Waterfront: A Walk Around Manhattan (16 page)

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Perhaps longer than that, but we have no way of knowing, because the city's water quality only started being monitored in 1909. The Department of Environmental Protection announced in 2001 that New York Harbor was cleaner than at any time since monitoring had begun, and that levels of fecal coliform bacteria, which come from human and animal waste, had dropped 98 percent since 1974.

Curiously, very few sportsmen sought out stripers along the Hudson, in spite of the fact that, according to Boyle's 1969 estimate, the river held approximately 17 million striped bass, or 10 to 20 percent of the total run along the inshore Atlantic coast. The reason given was that Hudson River striped bass are reputed to have an unpleasantly oily taste, thanks to the refineries in Bayonne. Hudson River striped bass are still officially frowned upon as eating fish, because they contain harmful concentrations of PCBs. But the economic potential for striper angling in the Hudson River remained high. In any event, it was easier to offer a case defending this well-loved fish than the tomcod or hogchoker. (As it happened, striped bass stocks in the mid-1970s were declining nationally, and federal legislation was passed to protect them, making for an even stronger case to protect them in New York.) So the opponents of Westway put aside their study of mass transit and went about learning the migrating patterns of the striped bass.

Hudson River striped bass spawn somewhere around Peekskill. A female striped bass produces more than a million eggs, which are fertilized by dozens of thrashing males; parental care is minimal, the eggs left to their own devices. At a few weeks old, the fish are silver in color; later they sport checkerboard sides; later still, they acquire the pretty horizontal stripes of the adult. Though a few swim north, they rarely get above Troy, because they are stopped by the system of canal locks; the vast majority head south, toward the Atlantic Ocean and New York City. Striped bass don't mind urban environments; they rather like cities. What they mostly like is structure, something to latch on to. While the smooth, straight-ruled bulkhead engirdling Lower Manhattan would seem less latch-worthy than the original irregular coast, the downtown piers have come to offer a satisfying substitute.

The piers act like marshes, interrupting the flow of water and creating backwaters. For fish, the best parts of piers are the edges, which help bring about an “ecotone,” an interface where habitat types can mix. The old
finger docks of Manhattan were ideal for this purpose, because they were mostly all edge, and they did not have large platforms that would plunge the water underneath them in shadow. Fish tend to stay away from large pier structures: the darkness may scare them away, or else they prefer swimming in lighter waters where they can see their food and elude predators.

The so-called “interpier” area of the Hudson River, which the Westway landfill intended to occupy, was dotted with obsolete, deteriorating finger piers. The proposed Westway tunnel would be built out to the pier line, eliminating these piers. The first Westway survey ordered by the Department of Transportation found few fish in the harbor. But a second, taken during the winter months of 1979, determined that a diverse fish community did exist in the interpier area; that the striped bass present in that area were primarily in their first year (so-called “young-of-year”) and second year of life (“yearlings”); and that a combination of adequate food and structural shelter seemed to have created a suitable winter habitat for these maturing, migrating stripers. A statistical spike in one area indicated that a population of striped bass was harbored in precisely the portion of the river slated for occupation by Westway.

From this point on, the hard science gets a little hazy. To begin with, patterns of fish movement and abundance are notoriously difficult to study. The fluctuations in population and distribution from season to season; the impact of weather—a mild winter versus a severe one, say—on the sample size; the techniques for collection, with the variants of depth distribution (bottom trawling as opposed to setting minnow traps, either one of which may privilege one species over another); the use of mathematical probabilities to determine best-case/worst-case scenarios, all may lead to very different results, and did, depending on who was doing the study.

