In Reply to Chris Murphy (in Defense of Environmental Law)

The Triborough Bridge over the East River in Astoria Park, Queens, New York


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Step back a moment to March 3, 2009.

President Barack Obama has just taken office. The economy is facing its greatest crisis since the Great Depression.

No one knows quite how to respond.

And though it may seem like ancient history at this point, many would look to Franklin Roosevelt, the WPA and CCC as a model for a federal response to the Great Recession.

The idea was a simple one – fix the economy, America’s crumbling bridges and antiquated railroads by investing billions of federal dollars into so-called shovel-ready projects.

Here’s Obama making the announcement

“Thanks in large part to [Vice President] Joe Biden….and because of all the governors and mayors, county and city officials who are helping implement this plan, I can say that 14 days after I signed our Recovery Act into law, we are seeing shovels hit the ground.”

Think Triborough Bridge, Robert Moses.

But as the administration soon discovered, more than years separated the 1930s and the 2000s – there were no shovel-ready projects in 2009.


In part, because in the intervening years a bipartisan environmentalist coalition of senators and congressman passed sweeping legislation to fundamentally transform how infrastructure projects are planned and delivered – the Clean Water Act, the Clean Air Act, the Endangered Species Act, and the National Environmental Policy Act.

Think Rachel Carson, Jane Jacobs.

By the early 1970s, after decades of unfettered construction buoyed by postwar prosperity, most every federally funded or permitted project – damming a river or building high-speed rail for example – would require an Environmental Impact Statement, or EIS for short, if it was expected to pose a “significant” harm.

In most cases, an EIS is not a vehicle to block a project but can delay it while the environmental costs are counted, the public is allowed comment, and offsets are determined. The median length of an EIS is 180 pages and the median delay is 3.5 years.

It took six years to complete an EIS for the Keystone XL pipeline.

So now that President Joe Biden is once again at the pointy end of billions of dollars of infrastructure spending, Sen. Chris Murphy is suggesting we change that.

How exactly, he’s not saying…

In Murphy’s words, “Outdated and unwieldy review and permitting processes hinder ourability to meet the urgency of the climate crisis and bog down much-needed projects in delays and litigation that fail to safeguard the communities and the natural resources they’re designed to protect.”

But Murphy does offer two telling examples of the sort of opposition he seeks to curtail.

The first example is a legal challenge to Vineyard Wind by fishing interests – bankrolled by fossil fuel companies – claiming that the completed EIS for the offshore wind project failed to properly consider the cumulative impact of all the projects planned along the eastern seaboard.

In the second example, Murphy calls out public opposition to the proposed high-speed rail bypass through southeastern Connecticut and southern Rhode Island, which Murphy says  “comes most often from wealthy landowners, not environmental groups or low-income citizens.”

In that case, ironically, Murphy once joined the opposition, before the proposal was later withdrawn without legal challenge.

If we are to believe Murphy, in each case good law has been co-opted by bad actors.

“The fossil fuel industry and well-heeled interests have too often co-opted the process to their advantage,” writes Murphy. “They are able to overwhelm, out-lawyer, and outlast under-resourced advocacy and community groups while deploying far more money and influence.”

But even if true – and I suspect that many Stonington fishermen and average residents of Charlestown, RI, New London and Old Lyme would disagree vigorously with the characterization – how exactly does Murphy propose that we curtail the efforts of bad people and support the good people, except by simply putting our faith in the inerrant goodness of government? Or government when it’s in the hands of his preferred party?

In all seriousness, we should fix the process where we can.

But before I’m prepared to take the leap, first I’d like to know where Murphy’s revisions would leave Kevin Blacker, the landscaper turned gadfly who has bedeviled a project to construct world-saving wind turbines once entrusted to the hands of a corrupt small-town first selectman?

Or Lorena Venegas, a Latina activist in East Haven, who has pressed longtime Murphy aide Sean Scanlon (so far unsuccessfully) for an EIS for the planned Tweed Expansion in her environmental justice community?

Or in the case of high-speed rail, why should we speed along and approve plans when the Federal Railroad Administration flouts federal law, and fails to comply with a simple Freedom of Information Request for more than 5 years?