clean fill at brownfield sites. While DEC’s current practices make brownfields development far more difficult in the city than in smaller upstate communities, special standards tailored to New York may raise both feasibility and environmental justice issues. If contaminated soil is most prevalent in low-income industrial areas, more flexible soil standards may result in increased health risks for people living in those areas, risks that may be balanced against the overall health and environmental benefits of brownfields development but which may nevertheless be real for children and other neighborhood residents.

Transportation

The heart of PlaNYC’s transportation plan is its three-year pilot congestion pricing plan. However, PlaNYC also includes an expanded bus rapid transit program, more frequent MTA commuter rail service in the Bronx and Queens, new commuter ferries, as well as support for MTA’s Second Avenue Subway, East Side Access and No. 7 Subway projects, for New Jersey Transit’s ARC tunnel to midtown and for the new Moynihan Railroad Station. All told, PlaNYC proposes spending some $50 billion on transportation improvements by 2030, with the funds to be provided by the city, the state and the new congestion-pricing revenue stream administered by a new Sustainable Mobility and Regional Transportation (SMART) Financing Authority.

The congestion pricing plan, which requires approval by the state Legislature, draws heavily on London’s and Singapore’s efforts to reduce central city traffic congestion and air pollution by charging substantial fees to autos and trucks entering the central business district (CBD) on weekdays. PlaNYC’s “illustrative” pilot program includes an $8 daily charge for cars ($21 for trucks) entering Manhattan’s street grid south of 86th Street between 6 a.m. and 6 p.m. The CBD fee would not apply to emergency vehicles, taxis and “black cars” or vehicles with handicapped plates. Trucks with new or retrofitted emission controls would pay $7 per day, and cars driving only within the CBD would pay $4 per day. Vehicles using peripheral roads such as the West Side Highway, West Street, the FDR Drive and 86th Street itself would not pay any congestion fee.

No toll booths or gates would be erected at CDB entry points. Instead, administration of the CBD congestion fee would rely largely on the existing E-Z Pass program, which 70 percent of current daily drivers use. High-speed sensors would be installed at all CBD entry points (and presumably within CBD as well), and E-Z Pass drivers would be billed monthly for the congestion charge (a driver paying a bridge or tunnel toll could credit that day’s payment against the $8 CBD charge). Drivers without E-Z Pass would be billed on the basis of their license plates and would have two days to pay by telephone or internet or in person at designated retail outlets.

Will this work, and, if so, with what consequences for the city as a whole? The PlaNYC sponsors believe the CBD charge will reduce traffic both within the CBD and on the principal outer-borough arteries leading to Manhattan (such as Flatbush Avenue and Queens Boulevard), reduce citywide air pollution, improve travel times within the CBD, increase the efficiency of city businesses and generate significant sums for transit improvements to accommodate the expected mode shift of Manhattan-bound commuters.

Skeptics have questioned the city’s ability to credibly enforce the program (particularly against drivers without an E-Z Pass), chafed at the prospect of thousands of cameras throughout the CBD and expressed concern that CBD entry points in Manhattan and other boroughs will be flooded with commuters seeking parking spaces (leading to demands for neighborhood parking permits of the type the city has historically resisted). Our own concern focuses on the relatively low daily CBD charge of $8 (less bridge or tunnel tolls), which simply may not be enough to deter drivers already paying $3.25 a gallon for gasoline and $20 or more for parking in midtown or downtown. Moreover, the CBD charge is likely to be ignored by many U.N. diplomatic and consular cars that, emulating the U.S. embassy in London, assert sovereign immunity against such “taxes.”

Air Quality

Building on its congestion pricing scheme, PlaNYC’s air quality program attempts to deal with mobile source air pollution by requiring all new taxis to be hybrids (more expensive to buy and repair but significantly cheaper to operate) and reducing fine particulate (PM2.5) emissions from trucks, school buses and ferries by encouraging use of particulate filters, oxidation catalysts and biodeisel fuels - an ambitious but expensive program that the city has only limited authority to compel. For stationary sources, the most important reforms that the city has authority to require are the use of low-sulfur heating oil (rather than standard No. 2 oil) by residential and commercial buildings (which collectively emit the largest share of locally generated PM2.5) and replacement of antiquated school boilers that currently burn No. 4 or No. 6 oil.

Energy

Energy regulation is largely the purview of state and federal agencies. Thus, PlaNYC’s energy agenda focuses, as it should, on steps the city can take to reduce both governmental and private energy demand through strengthened building codes, distributing compact fluorescent bulbs, peak load management programs, “real time pricing” and similar efforts. PlaNYC also proposes to expand the city’s energy supply by 2,000 to 3,000 megawatts by 2015 through new plant construction, “repowering” the oldest existing plants and building new transmission lines to dedicated power sources outside the city. These are reasonable objectives but do not always match other city or state priorities, including pending state legislation that would severely restrict (or extend the licensing process for) even the cleanest new power plants in the city.

