A Fatally Flawed Public Involvement Process

NEPA requires an early and open public process.  Note the following from CEQ.
  1. Make diligent efforts to involve the public in preparing and implementing their NEPA procedures  (§1506.6)
  2. In all cases the agency shall mail notice to those who have requested it on an individual basis. (§1506.6)
  3. There shall be an early and open process for determining the scope of issues to be addressed and for identifying the significant issues...   (§1501.7)


The Public Involvement Process (PIP) that has been utilized in this project is widely perceived by many stakeholders to be a sham - a process designed to give the appearance of public involvement while, in reality, it has not involved the public in any meaningful way.    Our understanding of (§1506.6) making diligent efforts to involve the public in preparing and implementing the NEPA procedures involves more than going through motions.  CEQ never intended for public input to be invited but not considered in the preparation of a NEPA document.

Although public comments were requested and submitted by hundreds of people on numerous occasions - there is no record of these comments in the draft EA.   The comments submitted reflect a range of issues and concerns, which have generally been mischaracterized or ignored in the draft EA. 

The characterization of the public input in the draft EA is inaccurate and unsubstantiated.  Although the Draft EA (IV.2) claims that “public participation has been an integral part of the design phase of the proposed project,”  that has not been the case.   There is no documentation in the draft EA that supports this claim.   

Rather the draft EA shows that the substantial and ongoing public controversy was never addressed in a meaningful way.  The minutes of the public meetings, as well as the voluminous Administrative Record, indicate that the planners came to these meetings with their plans already decided.  It was a ‘going through the motions’ of a public process.   

The project has followed the “Old Way” (see above illustration) - the Sponsor Decided, Announced, and now Defends its positions.  The principles of CSS were not used.  Although the concerns of the Coalition members were known to the Sponsor early in the project, they were never  addressed, nor consensus attempted or reached.  

A proper PIP  invites and considers feedback from stakeholders in an open and transparent manner.  When significant differences exist, there are recommended procedures to resolve them with the goal of achieving consensus.  A proper PIP informs agency decisionmaking, rather than  providing a forum for an agency to announce one.    A PIP should never convey the impression that it is being used to allow the agencies to claim they involved the public, to check that requirement off a list.   Yet that is what has occurred in this project. 

While the draft EA lists the public outreach, it fails to analyze ANY of the public input collected at these meetings.  The input of a large portion of the public, stakeholders who are existing trail users, and who have taken the time and effort to express their concerns, has been completely left out of the draft EA.  

For example, a key issue, identified early in the process, was the protection of the sensitive environmental area between Probst  Rd and the damaged culvert.  Knowing this,  shouldn’t the project planners have worked to understand and resolve this concern before it became the controversial issue it is now?  Although a subconsultant with stated expertise in public involvement was hired, the draft EA documents no attempt to reach consensus and resolve the controversy.

Rather the Administrative Record shows that beginning with the first Involved Entities (IE)Meeting (Jan. 11, 2008), and continuing throughout the project, the planners imposed predetermined goals and recommendations on the public, rather than trying to understand different points of view.  

The Administrative Record shows that after the January 2008 IE Meeting, and after the May and October 2008 Advisory Committee meetings, numerous emails were sent to the Consultant, expressing concerns that the draft minutes did not accurately represent concerns expressed by stakeholders.  But meeting minutes were not modified; instead Final Meeting Minutes were designated by decree.  They were never approved by the meeting attendees, and represent solely the belief of the design team.  Decide - Announce - Defend.  The Old Way.

This paper will provide numerous examples of how public feedback was mischaracterized or completely ignored, and how the entire public process has reflected the bias of the planners to direct the project toward a predetermined outcome: a wide stonedust bike path. 

The PIP has been an improper implementation of NEPA.    We are requesting that a proper PIP be put in place, that the project proceed as CEQ intended, before any determinations of impact are made.

1. Omissions and Mischaracterizations of Concerns Raised by Stakeholders.

The draft EA needs to be revised in a significant way to acknowledge and adequately address the submitted concerns of hundreds of people, which are not presently addressed.

