Coloring Outside the Lines: Christo’s “Over The River” and the BLM’s Visual Resource Contrast Rating System

Abstract

The above analogy, from a July 2010 article in The New York Times, expressed concern that an Environmental Impact Statement (EIS) was perhaps ill-suited to the task of analyzing a proposed art installation. Could a method of review developed to gauge the likely effects of cattle grazing, timber harvests, and mineral extraction possibly preserve the essence of an artwork? The answer appears to be “yes”--for now. On November 7, 2011, after three years of analysis, the U.S. Bureau of Land Management (BLM) approved a land use authorization permit for “Over the River,” a massive, fleeting, and controversial public art installation conceived by world-renowned environmental artists Christo and Jeanne-Claude. Over the River is the first art project to survive the rigors of an EIS, the highly technical review process required by the National Environmental Policy Act of 1969 (NEPA) for any proposed federal action that poses potentially significant impacts to the environment. The EIS for Over the River ran to 1,686 pages, analyzed six action alternatives, recommended more than 100 mitigation measures, and attracted 4,558 official public comments. By approving a three-year permit for Over the River, the BLM accepted the EIS’s conclusions that the art project was “broadly consistent” with resource management objectives for the affected area, and that proposed mitigation measures would result in “the elimination of any significant, adverse long-term impacts to all resources.” Construction was scheduled to begin in July 2012, and the vision of twenty years finally realized in August 2014. However, beauty is in the eye of the beholder. Take, for instance, the opinion of Ellen Bauder, a leading member of Rags Over the Arkansas River, the grassroots organization intent on stopping Over the River: “I don’t particularly consider it an art project. This is a construction project in my view.” On February 1, 2012, with assistance from students in the Environmental Law Clinic at the University of Denver’s Sturm College of Law, Rags Over the Arkansas River filed a lawsuit in federal court seeking to set aside the BLM’s approval. The Petition for Review of Agency Action alleges that the proposal does not conform to the Royal Gorge Resource Management Plan (RMP), a 150-page document that governs land use decisions in the area that would host the art project. The plaintiff advances several supporting arguments ranging from, inter alia, degradation of bighorn sheep habitat, displacement of anglers, and traffic snarls. In the context of an art project, though, the proposal’s impacts to visual resources may be the most telling. Thus, this Comment focuses on application of the “Visual Resource Contrast Rating System,” the BLM’s homegrown methodology for evaluating a proposed action’s impact on scenic values. On this basis alone, there is at least a chance that Over the River may be doomed to twist in the wind.