Endgame at the Peace Bridge

By Bruce Jackson


 

There were three major interlinked developments in the Peace Bridge War last week:

—The Buffalo and Fort Erie Public Bridge Authority decided to join the study of bridge and plaza alternatives now underway and to abide by the decision of the Peace Bridge Public Review Panel, which was set up last summer by the City of Buffalo, Erie County, the Community Foundation and the Margaret L. Wendt Foundation.

—The Public Review Panel had two sessions in which the public responded to the Panel’s October 6 interim report, in the course of which the major defect in the process became clear.

—Judge Eugene M. Fahey released his long-awaited opinions in the gaggle of lawsuits filed by the City of Buffalo, Episcopal Church Home of Western New York, the Olmsted Conservancy, and Buffalo and Fort Erie Public Bridge Authority.

MEET THE PRESS
Shortly after it set to work last summer, the Peace Bridge Public Review Panel announced that its engineers would report on their preliminary examination of bridge expansion and plaza location alternatives in a public meeting at WNED-TV on October 6 and that there would be two evenings the following week at which the public would be invited to respond to and comment upon that preliminary report.

On October 1, the Public Bridge Authority, which had refused to participate in the Public Review,  announced that it would conduct its own public meeting in Fort Erie the following day to report on its companion span progress and to let its own engineers talk about how they thought things should go. PBA officials have for some time been unwilling to answer questions from the public about their expansion plans. I suspect this unexpected meeting was called because of the success the New Millennium Group was having with its recent informational meetings and open discussions in Fort Erie. Because of those meetings, many Canadians were  for the first time learning the rationale behind the American opposition to the companion span.

On Monday, October 4, the PBA announced without explanation that the October 7 meeting would instead take place on Thursday, October 14, the same time as the second of the two nights scheduled for public response to the Review Panel’s October 6 preliminary report. No explanation was given for the change in schedule.

It didn’t seem to make any sense. It couldn’t be to steal some of the audience because hardly anyone from Canada has been present at any of the Review Panel sessions anyway. It couldn’t be to steal the press coverage because press coverage of response to a bland week-old engineer’s report wasn’t important enough to steal. It’s possible that this was just careless planning: sometimes things that appear sinister or snaky are just klutzy.

On Tuesday October 12 Mayor Masiello’s staff announced that there would be a press conference on the Peace Bridge in his office at four p.m. the next day. The word was that a face-saving deal had been reached with the Public Bridge Authority. The next morning, the PBA cancelled the October 14 Fort Erie meeting, saying it would be rescheduled soon.

The press conference  wasn’t actually in the mayor’s office. It was in the mayor’s new Press Room, around the corner and about eight doors down the hall. About a dozen reporters were there, as were some people from the New Millennium Group, Canadian Consul-General Mark Romoff, Public Bridge Authority secretary/treasurer Earl Rowe, a few members of the Authority, political staff members, and members of some community groups. When I saw Romoff I knew this was serious business: Romoff has been involved in this from the beginning, but he’s never been at any of the public events since the issue got contentious. He had a big smile on his face and seemed happy to see everybody.

Buffalo Common Council President James Pitts arrived. I asked him what part Judge Fahey’s opinion on the lawsuits, scheduled for two days hence, might have played in what the mayor was about to announce. He shrugged and said, in the voice he uses when he’s quoting someone else, “Death destroys a man but fear of death saves him.” Jim Pitts is really good at putting things into practical perspective.

A few minutes after four p.m. Mayor Masiello—flanked on the left by Erie County Commissioner of Environment & Planning Rich Tobe and Jim Pitts, and on the right by Buffalo and Fort Erie Public Bridge Commission chairman John Lopinski and Gail Johnstone of the Community Foundation for Greater Buffalo-- read a statement announcing that the PBA had decided to join the process of examining and evaluating bridge and plaza alternatives begun last summer by the Peace Bridge Public Review.

