Letter to the Bureau of Indian Affairs
March 28, 2005
Franklin Keel, Regional Director
Bureau of Indian Affairs
Eastern Regional Office
711 Stewart Ferry Pike
Nashville, TN 37214
Attn: Kurt Chandler
Dear Mr. Keel:
Thank you for letter of March 18 with regard to my comments of March 10 on the Draft Environmental Impact Statement for the Stockbridge-Munsee Casino. While the window for comment is still open, I wanted to raise issues that are enabled by your timely and thoughtful reply.
Please update your response taking these further comments into consideration:
- You note that your traffic assessment is based upon NYDOT data. In particular, this data finds that there is “sufficient capacity …for…projected traffic in the region.” I am not familiar with the document cited and did not see the document in your bibliography. However, this document is woefully out of date. All residents and passers-through to the region are aware that there is a poor LOS for Friday evenings and Sunday afternoon and evening, precisely the points when casino impacts will be greatest. Similarly, the LOS is often poor on weekday commute mornings or when weather is even slightly inclement. Since I commute on this road, I know this to be a fact. The DOT data is wrong.
Today you will receive the submission from Orange County Department of Planning, which also provided data that OEI relied upon in the Mohawk application. This data supports my analysis and shows the DOT data you cite to be wrong. Projections by Orange County of future impacts to the Rt 17 corridor even without the casino show congested conditions. It will take much less than the twenty five million cumulative casino trips per year projected will bring the system to a total halt. Separate analysis by NRDC that I assume is being submitted to you confirms the same conclusion. For the FEIS, therefore, the BIA must take a hard look at this issue and consider current studies, such as the recent study undertaken by Orange County for the southeast corner of the county.
- You indicate that the contribution of the toll booth and growth overriding adequate roadway capacity in Orange County on Rt 17 are not subject to the control or influence of the BIA or the tribes. This statement is true. However, you omit the implications of this information—namely that it represents a baseline condition for the roadway that the Stockbridge Munsee DEIS says will carry 75% of the casino traffic. If there is no baseline capacity for a cluster of facilities promising a major dependency and impact on this road corridor, then NEPA demands that you either mitigate the impact (i.e., make any casino approval conditional upon installation of rail or another means of addressing the lack of capacity) or deny the permit. In sum, you are not responsible for the condition. But you certainly are responsible for assessing the condition accurately and taking it into account in determining impacts and mitigations and whether the permit can and should be issued. You cannot escape that responsibility.
- As to the issue of a 5% increase in traffic being significant, Orange County projects a much greater increase. Nevertheless, staying with this estimate, you err in assuming that a 5% increase is not significant. That increase on a roadway lacking capacity or having heavy local demands is quite different than such an increase for a highway having excess capacity and minimal demand. Your analysis of Rt 17 is inadequate currently and does not allow you to draw a conclusion of insignificance. Furthermore, your discussion of projection error is not a strong consideration. The estimates for cumulative casino traffic impact vary, but are never insignificant. The DEIS makes very conservative estimates to begin with. Statistical error cuts both ways. Yes, the impact may be less than estimated in reality, but it also may be greater. Particularly given the flawed DOT data you relied upon, your entire traffic study needs to be redone.
Please note that I am a Ph.D. in Social Psychology, I am a social impact assessor and I teach Impact Assessment. If you wish to examine your work for potential error, I would be happy to walk you through a full analysis. I am afraid that your error is stacked against precaution, precisely the opposite of where science deems it should be.
- You assume that the tribal compact with the state provides more than enough money to pay for road improvements. First, we believe that road improvements, per se, will not address the problem at hand. Orange County has suggested addition of a third lane to Rt 17 in Orange County. However, while that addition may be necessary, it will not address the traffic problem since roads congest around nodal points, around heavy intersections, and around hazard points (Rt 17 congests in the morning in part because it faces east into the rising sun). Roads are well known to outgrow their improvements quickly. Furthermore, the CAA noncompliance issue may well impede or prevent road improvements. The challenge is to decrease traffic not to increase it. Finally, if you wish to argue that impact funds provided to New York will serve to mitigate impacts, then it must be stipulated in your decision that New York (and/or the tribes) are required to dedicate funds sufficient for this purpose. Otherwise, there is no reason to assume that the state will deploy funds to mitigations in Orange County. Rather, the mitigation needs to be firmly in place before the impacts occur with dedicated funds available to enhance the mitigation if impacts exceed mitigated capacity. Since rail, or some other means of removing vehicles from the Rt 17 corridor, is the only suitable mitigation given CAA, your state funding does not address the remedy in any case.
- I quite agree that impediments to traffic flow, such as the toll booths, should be removed. However, I lack the ability to achieve this. You, however, can make this a condition of any decision. Absent any way to achieve removal of the tolls, you must assume that the impediment exists as a baseline condition likely to continue. You cannot just wish it away, as you seem to be doing. In any case, the Rt. 17 system dumps into other nodal points, most significantly the I-287, I-87, Rt. 17 intersection in Suffern. Even if Harriman ceased to be as significant a blockage point, there are others. And Harriman is a major traffic juncture in any case because of Woodbury Commons and other commercial centers even absent the toll booth.
