Maureen Koetz Explains VOG's Lawsuit on WBAI

Last week, VOG's own legal counsel Maureen Koetz addressed the VOG lawsuit and the many political and environmental issues that surround the Gowanus rezone with host Michael G. Haskin's on WBAI's radio program, "Living for the City."  Below, you can listen to the entire show, or read the transcript of Maureen's conversation with Michael. 


Read the transcript:

Michael Haskins: Well, I'd like to bring on my first guest now. Did the City ignore its own environmental laws, as well as others, when it aggressively pushed for the Gowanus  rezoning at the end of the de Blasio administration, shepherded by former council members, Steve Levine and now-Comptroller Brad Lander? While this is not a new question, rezoning opponents filed a lawsuit against the city just last month for violating both environmental and preservation laws. With me to discuss the community lawsuit is someone with whom our listeners should be familiar, sustainability and environmental  consultant Maureen Koetz, who is Co-counsel for the plaintiffs. Maureen Koetz, welcome back.

Maureen Koetz : Michael, thank you so much. It's always a pleasure to be with you.

Michael Haskins: Thank you. Thank you, Maureen. Well, alright. What are the basic arguments made in the lawsuit against the Gowanus Rezone? Let's start there.

Maureen Koetz : The primary focus of this lawsuit is that the rezoning process did not follow the State’s Environmental Quality Review Act. And it also violated several provisions of The Federal National Environmental Policy Act. And, as I'm sure your listeners know, both of those statutes, the state and the federal law, require the preparation of a legally compliant Environmental Impact Statement. And that was definitely not done in this case.

Michael Haskins: They were inadequate, to say the least.

Maureen Koetz: Totally inadequate. They failed to evaluate several overlapping, what I like to call geo-capital—air, land and water—asset issues that are present in the Gowanus at a very intense level. As we know, the Gowanus is a Superfund site, which means there is a vast amount of historic contamination in the canal, in the canal bed, and along the shoreline, and in the areas around the canal, as well as in the groundwater around the canal. In addition, the canal has been a repository for combined sewer overflow for decades. The Red Hook wastewater treatment plant, which serves the area, was one of the last  wastewater treatment plants to even be built. And up until the late 1980s, when it came into service, raw sewage was constantly being dumped in the Gowanus canal all day, every day. Now, there is sewage released constantly in rain events when the rain water mixes with the sanitary sewage coming from homes and businesses. And it's too much for the system to take, and the overflow discards into the canal. So the city has been in violation of the Clean Water Act for many decades on these combined sewer overflow violations. It's a Superfund site, there's an enormous amount of toxic material that has not been cleaned up, and then, on top of it, most of these issues were inadequately disclosed—inadequate information data was provided. And therefore, the Environmental Impact Statement was totally inadequate to support the decision to rezone 80 blocks.

Michael Haskins: Well, I'm just coming to grips with everything you just said. In thinking about, you know, the community in and of itself and all that what you just said entails, are inadequate cleanup and there are other environmental failures and I'm sure we could spend the rest of the program talking about it. But I'd like to move on here. Now, Maureen, the chief environmental attorney handling the case, Richard Lippes, has a long history of mitigating environmental disasters like Three Mile Island and Love Canal. Many of us are old enough to remember Love Canal. Yet, he called the Gowanus rezoning "an exceptionally egregious set of failures to comply with the law." That's a stunning description from someone who really should know, who does know. It is.

Maureen Koetz: It was. Some of the violations are not subtle, Michael. You know, it's not as if there were 10 years of data and we're arguing there should have been 12 or something, you know, kind of nuanced or marginal like that. The City, for example, absolutely failed to issue a findings statement, which is a non-negotiable. Under the law, you have to issue a findings statement, and you have to state all of the mitigating or controlling measures you're going to put in place. They did not give adequate data about the CSOs. The Federal EPA Region Two experts provided comments indicating the EIS was inadequate. 

But this goes to the larger problem, Michael, that your program and others have tried so hard to keep illuminating, and thank you for it. The City uses various public policy activities like a Trojan horse. So, affordable housing has become the Trojan horse to allow 1000s of gentrifying apartments to go into areas that can't sustain that level of development. The City uses environmental justice as a Trojan horse, especially in the case of Gowanus, when they're attempting to suggest they're rectifying some kind of historic injustice. In fact, they're perpetrating an even worse one. 