“Up until today,” the mayor said, “our process had lacked direct participation and input from our Canadian friends and counterparts on the other side of the bridge. Members of the steering committee of the Public Consensus Review Panel and members of the Peace Bridge Authority are here today to announce that we have come to an agreement regarding full Canadian participation in a study of short-listed alternatives and acting as a bi-national team they will act to produce a consensus recommendation by January 24 of 2000.”

The mayor was speaking as if some distant Canadians had stonewalled us thus far and were now joining us in a burst of international cooperation. In fact, it was the five Canadians and the four George Pataki appointees to the Public Bridge Administration who had long ignored all pleas from the community for consultation and involvement. What was accomplished by this agreement wasn’t just Canadian participation, but PBA participation, which is more important because it’s the PBA that decides what’s to be done with the Peace Bridge.

When the mayor was done, John Lopinski, Rich Tobe and Gail Johnstone each spoke briefly (Tobe spoke on behalf of his boss, Erie County Executive Dennis Gorski, who was elsewhere). Jim Pitts did not speak, but he stood there listening to the others, his fingers interlaced, a slight smile on his face. He is, as everyone in that room knew perfectly well, the Buffalo political figure who argued longer and more passionately than any other that the twin span was a lousy idea and the region deserved better. The Peace Bridge Public Review is an outgrowth of the Peace Bridge Task Force he set up more than a year ago. It was appropriate that he was there for this announcement.

The mayor thanked nearly everyone who made this happy event possible. He even thanked Congressman John LaFalce, which I thought odd: LaFalce was the only major New York elected official who endorsed the twin span and tried to squelch the introduction of any other idea. In collaboration with Canadian Member of Parliament John Maloney, he came up with a plan that would have limited discussion to a cost-based comparison of a second span and a signature span, cutting out all questions of plazas, systems, aesthetics and human factors, which is to say, he wanted an inquiry that would have been a lock for the PBA and its twin span concept. But perhaps LaFalce was involved in the behind-the-scenes negotiations that resulted in this agreement. If so, I wish they’d tell us so he wouldn’t have to bear the burden of having been on the wrong side of this important issue.

In his remarks from the lectern, the mayor did not thank Senator Daniel Patrick Moynihan, who, like Mr. Pitts, endorsed the signature bridge early on. After the press conference was over someone must have told him of his lapse because he yelled from the far side of the room, as the last reporters were about to leave, that he also wanted to thank Senator Pat Moynihan.

(An ironic note: while the mayor’s press conference was going on, an Allied moving van was loading the belongings of Bruno Freschi, whose signature design fired the imagination of most people who’ve come to oppose the PBA’s companion span idea. The next morning, Freschi left Buffalo and moved to Washington, D.C. Presumably he’ll be available for hire should his signature span be the choice of the Review Panel. Coincidentally, or maybe not, the famous bridge designer Gene Figg is due in town for a two-day visit later this week.)

WHY NOW?
Part was surely Judge Fahey’s pending decision. Part has been an almost constant stream of negative publicity: even in the Canadian press, PBA has been widely portrayed as closed, tasteless, and bullying. Part has been a real deterioration in what had been a very good relation between Canadians and Americans on this border. Part is Canada’s very aggressive interest in getting Americans to cross the border to dump money in its gambling joints. Part is a great deal of behind-the-scenes work by several people over the past month. And part is recognition by Canadian Minister of Transport John Colinette that without some kind of agreement the court cases were likely to tie up this construction project for years, which would make life difficult for his beloved NAFTA truckers.

I don’t think any one or two of those factors would have done it, but the increasing pressure of all them pushed things to a point where a radical shift in policy was unavoidable. Most people close to the affair were certain a break would have to come, but few if any knew when or how it would come about. It got me thinking about an anecdote I heard in my metallurgy class in engineering school and in a sociology class when I moved over to the liberal arts. It has to do with the metal bar that is bent, made straight, bent, and made straight again. For a long time nothing much seems to be happening, then the place where the metal is being bent gets warm, and then, as the bending and flexing and bending and flexing continue, the bend gets hot. And then, at a moment no one but a metallurgist (my sociology professor said) might predict and no one at all (my metallurgy professor said) can predict, the metal bar separates, it simply breaks apart. Was it the last bend that did it? The fifteenth? The hundredth?  Who knows? All we really know is that the bend gets warm and then hot and then things break open.

