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The Obama Presidential Center Nuisance
I argued last week before the Seventh Circuit Court of Appeals on behalf of Protect Our Parks, which sued the City of Chicago in order to stop the construction of the Obama Presidential Center (OPC) in Jackson Park. The OPC is not a Presidential Library, and it serves no official public function. At this time, it is useful to put the current litigation in its larger context, given the other regulatory obstacles relating to historical preservation and environmental protection that must be overcome to allow the Obama Foundation to build the OPC in Jackson Park.
To set the stage, the social case for keeping the OPC out of Jackson Park is powerful. The entire venture envisions a constellation of four separate buildings constructed on a 19.3-acre site located on the northwest side of Jackson Park, close to the Griffin Museum of Science and Industry. The Park was designed in 1871 by the great landscape architect Frederick Law Olmsted. It was placed on the National Register of Historic Places in 1972. Consistent with the original plan, it incorporated large bodies of water, including the east and west lagoon, with direct connections to Lake Michigan. The four buildings of the planned OPC include a 235-foot museum tower, a conference center, an athletic center, and a new branch of the Chicago public library, all serviced by a 400-car underground garage.
In order to put this center in place, it will be necessary to, first, close Cornell Drive, a major six-lane north-south road (and a key original element of the Olmsted design) that connects South Chicago and Indiana to the loop, and to, second, limit access to three other roads, including the Midway Plaisance that connects the University of Chicago campus to Lake Shore Drive, the major thoroughfare along Lake Michigan. Shutting down these roads to make way for the OPC will require expanding two other thoroughfares, Lake Shore Drive to the east and Stony Island Avenue on the west. Those two additions will both narrow Jackson Park, as well as ensnarl heavy traffic throughout the area.
It will cost around $175 million to rip out and reengineer the roads. An estimated fair market value of the land donated to the OPC on a 99-year land-use agreement—read lease—is probably worth close to $200 million. In addition, the various construction projects will require the removal of 400 old-growth trees to make way for the OPC and its various “improvements” and “enhancements” to the area, as the City likes to describe them. The cash consideration to the City is $10.
Jackson Park is not the only site on the South Side of Chicago that could accommodate the OPC. Due west of Jackson Park, in the Washington Park area, lie a number of suitable private sites all nearer to public roads and transportations. An OPC at any one of these locations would be much more capable of generating the economic activities needed to revitalize the sluggish South Side economy.
Moreover, some 50 years before the Obama Foundation chose Jackson Park as its site, the United States passed three regulatory schemes that each pose serious roadblocks to any major construction project like the OPC. These are Section 106 of the National Historic Preservation Act of 1966 (NHPA), the National Environmental Policy Act of 1970 (NEPA), and Section 4(f) of the United States Transportation Act of 1966 (USDOT). Each of these statutes envisions a lengthy review process before construction may begin.
As most of the legal activity thus far has implicated the NHPA, I shall concentrate on the ongoing Section 106 proceedings. The purpose of Section 106 of the NHPA is to require each federal agency—here the National Park Service and the Federal Highway Administration—to identify and assess the impact of a new project on historical buildings. To do so, the statute requires the reviewing agencies to implement an elaborate, often contentious administrative process before any project can receive its approval.
The range of adverse effects of new construction under Section 106 is not limited to physical changes to the historical site. It also covers the cumulative effects which “diminish the historic property’s overall integrity by altering historic, internal spatial divisions that were designed as a single entity,” including its impact on “interconnected systems of pedestrian and vehicular circulation.”
The planned OPC clearly falls right into the crosshairs of this prohibition, insofar as its proposed alterations to Jackson Park negatively impact each and every one of these objectives, given its massive impact. These were the unambiguous conclusions reached in a comprehensive report about the OPC prepared by a group led by the Chicago Department of Planning and Development for the National Park Service, the Federal Highway Administration, and the Illinois Department of Transportation. The report was initially released in July 2019 and finalized in January 2020.