These concerns were provided to the Sponsor in the form of:
1. Letters and emails to the Sponsor and FHWA (lead agency for NEPA),
2. Public statements on the record at public project meetings and at Town Board Meetings 
3. The official Coalition Response to the Draft Design Report (October 2008).

Public Comments were formally requested by the Sponsor, and the Town Board
An especially egregious example of the slanted public process was the complete omission, in the draft EA,  of hundreds of comments and other information presented to the Sponsor, often in response to direct requests.  Many of these comments will be resubmitted as supporting evidence.

In addition to the “Involved Entities” meetings referenced in the EA, the Sponsor requested feedback from the public formally on at least 6 other occasions.  None of these is mentioned in the draft EA:
  1. During the Public Open House (January 28, 2008)
  2. Through the Consultant Website for the length of the project
  3. During an official “public Comment period”, that began with the release of the Draft Design Report in October 2008, and ended on November 21, 2008
  4. During a scheduled and advertised Public Meeting on November 8, 2008
  5. During an agenda item on December 8, 2008, Public Input Session - Auburn Trail Extension Project.  At this meeting - each Town Board member was provided with a packet of comments supporting preserving the environment in the sensitive environmental area.  
  6. During an additional comment period set by resolution by the Town Board in December 2008. 

The Sponsor requested comments six different times - yet the draft EA doesn’t mention this, or give fair consideration the requested input.   Neither the comments nor any substantive analysis or summary is included in the draft EA.    Why not?  A project as controversial and public as this one should carefully be recording, analyzing, and considering all comments.  They should not go into a black hole.

Instead the draft EA discusses public input in two paragraphs (IV-21 and IV-22), where it grossly mischaracterizes the hundreds of comments submitted.  To twist the public input like this is dishonest and self-serving.  There is no documentation for the statements in the EA.   Unsubstantiated,  those paragraphs must be discounted.  They appear to be included  to justify the recommended alternative. It is a flagrant misuse of the Environmental Assessment process.

The Coalition did an analysis of all the comments sent to the Sponsor, (received through Freedom of Information requests,) and they are included in the table above, and in Table 1 of the Coalition Vision in Appendix N of the draft EA).  That data shows an overwhelming favoring of a narrow trail - 5963 (863 actively expressing concerns) voices to 106 preferring a wider (typically 6’, not 8’) trail.   

The Administrative Record also shows that the draft EA misrepresents the comments it received that supported a wider trail.  Nearly all those comments supported a 6’ wide trail, not one 8’ wide or wider,  as the draft EA wrongly states.  

Rather than discussing public comments based upon the submitted evidence that is in the project record,  the draft EA essentially creates its interpretation of public comments, based, apparently, on nothing more than what it would like them to be.  It reflects an underlying planner bias that has undermined the entire process.

2. The Draft EA does not Acknowledge nor Address Public Concerns

A January 22, 2009 letter from Robert Davies, FHWA to Steven Daniel, Coalition to Save the Railroad Mills Special Environmental Area,  stated “Your November 2008 twenty one page Coalition Response to the Draft Design Report containing a broad spectrum of comments was received, reviewed, and filed with the project documentation.  Certainly these comments will be considered in the development of the EA for the project.”

Despite the assurances of FHWA, the comments and concerns raised in the Response are not adequately addressed in the draft EA.  The Response is not even discussed in the Public Comment section of the EA.   Unaddressed concerns include:
  1. Acknowledgment of environmental concerns raised by the Coalition as early as 2003.
  2. Consideration of the sensitive environmental area between Railroad Mills/Probst Road and the damaged culvert, though the Town was apprised of it early in the process
  3. Unilaterally changing a project objective. “Protect Natural Habitat along Trail”, a project objective approved by the Advisory Committee and public stakeholders, and was published in the October 2008 Draft DDR. In the Draft EA, this objective was substantially changed and weakened, with no public discussion of any sort. It appears that this change in objective was inserted in the draft EA to support the plan to widen the trail and destroy existing habitat.
  4. Ethical issues regarding the Project Manager. It is improper for the Project Manager, or any official, to be advocating for a particular outcome in a federally funded project. Brian Emelson, Project Manager, has contacted fellow mountain bikers and solicited their comments to favor “his” “position”; he contacted others to develop a “strategy” to circumvent Coalition concerns. He provided the Town Board with Comments that only supported the position he was advocating, while claiming they represented all the comments. These issues are documented in the Administrative Record.