THE AGREEMENT
The document handed out at the press conference was titled “Agreement Proposed by the Peace Bridge Authority.” It says that Transport Canada will name a Canadian engineering firm to work with the American firms hired by the Review Panel. The two teams of engineers will evaluate the various bridge and plaza proposals, will discuss this with the Review Panel, and, after an “interactive process” with the Panel, will eventually recommend a specific system. The PBA will accept whatever bridge and plaza system is ratified by the Review Panel steering committee. Once that happens, the mayor will “move the necessary easements forward.”

Perhaps the most important thing about this agreement is the fact that it exists at all: this is the first time the PBA has agreed to join any process having to do with the bridge not totally in its control or in the control of its longtime dance partner, the Buffalo Niagara Partnership guided by Andrew Rudnick. (Rudnick was the only major player absent from the mayor’s press conference, I assume because he didn’t want to answer questions about his own role in trying to keep this collaboration from coming about.)

The agreement lists six issues that are “the critical criteria in the evaluation and comparison of alternative bridge design and plaza locations.” They are: costs and funding, implementation schedule, environmental impacts, economic impacts, functionality of the system, and aesthetics.

This list introduces key subjects fiercely excluded by the PBA in the past. The PBA has long insisted that the bridge could be designed and built independently of the plaza, that the Olmsted park destroyed by the bridge and its roads and plaza was not its concern, and that what the bridge looked like was unimportant. It has spoken of the need to service the NAFTA trucks and ignored the economic consequences of plaza design to the city of Buffalo. All of those are now admitted to the conversation.

The agreement several times refers to the extensive work done by the PBA’s consultants (Parsons) and insists that the data accumulated in the course of that fifteen-million dollar inquiry be admitted. The danger several people see here is that the Review Panel’s engineering consultants will be overwhelmed by that huge mass of data and will not be able to consider other options in light of it.

It is indeed a danger, but not necessarily fatal. The two American consultants--Ammann & Whitney and the Louis Berger Group--are both major engineering firms. Both of them, along with Parsons Design and T. Y. Lin International are in the Engineering News-Record’s list of the top 25 bridge design firms for 1999. I think it unlikely that they’ll roll over and play dead simply because Parsons has spent a huge amount of the PBA’s money thus far and will come to the meetings with a ton of printouts. They know that Parsons never considered a six lane bridge or any other plaza location, which means most of the Parsons data is, in this expanded inquiry, irrelevant. I wouldn’t be surprised to learn that Parsons itself might be looking for a way to get out from under what more and more is becoming an untenable design position. This affair has gotten a good deal of international publicity and to many observers Parsons is looking like paid whores in a grungy political process. They probably don’t like that.

I have far less confidence in the ability of the engineering firms to deal with the aesthetic and social aspects in that list of six criteria. More on this below.

Things are scheduled to move fairly quickly now. The Canadian Government is supposed to announce the name of the Canadian engineering firm this week. That firm has three weeks to familiarize itself with the project, then it joins the American engineering consultants and engages in the collaborative process with the Review Panel, delivering a final report and recommendation to the Panel by January 10, 2000. The Steering Committee of the Public Consensus Review Panel will inform the PBA of its preferred bridge design and plaza location by January 24, 2000.

What if the American and Canadian engineers disagree? What if the two engineering teams have different responses to the Parsons data? What if the Canadian engineers are in the PBA’s pocket and come to the table with closed minds? What if they won’t play fair? The document, which seems hurried and is sometimes a little fuzzy,  doesn’t say.