And bringing up Love Canal is so important because, there, Hooker Chemical Company had told a school district that an area was contaminated, and it really wasn't suitable for the kind of development  the municipality was planning, and they did it anyway. And we have something so terribly similar here, where the manufactured gas plant sites, which we know to be thoroughly toxic, and we know to be what they call operable units of the canal Superfund site. In other words, that's one of the sources where there's residual toxicity that's leaking into the canal water. They know that's there, and yet they're still planning to put affordable housing on those parcels. And how can you possibly pick the contaminated sites for the affordable housing, while you let massive, 30-story, high-end luxury apartment towers be built in the rest of the area, and say this is all about rectifying environmental injustice? You know, the mind just sometimes can't take the twistedness of it all.

Michael Haskins: And I'm so glad we were able to work together and allow people to understand. And those who don't understand, or are unfamiliar with Love Canal, I encourage them to look it up, and you did a really, really fantastic connection between the two. Because you know, what happened all of those decades ago is now coming back. We're revisiting that yet again. And who knows? What will be the outcome of that? Illness and sickness, probably.

Maureen Koetz : And if I could just make one more quick point, Michael. You know, Love Canal broke in the mid to late 70s. And then the Superfund law, the Comprehensive Environmental Response, Compensation, and Liability Act was passed in 1980. New York City did not disclose and identify its Superfund sites until 2010. The Gowanus and the Newtown Creek went on the Superfund, finally, and Coney Island Creek should be listed—they have scored their hazard levels score to be on the national priorities list, as it's called. And EPA hasn't listed it. And another site in Greenpoint only just got listed. And there's another site in Brooklyn with radioactivity. So New York City  has really been way behind the curve in owning up to its legacy toxicity. And failing to disclose that, I guess, you know, because we think it will impede development. But we just need to do a better job of coming to grips with how much residual contamination remains in New York City.

Michael Haskins: Well, I know we touched on this at the outset, we talked about the rezoning and the elements of it, the worst elements of it. Just flesh that out more, if there's more to say about the sewage controls, the Brownfield site location of affordable houses. Touch on that a little bit more before we go.

Maureen Koetz: Sure. Well, in addition to the overloads, to both the Owl's Head and the Red Hook sewer sheds, if you will, remember, downtown Brooklyn was supposed to have 4000 residential units. It developed about 12,000. There is also the development outside Atlantic Yards, Governor's Island is going to be developed. All of those sewage hookups have to go into the Red Hook system. And then there's a whole set going into Owl's Head. So these systems are already stressed. There's already more sanitary sewage and rainwater and stormwater going into them than they can take, and there is just tragically no more clear evidence of how inadequate New York City's sewage system is, than that it recently killed people. I mean,  when people are dying, because we cannot take care of sewage and stormwater in a rain event, we know we just can't walk away from this anymore or fail to understand it. 

And on top of that, the Gowanus is a flood zone. So, Michael, if you can picture that water is going to either come down from the sky, you've got stormwater, you've got sewage, you've got sea water—you know, just tides and those sorts of things—and sea level rise, and then you've got surges. So in all of those ways, water  is intruding into that area on a regular basis. And it makes sense. It used to be a salt marsh, it was really not intended to be the site of 30-story buildings. And so you have the basic issues as well, of handling both the stormwater and the sewage in conjunction with sea level rise and storm surges that are now more prevalent because of climate change. None of that was adequately evaluated in the EIS either. And, in fact, the idea that most of the large buildings are going to be as close to the canal as they will, it boggles the mind how this level of construction is going to go down into an area that is saturated with water, prone to flooding. 

And our biggest concerns are now with large buildings in the way, if you will, of the current drainage patterns, and they will all build themselves to have lower level controls, that means floodwater will be pushed around them and go up into the areas least able to handle it, like the Gowanus Houses, and other areas with people's basements and affordable housing that already exists. So the City just will not come to grips with how it's got to manage water, in conjunction with land. 

And then, on top of that, you have all the extra traffic and cars and congestion and air pollution and greenhouse gasses. All of these buildings are going to use gas for heat and hot water and cooking. So they will all be front-loaded with gas at a time when New York City keeps suggesting they're going to lower gas use and gas requirements. So the Gowanus is just this one contradiction of purported city policy after another. Whatever comes out of one side of the former de Blasio administration's mouth, the Gowanus rezone is nothing but everything coming out of the other side of their mouth, in terms of climate change policies, air pollution, water controls...all of it.

Michael Haskins: It certainly does seem that way. Maureen,  you also maintain the city's failures to conduct a proper EIS are applicable in general across New York. How so? And is it just regarding other upzonings only?