With billions of dollars at stake, each side used the figures that best suited its argument. To the anti-Westway coalition, the discovery that young striped bass seemed to hang out at an interpier area in lower Manhattan indicated it was a crucial stopover, a “winter resort” in their migration to the ocean, allowing them to rest, conserve energy, and fatten up. To Craig Whitaker and other Westway proponents, the explanation
was that striped bass liked garbage, and the only special lure of the inter-pier area was a sewage outflow that happened to be located there.
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Scientists on both sides recognized that the project-mandated experiments would have neither enough time nor funding to settle the point: a soupçon of science was being used to buttress a public policy decision. John Waldman, who was just starting out then as a young ichthyologist, recalls the Westway fish studies as both heroic and frustrating, because they were methodologically flawed. The U.S. Army Corps of Engineers kept maintaining that it had enough data, and issuing landfill permits, while the anti-Westway attorneys kept going back to court and obtaining delays, on the basis that not enough information had been collected. Two winters at minimum would be necessary for an adequate comparative study, at a direct cost of $9 million (and an additional $60 million for project delays). Above and beyond amassing sufficient data, it was in the interests of those opposed to Westway to stall. “The longer this thing is left out in the street,” Ed Logue phrased it, “the more it's going to get kicked.”

Delays had another negative effect on Westway, driving its projected budget up, as construction costs soared in the boom years of the eighties. Had the highway been built when it was first proposed, it would have cost slightly over a billion dollars. By 1984 the projected costs had risen to $2 billion, still able to be entirely funded by federal and state agencies. From this point on, however, the more construction costs rose, the greater the risk that the city would end up incurring some financial burden. As it was, the cost of the unbuilt Westway totaled over $200 million in planning, studies, lawsuits, and other fees, including an $80-million check that President Reagan released for New York State to buy the right-of-way from the city, which was never retrieved by the federal government, but which laid the groundwork for the Hudson River Park Trust.

The battle of Westway ended in the courtroom, as the same judge, Thomas Griesa, who had decided that the proposed highway did not present an additional air-pollution threat, ruled that it might endanger the
striped bass. Judge Griesa twice revoked the Army Corps of Engineers' landfill permits, in 1982 and 1985. And he did so, a reading of his brisk, scathing 1985 decision suggests, in part out of annoyance with the Corps's military-bureaucratic style, which he took to be evasive, bumbling, and dishonest.

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“Silvery, sleek, and muscular, striped bass love to hunt by sewage outfalls, enjoy bumping and harassing commercial divers, and weigh anywhere from twenty to sixty pounds….” (Anne Matthews,
Wild Nights
)

Here we need to consider the internal culture of the Army Corps of Engineers. The Corps likes to build—it has an ethos sympathetic to large construction projects. Environmentalists had long felt that the Corps was reluctant to enforce antipollution statutes; its tendency was to stonewall the public and show obeisance to top industry officials. At times a cozy revolving-door employment policy existed between its officers and large contractors. In the matter of Westway, appearances were not helped when, in 1982, the Corps's district engineer, Colonel Walter Smith, after having decided that no new fish-sampling program in the Hudson would be necessary and that he was ready to grant a landfill permit, was discovered to have been seeking employment with the main engineering consultant for Westway.

Colonel F. H. Griffis was appointed to replace the retiring Colonel Smith as New York district engineer, and Griffis recommended a two-winter sampling study. But the Corps's problems with Judge Griesa did not end there. He found it in violation of the Clean Water Act because “the Corps simply ignored the views of sister agencies that were, by law, to be accorded great weight,” acting instead “from an almost fixed predetermination to grant the Westway landfill permit.” (The sister agencies he was referring to were the Environmental Protection Agency, the Fish and Wildlife Service, and the National Marine Fisheries Service, all of whom had submitted objections to the landfill permit.) The judge criticized not only the Corps, but the Federal Highway Works Authority and the State Department of Transportation for their skimpy recordkeeping, and their inadequate public disclosure of materials detrimental to Westway.

Finally, Judge Griesa went tooth-and-nail after discrepancies between the Corps's preliminary environmental impact statement, which had found “significant” use by young striped bass of the interpier area, and the final environmental impact statement, which dismissed possible harmful effects of the project on the fish as “minor.” Though the Corps's scientists
tried to explain that they had been using the word “significant” only in the narrow sense of “statistically” significant, meaning it was “measurable” if minor, not in the broader, layman's sense, the judge remained unconvinced; he smelled a cover-up.