Under the NHPA, a prime objective of its evaluation process is to choose responses that “avoid, minimize or mitigate” those adverse effects. These three tests are rightly meant to be considered in strict sequence.
Avoidance is the best way to remove adverse effects because it involves relocating to some other area. With the OPC, the abundance of sites on the South Side of Chicago makes it easy to avoid a radical, permanent transformation of Jackson Park. If avoidance is not possible, the second option involves the minimization of adverse effects, which essentially contemplates a project redesign in its initial location that, by reducing the size of its footprint and bulk, also reduces its tangible and intangible effects. As an example, this could require shrinking the OPC tower, removing the public library, or leaving open Cornell Drive and the Midway. Mitigation is the least effective of these three devices in addressing adverse effects, because such measures typically involve leaving a project like the OPC as is and taking additional steps to soften its effects, such as planting small new trees in Jackson Park or using photographs, plaques, and other displays to remind everyone of its former glory.
Under NHPA, construction cannot begin until the Section 106 process is completed. That Section 106 Report, or Assessment of Effects, moreover, will be subject to judicial challenge for its statutory compliance, completeness, and accuracy even after its release. However, NHPA is merely a disclosure statute, which means that it cannot block any project of which it disapproves. This institutional arrangement allows the City to continue with the Section 106 process once the project is properly reviewed and a memorandum of agreement is reached among certain parties with jurisdiction. It is unlikely that the project would be abandoned after the completion of the Section 106 process, as the Federal Highway Administration has ignored any potential form of avoidance or minimization. At a recent public hearing, the Federal Highway Administration confirmed that avoidance and minimization were off the table.
As part of the Illinois Department of Transportation’s effort to soften the blow, its architectural historian prepared a report that concluded, without any explanation or opportunity for public comment, that the adverse effect on the Park “will not sufficiently diminish or remove the overall integrity of the historic district in such a way that it would no longer qualify for NRHP listing.” Irrespective of this hurried and convenient submission, the entire review under NHPA is surely headed for litigation.
Similar issues regarding environmental impact will arise under NEPA, which has generally gone far—in my opinion, too far—in requiring exhaustive disclosures on how a new project might spark potentially harmful but unlikely environmental consequences. But, as I have written in a prepared statement for ConservAmerica, the one case that cries out for an exhaustive NEPA review is the OPC, whose effects in ripping out roads and cutting down trees are major, immediate, and certain. The NEPA review process has yet to begin, but if it results in similarly damning conclusions as the report on adverse historical effects, it too is headed for litigation.
The third of the aforementioned provisions, referred to as Section 4(f) review, is not simply a disclosure statute, but also gives the federal government veto power relative to the provision of funding—it mandates that the Federal Highway Administration and other DOT agencies cannot approve the funding for the use of land from publicly owned parks, recreational areas, wildlife and waterfowl refuges, or public and private historical sites unless the following conditions apply:
There is no feasible and prudent avoidance alternative to the use of land; and the action includes all possible planning to minimize harm to the property resulting from such use;
OR
The Administration determines that the use of the property will have a de minimis impact.
It strains credulity to suggest that the OPC meets either of these conditions. However, federal officials are already seeking to bypass the Section 4(f) provision by insisting that there are actually two projects here—the first, they argue, is a local project that constructs the OPC proper, which is outside the scope of federal review; and the second is the subsequent road reconstruction, which is admittedly subject to federal review under Section 4(f). But that interpretation is flatly inconsistent with Citizens to Preserve Overton Park v. Volpe (1971), which held that Section 4(f) “is a plain and explicit bar to the use of federal funds for construction of highways through parks—only the most unusual situations are exempted.” Surely the OPC, which is far easier to site than the proposed six-lane highway of Overton Park, should be subject to the same exacting standard.
At this point, someone might be tempted to ask, what’s the big deal? After all, Jackson Park will remain a public park even if the OPC is constructed. And the Mona Lisa would remain a painting if her quizzical face were adorned with a red mustache and goatee.
