To the Editor:
Recently, Protect Our Parks and its co-plaintiffs filed a suit in the Northern District of Illinois to stop the construction of the Obama Presidential Center in Jackson Park. This suit was brought against the city of Chicago, the Chicago Park District, the Barack Obama Foundation, and numerous federal agencies and officials. A recent article in the Hyde Park Herald extensively quoted Nadav Shoked, a Northwestern Law Professor who takes a “dim view” of the new suit. His dismissive attitude is puzzling because at no point does he even mention, let alone explain or critique, the theories on which our new lawsuit relies.
Its major claims all rest in a web of federal statutes: the Transportation Act of 1966, the National Historic Preservation Act of 1966, and the National Environmental Policy Act of 1969 (NEPA), all of which give clear priorities to the protection of historical and environmental resources over new project development, the OPC not excepted. Section 4(f) of the Transportation Act allows the Secretary of Transportation to approve a new transportation project built on public lands only if “there is no prudent and feasible alternative to the use of that land” and “the program includes all possible planning to minimize harm to the park...or historic site resulting from the use.” The Act then adopts the analytical framework set out in NEPA that demands that the needed analysis be done in this strict order: avoidance first, minimization, and last mitigation.
Sadly, the three agency studies all flunk the first step. These studies all adopted a forbidden practice of “segmenting” the overall OPC project into two stages—first, the destruction of Jackson Park and then reconstructing an unnecessary new road system to mitigate the damage. The studies break apart the unitary project to advance the absurd claim that three major environmental statutes are inapplicable to the supposedly “local” issues involving the destruction of the Park, roadways, trees, and spaces. But once that segmentation ends, it is painfully clear that the construction of an OPC would be better at a superior site. One location is the west of Washington Park. It would avoid all park damage - the destruction of the 1000 mature trees, migratory bird patterns, the water resource issues, changes to four major roads, and more — and proceed with greater community support.
Although Professor Shoked points to the length of the agency studies, he never once notes that those studies fail to address the relevant statutory issues. At one point, he treats our lawsuit to block the wholesale destruction of Jackson Park with a property owner’s effort to stop the new construction of an ordinary house because it blocks his view. Even more confusing is his obscure references to the much litigated pipeline cases, which cut against his position. A pipeline must be continuous over hundreds of miles, which limits how it can be located. But there is far greater flexibility in sitting a free-standing structure. No pipeline construction has ever countenanced the gratuitous destruction tolerated in this case. There is even less reason to let that happen here.
Shoked notes that the plaintiffs have not prevailed on their public trust claim yet. But he makes two glaring omissions: first, the claim remains very much alive, even after the Supreme Court has refused to hear our case, which is nothing out of the ordinary; and second, the renewed claim rests on the powerful ground that the City can no more give away $200 million in public lands in the form of a fake 99-year “use” agreement for $10 than a corporation can strip itself of its core assets for the same paltry sum. Shoked also ignores the naked delegation of authority to a private entity that transpired here to allow the transfer of the public trust property at issue, which not only supports the public trust violation but is itself legally unsound.
Shoked does make one true statement in his one-sided screed. “You can’t imagine a location that asked for more problems than this one.” Indeed, these many problems demonstrate why the OPC should not be constructed in Jackson Park but elsewhere on the South Side of Chicago.
Richard A. Epstein and Michael Rachlis
Rachlis and Epstein are co-counsel for Protect Our Parks in the ongoing litigation regarding the OPC
Letters from the staff
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