Of further concern here is the extent to which Rt 17 serves as a local road, with substantial local traffic generation. Such traffic flow interferes with through traffic. Yet, as our main street, Rt. 17 has no alternative routes available to accommodate local demand. This fact is why the rail line on the Mainline has emerged as key in our thinking. Unless some traffic stream is siphoned from the system, the system will be forced to the breaking point. The idea of increasing system capacity to keep pace is not viable. Rail is not a minor undertaking. But without this, your casinos will be limited by congestion. You indicate that such alternative transit routes are beyond BIA or tribal control and cannot be looked at as alternatives. I dispute this interpretation of NEPA. Yes, the tribes are not proposing transit projects. But large sums of money have been dedicated to addressing various impact issues. Therefore, it is not unrealistic to see this also being explicitly addressed. NEPA is clear that you must balance the economic, social and environmental impacts. You must consider cumulative effects in doing this. And the project must mitigate problems. Certainly you would not approve of a project lacking adequate parking or sewage capacity, or not having access to water without drawing down available resources. The proponent would be required to provide parking, sewerage or a water mitigation. The same issue applies here with regard to access to the casino(s). In sum, it is within your mandated responsibility to address the traffic and air pollution issues we raise.
- Re the IGRA process, it is certainly the case that the tribe(s) provide unspecified resources to New York State. As noted above, however, unless those funds were to be used to mitigate the problems raised, then they are irrelevant. They must be restricted to use for mitigation of the impacts in question in order to have relevance to this discussion. New York State is an independent level of government from the locales where the impacts will be felt. Unless New York becomes bound to expend received resources in mitigatory activities, we must assume the impacts are not mitigated.
- You assume that addition of an another lane will mitigate impacts in Orange County. We dispute this. And, because no proposal to add a lane actually exists and no analysis has been made of such a proposal, it is moot in any case. If you believe that this mitigation is necessary, then you should make any decision to permit casinos contingent on mandated road widening.
- Your agency’s restriction of the scope of review to Sullivan County and a strip of Rt 17 in Orange is not compliant with NEPA, which clearly provides for examination of cumulative effects in order to prevent the partitioned thinking you engage in. NEPA assumes that the scope of any given impact extends to an impact area appropriate for that effect. For example, in the high level nuclear waste siting process, no one has disputed the idea that trucking radioactive materials to Yucca Mountain has impacts. If one employed your reasoning, the DOE would have only to look at the immediate Nevada environs for impacts.
- Your comment on cumulative effects suffers from the fallacy that IGRA is a mitigation mechanism. Rather IGRA is a profit sharing mechanism that provides funds to New York State. Orange County has no assurance whatsoever that any of these funds will come here and that they would be used for mitigation.
Furthermore, the kinds of mitigation required in this instance (a rail line, the third lane, etc.) take long term planning, review, and require up front funding. Are you suggesting that New York, the MTA, or another entity should undertake mitigatory actions on the speculation that the casino funds will recompense them? Otherwise, it will be impossible for the mitigation to ever catch up with the impact.
Rather, the mitigations need to be in place first so that the BIA can in good conscience assume that adverse environmental impacts are being addressed. Certain impacts are not addressed with vague actions by unspecified actors. No reasonable person would accept this scenario as meeting the fiduciary responsibility placed upon BIA by NEPA.
- The issues of casino hopping are not clear but the unclarity does not change the overall analysis. Casino hopping requires that patrons drive to Sullivan precisely because casino hopping is not a pedestrian activity. Thus, hopping compounds the problem.
- Re induced growth, you indicate that calculations are standardized. Yet, the DEIS assumes that planned housing capacity (much of it in Orange County) will accommodate housing needs, a conclusion we dispute. In fact, you have not calculated induced growth impacts in a manner that reveals a knowledge of the region. Your excuse—yet again—that projections are subject to error does not help your case. Of course error occurs in any calculation. One attempts to understand the likely range represented by type I and type II error and to project impacts associated with both extremes. If this is done, no excuses are needed about fuzzy calculations. NEPA is an exercise in addressing uncertainty. So you cannot remove the uncertainty from the process. The point is that one can anticipate adverse consequences that might be avoided by foregoing a course of action or by altering the course in some way. Your approach is avoid acknowledging the impact so that you are not required to account for it. That is an affront to NEPA.
- Finally, you conclude with the assurance that “the state compact and local agreements as well as induced regional economic growth will more than fully mitigate potential impacts.” For this statement to have any meaning, you must explicitly show a relationship between these alleged sources of mitigation and the adverse impacts that we have questioned. In fact, there is no clear and probable connection between the three actions you cite and Orange County’s long term exposure to traffic congestion and air pollution, as well as other adverse effects.
In your FEIS, you have the opportunity to take a hard look at these impacts and actually try to consider how best to weigh them in the eventual decision. You have serious problems with the adequacy of your baseline analysis, your impact analysis and your understanding of mitigation. You have not achieved a cumulative impact assessment. I urge you to rectify these problems so that the FEIS can serve as an adequate foundation for the type of reasoned decision that NEPA demands.
Your response suggests that you have already made up your mind, that the BIA has no capacity for independent assessment beyond the applicant’s presentation, and that mitigations for impacts are somebody else’s responsibility. I implore you to strive for the objectivity demanded by NEPA, to seek help to improve your agency’s capacity to take lead agency status, and to accept the mantle of responsibility of a decisionmaker for assuring that impacts from the decisions you make are seriously considered and addressed.
I again thank you for your response even if my rebuttal has not always been favorable. I would be happy to engage in further correspondence or in conversation to assist the BIA in strengthening the review process.
Michael R. Edelstein, Ph.D.
26 Murray Ave.
Goshen, NY 10924