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Making NEPA Work: Rebuilding the World Trade Center

July 2009

Citation: 39 ELR 10636

Issue: 7

Author: Stephen L. Kass

While environmental lawyers recognize that there is no contradiction between meaningful environmental review and timely completion of important public projects, there has been widespread concern that compliance with the National Environmental Policy Act (NEPA), and in particular NEPA's requirement for an environmental impact statement (EIS), will frustrate or even derail the major infrastructure projects that are central to President Barack Obama's stimulus program and the nation's economic recovery. However, one well-known project for which we served as environmental counsel--the redevelopment of New York's World Trade Center (WTC) site following the September 11, 2001, terrorist attacks--demonstrates that it is feasible to complete even a highly complex environmental review, including a comprehensive EIS, within a one-year period that matches, or even precedes, the project's construction schedule.

As the attached NEPA compliance schedule shows, the lead agency for the WTC's NEPA review was actually a New York State agency (the Lower Manhattan Development Corporation (LMDC)) wearing a "federal" hat as a grant recipient from the Department of Housing and Urban Development (HUD) under the Community Development Block Grant (CDBG) program, which makes the recipient responsible for both NEPA reviews and the historic preservation requirements of §106 of the National Historic Preservation Act (NHPA). Because New York also has its own EIS and historic preservation statutes, LMDC was actually operating under four separate environmental review statutes (NEPA, NHPA, the State Environmental Quality Review Act, and the State Historic Preservation Act), as well as the project planning requirements of the New York State Urban Development Corporation Act and the condemnation requirements of New York's Eminent Domain Procedure Law.

Stephen L. Kass is a partner in the New York office of Carter Ledyard & Milburn LLP.

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