Some lawyers say a contract is as good as the lawyers who drew it up; others say it’s as good as the parties signing it. I don’t know who drafted the agreement for the PBA but I know who the eight signers are.  There are four signers for the PBA: John A. Lopinsky, Brian J. Lipke, Luiz F. Kahl, and Roderick H. McDowell. And there are four signers for the American public: Mayor Masiello, County Executive Gorski, Gail Johnstone and Robert Kresse.

Two of those eight signatures give me confidence. Gail Johnstone is acutely aware of the complex issues here, as is Robert Kresse, who is a very astute lawyer. Both are members of the Panel steering committee and both committed major resources from their respective foundations to make this process possible. If there’s fuzziness in the text it’s because the neither Johnstone nor Kresse believed it was of an order that would allow the PBA to renege without great cost to itself. I trust their judgment and I think this is a good agreement.

THE PUBLIC RESPONSE TO THE ENGINEERS’ REPORT
The consulting engineers’ report of October 6 was basically a consolidation and clarification of what everyone else has suggested thus far. The public document that accompanied that report also included a summary of the statements made in the Panel’s August sessions. The first of the two public response sessions began only a few minutes after the mayor’s press conference ended.

Only a few of the statements those two evenings were directed to the report itself. That’s because there was little in it one could say much about: it had all been said before. Most of the statements were either about what was needed or wanted, partly a rehash of what had been said in the August hearings, and some were reminders to the Panel and the engineers that important factors were still being ignored or left out.

There was some microphone ego-tripping, but not very much. The most egregious was a thirtyish attorney who went on for 11 minutes and 31 seconds, half again the allotted time. Three times co-chair Randy Marks politely  tried to get him to conclude, but he kept on talking. It wouldn’t have been so bad had there been substance to what he was saying but there wasn’t any substance. He was patronizing, preachy and irrelevant. He told the panel (which includes several superb lawyers) what it takes to be a great lawyer. He talked about the need for “hard work and innovation”and about what a swell job his wife did packing the trunk when they went on vacation.

What impressed me was that all the time he was preening at the lectern the entire panel listened to him attentively. They had invited people to talk, they said they wanted to listen, and by all appearances that’s exactly what they did. Most of the time what they listened to was far more interesting and sometimes it was innovative.

One speaker asked if it mightn’t be possible to put the whole fume-belching truck operation indoors, maybe even below grade, with the exhausts filtered before they were released into the atmosphere so there wouldn’t be so much poison spewed into the West Side air. UB engineering professor John Mander offered an interesting efficient bridge design different from any of those presently under consideration. Bob Biniszkiewizc outlined the current version of his plaza design. It’s an impressive design grounded in a profound vision of how the plaza might work for the city’s benefit. I’ve heard his presentation before, but this time there were key differences in central design aspects. Bob has done what the PBA has refused to do: listened to what other people were saying and adapted and improved his ideas.

Buffalo architect Clinton Brown pointed out that the report sees the “bridge system” as bridge, plazas and connecting roadways, but omits parks, neighborhoods, jobs–all the human factors. Brown questioned the inclusion of parks and communities in the report’s list of “key environmental constraints.” He said “When is a park a constraint? In all due respect to my colleagues, it’s when you’re an engineer that wants to speed traffic through on a ribbon of concrete the park gets in your way. ...When do we call communities constraints? Why do we call the people who’ve bought houses on Busti a constraint?” Good questions.

The responses were all given by Seth Grady, an engineer with Louis Berger International and co-chair of the Technical Review Committee. His responses to questions about plans already on the table seemed astute and lucid. His responses to fresh ideas seemed politely resistant. When he was making those responses I thought of what panel member James Kane, Senator Moynihan’s representative, referred to as “not thinking out of the box.” Engineers don’t usually think out of the box: they make boxes, but they don’t involve themselves in why they’re needed or what alternatives to them might exist. Engineers rarely think socially or aesthetically.

The technical consultants haven’t, so far as I can tell, taken a fresh look at anything, nor do they intend to. Rather, they’ve consolidated what everyone else has said and have given all those suggestions a look to see if any might be so improbable or difficult they could be dismissed now. Into that category, for example, fell the two-level plaza developed by Bruno Freschi and Cannon.