Maureen Koetz: Well, if I could take a minute to sort of talk a little bit about the fundamental systemics. I mean, we've traditionally always said "land use planning." But in fact, in order to use land, you also have to use water and air. And while land can be privately acquired—you can buy and sell land—most water and air assets belong to the public. They are effectively public trust assets. So in order for development or enterprise systems to succeed once they get hold of land, and then they want to build a building up into the air and run water through it, most of the time, those proposals have got to get their hands on public air and water. And in order to do that, they can't really tell the truth about the quantities they're going to actually use. Because those air and water supplies are controlled by the Federal Government. That's what the Clean Water Act and the Clean Air Act did—even though sometimes the authority to implement or  oversee is delegated back to the state. So the city doesn't really own a lot of the air and the water that it's appropriating and expropriating to private sector entities. So that's why EISs rarely give you accurate information as to just how much consumption and use and potentially degradation and harm are going to occur. I mean, if the city actually told the truth about the levels of sewage and stormwater, they'd be admitting to further violations of the Clean Water Act. So you have that going on all the time. 

This is just a way of making sure that you have inadequate analysis, so that nobody realizes how much you're picking the pocket of the public trust, and that's a huge issue. And so these EISs, have been inadequate for a very long time. I mean, we talked about Two Bridges on a previous show—that EIS was inadequate. But there's a more insidious pattern that we're noticing, Michael, and that is, rather than doing appropriate EISs, the city and the development entities go to the community first. And they try to get the community to trade away these assets in these sort of side deals, if you will. "I'll fix the elevator in the subway station, and you'll let me have the open space," or, "You'll let me have two more floors on a building with three more floors, or five more floors," which uses up more air and more light. 

And the Gowanus has got to be one of the most insidious of these kinds of agreements. They're totally ultra vires. Brad Lander signs an agreement he has no authority to sign. The people in the Gowanus Houses were promised $200 million to restore those houses. The city doesn't have that money. It's not in a budget line. The people authorized to spend it are not parties to the agreement. It's one of the most outrageous acts of malfeasance I've seen in a long time—to promise a community a whole series of things you have absolutely no authority to deliver. And no money.

Michael Haskins: No money.

Maureen Koetz: So that's why these EISs are so problematic. Because, you know, if you look at the history of the Gowanus—the Bridging Gowanus exercises, where community people were brought in, and they said, "Would you like a school? Okay, well, if you let us put three more  floors on top of the buildings, you can have school." “Oh, would you like this? Would you like that?” I mean, they made these people believe that these kinds of trades, they could just buy them off. Millions and millions of dollars worth of FAR, and airspace, and those sorts of things, were traded on the come for something that may or may not be delivered. And that is just the worst kind of...I'm not sure what it is. It's part bribery, it's part extortion, it's part fraud. It's just all terrible.

Michael Haskins:  Maureen, we're just just about out of time. But in the last couple of minutes we have I just want to try to squeeze this in. Yesterday, the World Health Organization released a report saying 99% of the world's population breathes poor quality air. Could you  speak to that before I ask you for some contact information, please?

Maureen Koetz:  Sure. Well, happily, in the United States, we have taken significant steps over the last several decades to alleviate a good deal of what was horrendous air quality in this country for a long time. But there are still major areas, like in cities that are near various kinds of industrial enterprise systems, that are still breathing poor quality air, and certainly people near the roads and transit lines—you know, the non-electric transit lines—are suffering from that continued air pollution. And that's one of the most important things that also has to be examined in these EISs. New York City has not reduced its greenhouse gas levels at all. And no matter what you hear about, and how many PLANYCs and ONEYCs, and and how much chatter boxing is done, the emission levels are not down. And New York remains in “non-attainment”—that's the Clean Air Act word for saying there's more pollution loading into the air than the standards of the statute allow. So while there has been some improvement, particularly in America, it's not done yet. And in the rest of the world, the situation is terrible, particularly particulate matter. There's still an enormous amount of fossil fuel use. There's still vehicular, not clean vehicles. So yes, we've got a long way to go.

Michael Haskins: A long way to go. Give us some contact information, Maureen Koetz. What can listeners do, etc?

Maureen Koetz: Well, I would encourage all listeners to support your local community organization, and the Voice of Gowanus is a marvelous group of just average citizens banding together to try to stop this juggernaut of rezoning Mayor de Blasio unleashed—well, certainly Mayor Bloomberg did quite a bit of it, too. You can go to the Voice of Gowanus website, and, if you're so inclined, please make a donation. They're working hard to afford the attorney in this case, who of course is very much helping out on a public benefit, but we all still have to keep the lights on. And Planet A Strategies has a website as well, And I can be reached at [email protected], if anybody would like to ask a question. And like I say, support your local community organizations— MTOPP, Planet A Strategies, Inwood community. There are just so many organizations—Lower East Side Organized Neighbors, they are all out there, doing the hard work