Orange Environment, Inc.




Thursday, April 7, 2005

Michael R. Edelstein, Ph.D. President, Orange Environment, Inc.

Thank you for the opportunity to be heard on this vital regional issue. I am President of Orange Environment, Inc., a 23 year old non-profit, tax exempt organization concerned with the sustainability of the environment and communities in the Orange County region. OEI has filed lengthy testimony at every stage of the proceedings on the Mohawk and the Stockbridge-Munsee Impact Statements. We anticipate participating in the review of other casino projects, as well. And, if necessary, we are prepared to litigate on one of the several keystone questions surrounding the decision to bring large scale gaming to Sullivan County.

Our concern is over projected impacts to Orange County, most specifically due to the congestion of Rt 17 and secondary roads due to the 25 million projected car trips and the connected problems of air pollution. Downstream effects on Orange County threaten to congest its main transportation artery to the point of stasis. Quality of life, economic intercourse, expensive service demands, and air pollution are central impact issues. If Orange County is brought to a standstill, ironically, Sullivan will be equally harmed, with as much as 75% of the traffic stream to the casinos affected. Impacts will radiate further downstream too, affecting, for example, traffic movement through the Ramapo Pass and at the intersection of I-287, 17 and the NY Thruway.

It is imperative that these impacts be fully understood and addressed before any casinos are permitted.

Accordingly, the Governor erred procedurally and strategically when he failed to direct that a Generic Cumulative Impact Assessment be done for the five casino projects that he proposed. The New York State legislature should make this assessment before voting on the proposed land settlement package or at least amend the settlement legislation to mandate this review.

A Generic cumulative impact statement will allow for New York to assess the impacts of an off-reservation casino development policy per se, and to specifically examine in detail the impacts for the Sullivan County region, which includes Orange County. There are potential adverse environmental, social and economic impacts resulting both from this general policy decision to use casinos as a carrot in native lands claims settlements and to concentrate five of them in one region. As a result, SEQRA should be used as intended as a tool to assure that decision makers are informed of these impacts, whether they can be mitigated, and possible alternatives before enacting the policy.

The Governor’s land settlement bill fails to provide an adequate framework for mitigating adverse effects. The size and directed use of impact fees and revenue sharing in the bill is arbitrary. There is no way to know if enough revenues are generated to offset impacts and there is no framework to assure that these funds will be directed to impacts. In fact, anyone aware of fiscal practices in New York can be certain that monies collected by the state are unlikely to be dedicated to impact mitigation. A further and serious problem with the approach employed by the Governor is that mitigations must be in place before the casinos are built, yet the revenue stream associated with the impacts assures that, even if some funds are used for mitigation, they will not be available until after problems are manifested. SEQR demands that significant anticipated problems be prevented by altering the implementation or nature of the proposed project. Subsequent impact monitoring might lead to further mitigation by funds collected over time, but such uncertain post-project funding does not constitute adequate basis for mitigation to allow for a project to be permitted.

New York needs to undertake these studies for additional reasons. It should serve as a role model in applying its own laws rather than circumventing them. It should employ best decision making practices called for by SEQRA. The public involvement associated with this process would further allow the state’s citizens to directly participate in the decision making review, helping to make the impact assessment complete. Such a process would further protect the interests of the native, municipal and private stakeholders as well as the public. Given that the local impact assessment reviews to date are not obligated to address the generic policy issues and have not taken a hard look at the regional impacts, the state’s assuming lead agency on a generic review would offer the resources and scope needed to assure this hard look.

