Environmental Review vs. Eminent Domain — It All Depends on Which Ox Is Being Gored

It is by now a familiar story that when it comes to environmental impact statements and their review by the courts, nothing is sacred. It started over 30 years ago, when the first wave of environmentalists began challenging new public projects on the grounds that the environmental statements on their impact were incomplete, or failed to consider alternatives, etc., etc. If you want a great vintage example of that sort of stuff do read William Tucker, Environmentalism and the Leisure Class, Harper’s, December 1977, at p. 49. It tells the story of how environmentalists nitpicked to death, and eventually defeated, the “Storm King Mountain project” — a Consolidated Edison pumping station on top of Storm King Mountain on the Hudson River, north of New York City. The idea was that Con Ed would build a water reservoir on top of the mountain, fill it by pumping water up to it where it would become a lake and just sit there until there ever was a major power demand, like a power failure, in which case the water from that lake would be released to flow down the mountain through tunnels and power stand-by hydroelectric generators at its foot, which would then restore power.

But nothing ever came from it, and the project was not built. Why? Because environmentalists successfully tied it up in administrative proceedings and then in court. And the courts, whether ruling pro or con, had no trouble considering the merits of the proposed design and Con Ed’s efforts in producing it.  This is quite a story and we suggest that you do read Tucker’s article for its details.

The bottom line is that when it comes to environmental law, courts do not hestitate to plunge into, review, criticize and where appropriate, disapprove the design and location of public works, rejecting in the process the considered judgments of engineers, scientists and planners. So why is it different when it comes to eminent domain?

This question was inspired when we read the recent decision in City of Chicago v. St. John’s United Church of Christ, 935 N.E.2d 1158 (Ill.App. 2010). There a group of condemnees challenged the taking of their church and cemetery for expansion of the O’Hare Airport, and one basis for their lawsuit was the allegation that the city failed to establish necessity for the project. This argument was rejected by the court which proclaimed itself all but incompetent to review these matters. Said the court:

“Judicial interference in the actual plan to be implemented would lead to interminable delays, as there is always a different way to configure the use of land, especially a plan as massive as the expansion of an airport. Even if the overall expansion plan has changed such that the planned runway could be built on land other than the cemetery land, the fact remains the runway is planned to be built there, and the trial court would have no authority to scuttle the plan or require the City to redraw the plan to place the runway elsewhere.”

So there you have it. As the court also observed, “These are questions of a technical nature that are not appropriate for judicial review.” So why are these “technical questions” readily considered and criticized by judges in environmental review litigation, but are not “appropriate” for judicial consideration if the court action is labeled “eminent domain” instead of “environmental review”?

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