He was particularly incensed by the testimony of one government witness, William Dovel, who had developed the Corps's theory that the juvenile bass used the interpier area only briefly in the course of migrations out of and back into the river. Finding Dovel's wobbliness on the witness stand “bizarre,” Griesa let him have it: “Dovel's testimony is a collection of assertions so irresponsible that it is shocking that the Government ever tendered him as a witness.” Part of what made Dovel unreliable in the judge's eyes was that he seemed to have changed his mind regarding where the juvenile bass were overwintering, and acknowledged that his ideas were only “tentative hypotheses.” But it did not help Dovel's credibility that he too had been caught in a conflict of interests: he had gone to Laurance Rockefeller's office, requesting funding for the preparation of a report on striped bass. “Dovel said that it could be most beneficial for Westway and that ‘Westway could use it,’ ” Griesa summarized witheringly.

Against this background, Al Butzel, counsel for the Sierra Club, was able to raise a suspicion of self-interest and pro-development advocacy on the part of Westway's scientific hired consultants. In this David-versus-Goliath case, pitting feisty citizens' groups against state and corporate power, the anti-Westway witnesses were then seen as disinterested public servants. Judge Griesa had high praise for Frank DeLuise of the Fish and Wildlife Service and Michael Ludwig of the National Marine Fisheries Service: “There is no question about the honesty of these witnesses and the high degree of expertise they possess. Their knowledge of the relevant subject-matter is indeed profound.”

The lawsuit has become the great equalizing tool for environmentalist causes. “Only in a courtroom,” said Victor Yannacone, attorney for the Environmental Defense Fund, “can a scientist present his evidence, free from harassment by politicians. And only in a courtroom can bureaucratic hogwash be tested in the crucible of cross-examination.” In this case, however, the courtroom process seems to have exaggerated the gap between the reliability of pro- and anti-Westway scientists. Shades of opinion, contradiction
fueled by self-doubt, and principled uncertainty came out looking like “bureaucratic hogwash” and hypocrisy.

I spoke to Dennis Suszkowski, who had been a geologist at the Army Corps of Engineers for thirteen years, and who helped prepare the Corps's Westway case. Suszkowski is a thoughtful, undogmatic man who now works for the Hudson River Foundation, an environmental group focusing on research. The picture he presents of the Corps is not nearly as monolithic as Judge Griesa assumed. Suszkowski himself was against Westway at the time, on the grounds that there were viable cheaper alternatives, and his then-boss, Colonel Griffis, also seemed opposed to the project at first, before reversing himself and approving the landfill. Suszkowski thought Judge Griesa had developed a bias against the project. Where Griesa saw possible collusion, Suszkowksi saw ineptness. Thus the judge interpreted the difference between the language in the preliminary Environmental Impact Statement and the final EIS as suppression of evidence, while Suszkowski thought it was simply that the preliminary EIS had been poorly written, confusing, and never should have been released. In the report's final draft, the language got sharpened and improved, not censored.

In Suszkowksi's opinion, Westway was the last of the dinosaurs: it emerged from the age of big projects and stepped into the regulatory age. Its problem was not striped bass so much as bad timing.

Craig Whitaker winced when I told him that. “No, we weren't the
last
of the dinosaurs, I like to think we were the first of the environmentally conscious projects.” Lost in the denouement, he felt, had been the state's offer to invest as much as necessary to ease any impact Westway might have on the striped bass, by driving piles, dredging shallow basins, and sinking steel and concrete “fish houses,” even making artificial habitats or piers for the fish to congregate in, at a cost of over $52 million.

John Waldman acknowledged that he didn't think Westway would have necessarily harmed the striped bass, but he still didn't want the landfill. Where a good fish habitat exists, why risk destroying it? Mike Ludwig freely admitted to me that there were competent scientists on both sides. “It was an honest difference of opinion—we're still friends. But my side won and theirs lost.”

Given the fact that Manhattan had so often resorted to landfill in the
past, and the fish kept adapting to its shoreline's evolving profile, how can we know, I asked Ludwig, that the striped bass wouldn't have made an adjustment to Westway?