 Climate Change

PlaNYC calls for updating the city’s 100-year flood maps to reflect the higher sea level and more severe storms associated with global warming, which will expose more of the city’s 600 miles of coastlines to erosion and flooding. The economic effects of the map update will include increased flood insurance premiums and likely increased building costs. More significantly, PlaNYC recognizes that, with continuing sea level rise, a Category 3 hurricane could have devastating effects not simply on coastal areas but on the city as a whole, requiring the evacuation of up to three million people. To try to manage this risk, the city will create a disaster preparedness task force and solicit proposals for readily deployable emergency housing for a two-year period. Whether these plans also include new barriers, levies or pumping facilities for the most vulnerable coastal areas, including Lower Manhattan, is not yet clear.

Water Quality

PlaNYC’s water quality proposals contain some welcome commitments to improve coastal water quality by reducing combined sewer overflow (CSO) discharges to the Hudson, Harlem and East rivers, Long Island Sound, Jamaica Bay and New York Harbor. In addition to preparing “Long-Term Control Plans” for its 14 sewage treatment plant watershed areas and expanding capacity at the Newtown Creek, 26th Ward and Jamaica treatment plants, under PlaNYC, the city will, at long last, begin to separate stormwater from sewage flows by installing high-level storm sewers (which direct storm runoff directly to receiving waters instead of to treatment plants) in the Hudson Yards area of Manhattan and, if practicable, at the Bronx Terminal Market, the Queens West development, Gateway Estates in Brooklyn and Columbia University’s expansion project in Northern Manhattan. PlaNYC also commits the city to explore increased stormwater storage capacity in street medians, to encourage green roofs and to require greater water storage capacity in commercial parking lots. The plan does not appear to provide for the type of oil and grease separators conventionally used in many smaller communities to filter stormwater before it is discharged to receiving waters.

With respect to water supply, PlaNYC’s proposals include completing Water Tunnel No. 3, the Croton Filtration Plant, a UV disinfection plant for the Delaware and Catskill Aqueducts and a backup tunnel connecting Staten Island to Water Tunnel No. 2. The plan also promises to explore a variety of backup sources, including groundwater, to meet potable water demand if the city’s Delaware Aqueduct is shut down. This proposal to use groundwater as a future drinking source may run counter to PlaNYC’s proposed brownfields program, which contemplates eliminating DEC’s current practice of requiring remediation projects to protect groundwater by meeting potability standards.

SEQRA Review

PlaNYC contains virtually no mention of the type of environmental review, if any, to which its multifaceted proposals will be subject, or of any public participation in that review (though some community groups reviewed the plan’s draft recommendations). Yet the applicability of the State Environmental Quality Review Act (SEQRA) and its city implementing procedures (CEQR) to parts of PlaNYC seems clear. It would be useful for the city to begin sorting out, if it has not already done so, precisely how and when it proposes to carry out any SEQRA/CEQR reviews for the plan’s various recommendations.

Several other things seem clear. Despite PlaNYC’s release as a single coordinated “plan,” neither SEQRA nor CEQR requires this entire set of complex proposals to be analyzed in a single environmental impact statement (EIS). Such an undertaking, even in “generic” form, would paralyze both city and state decision-making. It is also clear that many elements of PlaNYC would either be exempt from SEQRA review as Type II matters (e.g., as ongoing administration of agency programs) or would require federal or state licensing or permits (new power plants, transmission lines or sewage treatment facilities).

One likely exception is PlaNYC’s congestion pricing proposal, which requires approval by the Legislature, which, says the plan, “would also need to specify the type of environmental review that would be necessary.” Since action by the Legislature is already exempt from SEQRA and action by the city is subject to SEQRA, this language suggests that the city may be seeking authority for a special form of environmental review for its congestion pricing plan, perhaps in the form of an expedited EIS or a shortened judicial review procedure. Previous developer suggestions along these lines following 9/11 were abandoned as unnecessary or unwise since SEQRA has proved sufficiently flexible, and courts sufficiently pragmatic, to permit the normal review process to proceed without compromising important public initiatives. There seems little reason to abandon that approach for PlaNYC and many reasons for the city to demonstrate that its imaginative long-range environmental plan for New York can be carried out in full compliance with New York’s most important environmental law.


Stephen L. Kass and Jean M. McCarroll, together with Clifford P. Case III, direct the environmental practice group at Carter Ledyard & MilburnMichael Plumb, a student at Columbia Law School, assisted in the preparation of this column.

Reprinted with permission from the June 29, 2007 edition of The New York Law Journal
© 2007 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.



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