Written by Julia Miller
Behind every effort to preserve a famous landmark or an important cultural site lies an individual, or more often, a group of people who stand to be directly affected by whatever decision comes their way. Thus, when a state, city government, or court of law enable an entire historic neighborhood to be bulldozed, that decision becomes particularly distressing. An on-going controversy in New Orleans provides a case in point.
Back in July 2008, the Department of Veteran’s Affair (VA) and the Federal Emergency Management Agency (FEMA) approved the selection of a 27-square block site in New Orlean’s Mid-City Neighborhood to construct two major medical centers—one for the VA and the other for Louisiana State University (LSU). The VA plan calls for a new, 200-bed VA hospital on a site bound by South Rocheblave Street, Canal Street, South Galvez Street and Tulane Avenue. LSU’s 424-bed hospital would be built across Galvez to South Claiborne Avenue.
Located within the footprint of the proposed hospitals lies a historic neighborhood filled with people, homes, and businesses. If built, the hospitals could displace more than 600 people, demolish or move all of the homes and businesses in the project area, and disrupt many others within the historic neighborhood but just outside of the project area. Approximately 265 buildings, including up to 165 contributing buildings within the National Register-listed, Mid-City Historic District, are slated for demolition. Moreover, this destruction would occur in spite of the diligent efforts by residents to rebuild their community in the aftermath of Hurricane Katrina.
What’s more, all this grief is unnecessary. The National Trust for Historic Preservation and other advocates have long urged LSU to build its state-of-the-art hospital in the gutted shell of the historic and hurricane-damaged Charity Hospital building, a less costly and less harmful but equally viable alternative. The VA hospital could be constructed on a portion of the LSU’s proposed site located by I-10, which is close to shovel ready and currently slated for six square blocks of surface parking.
On May 1, 2009, the National Trust sued the VA and FEMA under the National Environmental Policy Act for selecting the Mid-City site before considering the full environmental consequences of their decision. Just over a month ago, on March 31, 2010, U.S. District Judge Eldon Fallon in New Orleans issued a disappointing decision. Ruling in favor of the federal agency defendants, he upheld both their decision not to prepare a full blown environmental impact statement and their rejection of viable, alternative sites for the projects, such as Charity Hospital.
In his 58-page opinion for the court, Judge Fallon agreed that the National Trust had standing and the case was “ripe for review.” However, he declined to set aside the agencies’ approval of the proposed sites for the hospitals, notwithstanding their use of a two-phased decision-making process and alleged failure to consider the cumulative and indirect impacts that would result from the selected sites. He also let stand the agencies’ “Findings of No Significant Impact,” even though they were based only on promises to develop mitigation strategies during the projects’ design phase.
At the core of the National Trust’s concerns lies the agencies’ conclusion that the environmental impacts were “insignificant,” based on a limited review of impacts that pertain to site selection specifically. Although inextricably linked, the agencies deferred consideration of, and thus failed to take a “hard look” at, the full spectrum of impacts resulting from the hospital projects on the Mid-City neighborhood—such as noise, traffic, drainage & flooding, contamination, land use, and displacement. Moreover, by doing so, they foreclosed consideration of reasonable, alternative sites.
Undeterred, on April 26, the National Trust filed a motion asking the judge to reconsider his decision based on manifest errors of law and fact. We argue that the court improperly allowed the agencies to rely on mitigation measures that would be developed in the future, and whose effectiveness was therefore unknown, in concluding that the impacts of the project was “insignificant.” Under fundamental principles of administrative law, agencies must make their decisions—and courts must review those decisions—based strictly on the information that is available at the time. Additionally, we contend that the court failed to require that the agencies provide “sufficient evidence and analysis” to support a conclusion that the impacts are not significant. Finally, we point to a number of substantial factual errors in the opinion, which raise questions about whether the court understood the magnitude of the impacts of the hospital projects on the Mid-City neighborhood.
If the motion is denied, the National Trust plans to appeal the district court’s decision.
The National Trust is represented by pro bono counsel, Institute for Public Representation at the Georgetown Law Center, Washington, D.C. and National Trust Advisor, James R. Logan, IV of Logan & Soileau.
Julia Miller serves as special counsel for the National Trust for Historic Preservation. Along with her colleagues in the National Trust’s Legal Department, she will be blogging about all things legal each Friday in our new series, Preservation Law Notes.