In the course of their work so far, they didn’t seem to challenge anyone’s assumptions or constraints: if the PBA or Customs said this was a requirement, then it was accepted as such. Instead of looking at the whole issue afresh, they picked it up at the ragged edge. That may be all that is possible given the time constraints, but it places an increased burden on the members of the Review Panel to interrogate the binational teams of engineers carefully to be sure that important options aren’t being ignored just because they’re not simple enough to fit easily into the high velocity study.

Grady several times said that his group had to compare “apples and apples.” It seemed almost a mantra for how they would behave in their research. He seemed to mean that whole systems should be compared to similar whole systems and segments should be compared similar segments. It seemed so neat and orderly.

Neat and orderly, but probably not a very good idea. “Apples to apples” means you’re locked into what’s already in the cart, which is what the PBA would like. It’s starting at the wrong end, falling into the trap that already consumed so much of the PBA’s time and money. Instead of deciding among options already on the table, we should be thinking about what would serve us all best and how do we get it. What’s worrisome here is, the PBA carefully excluded certain systems and ideas from its planning work for years and its design consultants were bound by those initial conditions and assumptions. There are, for example, no calculations in the PBA’s charts for the social and economic consequences of the various designs on the citizens of Buffalo. Will the alternative ideas be weakened in the consultants’ eyes because they don’t match the PBA’s applecart? If so, then the entire exercise is pointless. I think “apples and apples” is a crippling metaphor and the sooner the consultants abandon it the better for everybody.

The consulting engineers have produced an engineering report. Nothing inherently wrong or surprising in that: you don’t go to engineers for goals, only for implementation. It’s good to have this preliminary engineering report and it will be good to have the later reports from the binational engineering teams, but they will not in themselves be sufficient to answer the questions being asked by the Review Panel.

As Bill Banas, a leader of the New Millennium group said, “What we’re missing is a bit of vision. I’m an engineer and I know how engineers work. Engineers generally only do what they’re told to do. It’s very easy to determine the constraints,...It’s more difficult to determine what the public wants. That’s the entire point of these hearings.”

WHAT’S MISSING FROM THE REVIEW PANEL’S PLAN
In response to questions raised by Catharine Schweitzer, Seth Grady said, “The emphasis was on function rather than on its impact ultimately on the community, on parks and all the other things that are of interest.” He said that in the next stage they would look at how each bridge and plaza design would have effects on aesthetics and such.

Every time someone asked how the questions of aesthetics were going to be addressed Grady said that was something they’d have to address further on down the line. One time he said, “That’s something that we have not yet fully discussed with our technical subcommittee and with the review panel, exactly the way it will be applied.” This is too vague to be acceptable. It’s good that aesthetics and social issues are now in the list; it’s not good that there is a procedure for handling questions about concrete and steel and no procedure for handling human questions.

Grady seemed to be saying “Trust us.” I trust his engineering skills and his honesty, but not his ability to develop skills he admits he doesn’t have to deal with issues he admits he doesn’t understand. But how will such competence be introduced to the process and by whom? Will the Review Panel provide it? If so, how will that influence the reports and decisions of the American and Canadian engineers? Should aesthetics be included in their report at all, or should it be presented separately to the Review Panel? If the panel doesn’t quickly find a way to make sure aesthetics and social factors are included at the same high level of sophistication as the engineering factors, they’ll leak away.

Perhaps the Review Panel should set up another advisory group, this one dealing with the human issues of this project, so the advice it receives isn’t only technical.  Many members of the Review Panel are educated in and concerned with these issues, but that data shouldn’t come into the discussion only in response to technical reports, and neither should it come into the conversation only in comments from the floor at public sessions. These are central issues, as important as steel and concrete, and they should be treated with the same seriousness.

JUDGE FAHEY KEEPS THEM HONEST
Any thoughts the PBA might have held about still having some wiggle room if things didn’t go the way it wished at the end of the binational process probably vanished in Judge Fahey’s court Friday morning.