The Coalition brought its concerns about the Public Involvement Process to the attention of the Sponsor in November 2008, with the hope that the errors could be corrected moving forward.  

Instead the project has continued on the same path, with the same demonstrated bias and exclusion of genuine public involvement.  

Although CEQ states, There shall be an early and open process for determining the scope of issues to be addressed and for identifying the significant issues... , the opposite has occurred.   Once FHWA raised the project designation from a categorical exclusion with documentation to an EA, in December 2008, there was no public scoping as CEQ recommends.    

From the time the project designation became an EA in December 2008  until the announcement of a Public Hearing in April 2010,  there was little or no communication with stakeholders, no communication with the advisory committee, little communication at all outside of the design team and the agencies.   The Advisory Committee didn’t meet again, nor was there any communication to its members.  For 15 months there was no public communication about the project.  

The entire EA was developed in secret, out of public view, by the Design Team, in consultation with FHWA and NYSDOT.  This is contrary to NEPA’s intent about public involvement.

It is grossly misleading and incorrect for the EA to state that “public involvement has been an integral part of the design process.”  In reality, the public involvement process has not fulfilled the intent of  NEPA.

3. Coalition Alternative - April 2008

The only inclusion of Coalition concerns in the draft EA is the inclusion of the Coalition Vision, which outlines thoughts by the Coalition on an alternative, while offering to partner with the Town.  

The Coalition presented its Vision at  a April 7, 2009 meeting with Town officials.   Upon hearing the Coalition presentation, the Sponsor immediately rejected it,  and indicated it was not interested in any discussion of  consensus or compromise.   The Town stated that it would continue with its planned alternative.     

It was not a good faith effort on the part of the Town to find common ground.  On the contrary,  the Sponsor’s requesting of an alternative from the Coalition appeared to be a calculated attempt by the Sponsor to claim it had “reached out,” as an EA requires the consideration of alternatives.  This outreach was designed to give the appearance of process - it was not done in good faith.

4. Advisory Committee: A Rubber Stamp or it Doesn’t Exist

The last meeting of the Project Advisory Committee was October 2008.   The formulation of the entire draft EA - a 15 month process - occurred in private with only the design team. 

The “Advisory Committee” met 3 times - November 2007, May 2008, and October 2008.  It never “advised” - rather appears to be intended to rubber stamp decisions that were brought to it by the “design team”.  Meeting minutes, (Appendix P) confirm this.  They show no decisions, actions, or consensus statements of the external Advisory Team members. Instead, meeting minutes reflect the Town and design team telling the Advisory Team members what the design solutions were going to be, while discounting suggestions and ideas from other Advisory Team stakeholders. 

The minutes of the “kick-off Advisory Committee minutes”, Nov. 30, 2007, state that members would “receive a project status report prior to Advisory Team meetings, which will be held on approximately a monthly basis.”  If that were true there should have been approximately 28 advisory committee meetings before the draft EA was released in April 2010.  There were 3.  There was no communication after October 2008.  There was never any statement that the committee would cease to function.  The Advisory Committee was never informed that FHWA had decided to treat the project as an Environmental Assessment.  

The Advisory Committee simply ceased meeting.    We are left with the impression that because the Advisory Committee wouldn’t rubber stamp the October 2008 Draft Design Report, there was no reason for it to continue meeting.  The Advisory Committee had no input into the Environmental Assessment.

We have recently learned of stakeholders who were never notified that the Environmental Assessment was available for public review, as required by 1506.6, despite submitting their requests in writing.   


We have provided numerous examples that underscore the bias that has been endemic to this process. It has never been a fair and open public process, as NEPA requires.

The PIP has been fatally flawed.  Stakeholders, especially those with concerns contrary to the planners, have not been involved in a meaningful way.   The widespread public controversy has not been properly addressed.   

Hundreds of invited public comments have been ignored.  

The Administrative Record documents that there has been no fair, transparent, or meaningful public process.  

Per CEQ, a proper public involvement process must occur.  The draft EA should be revised once a proper public involvement process that will correct the failures of this one,  is developed.