My suggestion of a state cumulative impact study also addresses the inherent confusion found in the federal impact assessment of the casino projects by the BIA under the National Environmental Policy Act. The BIA avows that its mission is to address impacts to native clients of the agency. However, in meeting its NEPA obligations, the agency is also obligated to assess other potentially significant adverse impacts. It is evident, both from the responsiveness summary offered in the Final Environmental Impact Statement of the Mohawk application and from a letter I received responding to my comments on the Stockbridge Munsee DEIS (Franklin Keel to Edelstein, March 18, 2005) that the BIA is not committed to consider non-native impacts critically. In short, unless forced by legal challenge, the BIA could care less what problems are caused by issuing the casino permits. This is true for the traffic and air pollution impacts central to my testimony, and to other impacts as well. If New York fails to address these impacts, we cannot assume the BIA will. By their own statements, we can be quite certain they will not.

And there is further evidence that regional impacts are not being addressed.

Both completed impact statements conclude that there are no significant impacts to Orange County. This is due to faulty models, use of data that is out of date, and failure to consider other sources of data that are contradictory and show impact. Such conclusions are made despite the fact that casino impacts are maximized on Friday evenings going toward Sullivan and Sunday afternoons moving toward New York, precisely the points of lowest level of current service. And they ignore the Clean Air Act issues stemming from Orange County’s non-compliance with Ozone and Particulate Matter National Ambient Air Quality Standards and other consequences of stalled or slowed traffic.

However, the issue is even more convoluted. Somehow, the BIA has developed the notions, articulated clearly in Franklin Keel’s letter to me, that payments by the tribes to New York State are intended to be used for mitigation, that they will be sufficient to mitigate impacts, and that these funds will in fact be used to mitigate adverse casino impacts. As I rebutted to Keel, these views are not justified. And, regardless, the BIA is obligated to assure that mitigatory steps are in place before issuing permits or as a permit condition. The agency cannot rely on unspecified payments going into unspecified funds to address unspecified impacts. That is a mockery of NEPA.

Unfortunately, many actors seems to be playing into and reinforcing BIA’s misconception. Take for example, those that embrace the idea that funding a third lane on Rt. 17 will mitigate traffic and air pollution impacts due the casinos and other cumulative actions. There are numerous problems with this formulation:

  1. The third lane may be needed to move traffic even under current flows, but in no way will it prove sufficient to keep traffic moving given casino destinations drawing as many as 25 million cars per year.
  2. The “Iron Law” of traffic state that a third lane is likely to induce sufficient additional growth that will quickly offset its own benefits.
  3. Congestion is driven by nodal points where traffic bunches up. Besides shifts between more and fewer lanes, the key nodal point in the Orange County portion of Rt. 17 are the Thruway toll booths in Harriman. Removal of these tolls, long promised by the state, is carefully avoided by all parties as a mitigatory step. It is proposed to spend $10 million per mile adding a lane to Rt. 17 when either removing tollbooths or making them smart high speed toll registers might add equivalent benefits. However, even toll booth removal combined with a third lane will not address the cumulative casino impacts.
  4. An alternative or additional approach for adding Rt 17 capacity is by reducing current traffic streams using the highway. This reduction can be effectively achieved while addressing air pollution is to recreate the Main Line Rail in Orange County. While costly, this project might actually serve as a partial mitigation for casino impacts. Given how eager politicians are to find funds to bring rail to Stewart Airport, I am certain that funds can be found for the Main Line restoration. In fact, the Stewart and Main Line projects should be made part of a comprehensive plan (and cumulative generic impact study) for connectivity serving to reduce air pollution and congestion while maintaining mobility. New York should combine a full study of alternative means for meeting this rail objective with the recommended cumulative generic impact review of casinos. Arizona has integrated rail into highway projects; perhaps one can tie the third lane expansion and creation of a rail corridor into one project.

In closing, the cumulative generic study approach I have suggested can be used to consider alternative approaches to regional economic development and to mitigation of impacts. It represents a concrete step for the legislature to take in order to protect state residents from unmitigated impacts allowed by an uninformed BIA review. Wisdom needs to be evidenced now. Otherwise, lots of people will have a chance to ponder New York’s blunder as they sit in their cars on the Way formerly known as Quick.