© 2020 by the Board of Trustees of Leland Stanford Junior University.
Published in Law
Just part of the Evil of Obama. It never ends. He is our better and we should not question.
Sadly, after I read this post, I thought to myself, “Yeah, but this is Chicago we’re talking about here. Why should the law matter as long as you have the right connections with the right people?”
Why does no one in the Press, press Mr Obama about this?
They have more important things to do, such as suppressing information about Michael Flynn’s case.
Isn’t the libertarian thing to do to just let the City decide what to build in its own parks?
As a resident of Hyde Park, I can’t say I’m much thrilled about the project, on the other hand I also live far enough away from it that I doubt its construction will bother me. Still, this thing is going up somewhere around the University of Chicago I feel. I doubt there is another plot of land around this area that actually works better. I just wish it looked better physically than what it does, rather than changing the spot where it is going they should just seek to make it less ugly. That would seem a fair compromise to me. Though maybe like the Sydney Opera House or the Eiffel Tower we just don’t know what we will have until we get it and it becomes iconic. Though given its location I think it isn’t prominent enough to become that.
Maybe their problem is, that it isn’t grandiose enough. It is just large enough to be a bother but not large enough to be impressive. They should just combine all the buildings into a 1000 foot tall Skyscraper. Make it a real land mark to be seen from mile around. Covered in pure Carrara marble. True ivory tower as it were. If you make it in a Neo Classical style it would even fit with the Museum of Science and Industry look. The White Tower of Chicago, our own White Tower of Echthelion.
And besides, we have all learned that it is beyond the pale to suggest what questions the press ought to press…
The city of Chicago may do what it wants. But every time I look at the artist’s rendering of this proposed excrescence, I am reminded of Shelley’s poem–you know, the one about the “vast and legless trunk of stone.” And that bit about the “frown, And wrinkled lip, and sneer of cold command.” LOL.
I’m guessing the O’s haven’t read much of the Romantic oeuvre.
I used to work at 79th and Jeffery and drove through Jackson Park every day. It is a gem, a much-needed place of beauty on the south side. I also, along with countless others, regularly take Cornell Drive to Stoney on the way to the Skyway. I pray you are successful in stopping this attempt to destroy the neighborhood. The Mona Lisa may be a beautiful painting, but the ancient trees and the beauty of Jackson Park comes from God.
But the cenotaph comes from the God King Obama. Your trees are totally insignificant in comparison to that.
I would have thought being on a National Historic Register would make calling this a no-go a no-brainer . . .
Okay then. But there is already a golf course in the park. Don’t destroy the golf course.
(Actually, I went over to the Jackson Park Golf association website and they are all in. They think that Barry’s development will bring a PGA tournament and lots of money. Jackson Park is where people go at 6am and carry their own clubs to get a round in before work. It isn’t always if you build it they will come.)
My grandfather was a groundskeeper at U of C during WWII and later. I am sure he is rolling in his grave to think of the damage that could be done to that beautiful area. There are few decent places on the South Side as this.
Tear up Ford City Mall and put this proposed mess there. Convenient to MDW and the Stevenson Expressway, and would improve the area to no detriment to a beautiful area. Fifteen miles to downtown. I grew up nearby and know the area could use some revitalization. I know it’s a pipe dream for me to think that tearing up an aging mall and instead putting up this nonsense rather than destroy a truly beautiful park for an ego trip.
Thank you Richard Epstein for your hard work on this suit! I for one am a grateful forever-Chicagoan for your efforts!
PS – I am still voting in C(r)ook County despite moving away in the 90s. The voter registration cards show up at Mom’s house all the time. I may not be actually voting but someone is on my behalf…and I’m pretty sure that person is voting D
As long as the main building is empty and hollow at its core, this will be a fitting tribute to Obama the man…
That’s what you literary types would see. All I see is an upturned Chinese takeout box.
Who is the “city”?
the mayor? city council? people who live in or near Jackson Park?