The PBA had asked the judge to toss out the suits by the city, the Episcopal Church Home and the Olmsted Conservancy that would force the state DEC to rescind the permits it had issued to the PBA earlier in the year. The PBA had also asked the judge to force the city of Buffalo to give it easements so it could begin construction now.

The judge rejected all the PBA requests, and along the way pointed out that nearly all the cases its lawyers cited were totally inappropriate or significantly misinterpreted. The PBA tried to kick the city out of the suit on a technicality, but the judge ruled that it was the PBA which had bungled the technicality by not raising it in time. He pointed out that the Common Council authorized the mayor to enter into an agreement, but it did not order him to enter into one, and since he never signed off on it, the agreement never existed. “By signing the resolution, the Mayor accepted the grant of authority to act, but he did not obligate himself to act in a specific manner. He did not give up the inherent discretion lodged in his office to later decide not to execute the grant.”

He reserved judgment on the Episcopal Church Home, the Olmsted Conservancy, and the city of Buffalo lawsuits against the DEC. He said that if any of those organizations were not satisfied with the results of the binational process now going on, they were to come back to his court and their cases would go forward.

There’s a deal, but Judge Fahey is keeping the players honest.He could have done nothing, he could have said, “They seem to be agreeing, I’ll wait until they’re done.” He didn’t. He dismissed every one of the PBA’s defensive maneuvers, he said their lawyers had mostly raised irrelevant caselaw, and he kept very much alive the lawsuits that would keep the PBA from putting a shovel in the ground. If at the end of all of this the engineering consultants are befuddled by Parsons’ fifteen-million-dollar mound of data and the Review Panel can’t think of a way to get around a bad report from the engineering consultants, neither of which I think is very likely, then the city, the Episcopal Church home and the Olmsted Concerancy can veto the whole deal. Talk about checks and balances! After all of this, it comes down to the veto power resting in the people, in an old folks home and in the custodians of Frederick Law Olmsted’s vision. It doesn’t get any better than that.

LOOKING AHEAD
Will the Buffalo and Fort Erie Public Bridge Commission deal with the process honorably or will they slip and slide? Are they in the process honestly or are they just playing games in the face of a difficult American legal situation?

I have no idea. Who can predict what anyone will do? If you cross the river, you get fumes of bad faith. According to Fort Erie Times reporter Mike Robinson,

PBA chairman John Lopinski told The Times that, should the signature plan come out on top, the PBA is committed, by the agreement, to “pursuing” the recommended bridge plan, not “building” it. And, after five years of study that has resulted in verifiable facts, figures and permits, he doubts that anyone can come up with a comparable, viable alternative in three months.
This reflects either terrific confidence in what they’ve done thus far or astonishing cynicism about where they are right now. I suspect both. It will be a long time before we know how this apparent deal will really play out.

But that’s not where it ends.

Much was learned in the Peace Bridge War and the question now is, will any of it apply to the next similar event? Many of the same players are involved in the proposed convention center—our elected politicians, the Buffalo News, the Buffalo Niagara Partnership, a variety of companies hoping to make a fat buck on whatever deal goes down. Will they again try to buffalo through a deal made behind closed doors? Will they give the people a voice at the beginning rather than the end? Thus far, it looks like they’ve learned nothing from the Peace Bridge experience: the pols and developers tell us they know what’s best for us and the Buffalo News tells us to shut up and sit down.

It’s slower if you listen to people, but it’s slower still if you ignore them and they have to take you to court to get you to pay attention. That’s one key lesson of the Peace Bridge War. I think people don’t mind losing nearly so much as they mind being ignored. If the convention center developers and the Buffalo News and the Buffalo Niagara Partnership maintain that arrogant posture—‘we’ve giving this our full attention and we’ve made a decision and we know what’s good for you’—we’re going to be going through this whole dreadful dance again in the not very distant future. But there will be one key difference: next time they won’t be able to pretend it’s just the Canadians who’ve been screwing us.

         copyright 1999 Bruce Jackson
 

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