Riverkeeper, a nonprofit environmental organization that has been closely watching the AirTrain project and its effects on local waterways, submitted a Freedom of Information Act (FOIL) request last December.
The group asked the Port Authority to produce documents on their communications with both private entities and the FAA regarding environmental review. The PA agreed to release communications with private entities, but not with the FAA.
Riverkeeper then appealed the decision in court and won. Justice Carol Edmead, writing that the Port Authority’s arguments had “no legs,” ordered the agency to disclose all outstanding materials sought by Riverkeeper within 30 days, and to pay for their attorney’s fees.
Senior attorney Mike Dulong said in a statement that the decision confirms that the public is entitled to see communications between the Port Authority and the FAA.
“These communications are necessary to determine whether the environmental and community impact review of Port Authority’s proposed AirTrain project will be full and impartial,” he said.
“To guarantee that such a major piece of infrastructure, costing upwards of $2 billion, is in the best interests of the region and has the least impact on local communities, we must be assured that the environmental review process is objective,” Dulong added.
According to the judge’s decision, Riverkeeper filed an Article 78 proceeding on July 22 to contest the Port Authority’s decision to deny disclosure of the communications.
The PA responded in September, arguing that two exemptions, deliberative process and common interest, were applicable. The deliberative process exemption allows “pre-decision inter-agency or intra-agency materials” to be protected from disclosure.
But Edmead wrote in her ruling that the Court of Appeals made it clear that the definition of “agency renders the inter-agency exemption inapplicable to communications with a federal agency.”
The FAA is a federal agency, and therefore is excluded from the exemption, Riverkeeper argued.
Edmead also ruled that the Port Authority cited “no authority” nor any documentary evidence that the agency and the FAA established a “common interest.” The FAA is a federal agency reviewing and approving plans of a state agency, the judge wrote.
“They are not two parties with a common interest working together toward a shared goal,” Edmead wrote. “They have their own independent interests.”
Riverkeeper was also awarded attorneys’ fees and litigation costs, an amount to be determined at a later date, because the Port Authority “had no reasonable basis for denying access” to the FOIL documents, Edmead ruled.
In a statement, a Port Authority spokesperson said the agency is committed to transparency and community engagement as a “core component” across its portfolio of transportation infrastructure projects, including the AirTrain.
The Port Authority published “several key documents” regarding this project, including an analysis of various alternatives, ridership projections and a study examining increases in congestion in October 2018, the spokesperson said, ahead of the formal environmental review process.
“The review has included several community forums to-date and will feature additional community meetings as the process continues, supplementing the multiple briefings we have conducted with various community and elected stakeholders,” the spokesperson said. “This input and the formal analysis are instrumental to identifying the project’s impacts and most effective ways to mitigate them.”