ICC opponents to file lawsuit

Plaintiffs claim highway's approval based on flawed environmental study

November 15, 2006|By Michael Dresser | Michael Dresser,Sun reporter

Alleging that the Ehrlich administration violated federal environmental law, opponents of the proposed Inter-County Connector said yesterday that they will soon file a lawsuit to block construction of the Washington-area toll highway.

The Audubon Naturalist Society and other plaintiffs notified the State Highway Administration that they would ask a federal judge to prevent construction of the ICC. They argue that its approval was based on a flawed environmental study.

This is the second of two planned legal challenges to the proposed $2.4 billion highway connecting Interstate 270 in Gaithersburg and Interstate 95 in Laurel.

The other lawsuit, to be brought by Environmental Defense and the Sierra Club against the state and federal agencies that approved the road, is expected to focus on alleged violations of the federal Clean Air Act. Both must be filed by Dec. 20.

After his election in 2002, Gov. Robert L. Ehrlich Jr. made construction of the ICC - which had been rejected by federal agencies in previous decades - his No. 1 transportation priority. At Ehrlich's request, President Bush put the project on a fast track for federal approval. The Federal Highway Administration gave its final OK to the project last spring.

Neal Fitzpatrick, executive director of the Audubon Naturalist Society, said the Ehrlich administration's environmental impact study was conducted with a predetermined result that the ICC would be approved.

"As we reviewed the environmental impact study, we found the Ehrlich administration has violated the law," Fitzpatrick said.

The Audubon Naturalist Society is a regional organization that is not affiliated with the National Audubon Society. Other plaintiffs are expected to include the Maryland Native Plant Society and some residents who live in the path of the highway.

State Transportation Secretary Robert L. Flanagan said the planned legal action comes as no surprise. "They've been plotting this lawsuit for four years," he said.

He expressed confidence that the state and federal governments can quickly win any lawsuit and stay on track to begin construction next spring. "I'm confident that the work that was done meets and probably far exceeds federal and state standards," Flanagan said.

While Ehrlich will be leaving office in January, Gov.-elect Martin O'Malley has also said he favors construction of the ICC. But environmental groups are hoping that the incoming Democratic governor will be more sensitive to their concerns than the outgoing administration.

The twin lawsuits are a last-ditch effort by ICC opponents to block a highway that has garnered the support of business groups and political leaders, including Ehrlich, O'Malley, Montgomery County Executive Douglas M. Duncan and leaders of the General Assembly.

ICC supporters say the highway is the key to reducing traffic congestion in the Washington suburbs - especially on east-west roads in Montgomery County.

Opponents say it would foul local water supplies, threaten rare species and contribute to pollution of the Chesapeake Bay. They say the state refused to explore more effective and less costly ways of reducing traffic congestion.

ICC foes also say the highway would contribute to air pollution in the region. The other planned lawsuit is expected to contend that state and federal agencies used misleading data from monitoring stations far from highways to reach a conclusion that the ICC would not significantly harm air quality.

Nationally, environmental groups have had a mixed record when they have turned to the courts to block transportation projects approved by federal agencies.

Arnold W. Reitz Jr., director of the Environmental Law Program at George Washington University, said challenges to highways under the National Environmental Policy Act - the law invoked by the Audubon group - are seldom successful.

"With NEPA, eventually you lose," he said. "It's almost impossible to win a NEPA case."

Reitz said lawsuits under the Clean Air Act have fared better in the courts. But he said even a clean air suit faces long odds.

"The other side will come back and razzle-dazzle you with endless computer runs and models," he said, adding that in the end the judge usually backs the government.

Environmental groups have claimed some successes in at least delaying some large projects. In particular, they point to a 2004 court decision in Vermont sending the Federal Highway Administration back to the drawing board on the Chittenden Circumferential Highway around Burlington - one of the other projects "fast-tracked" by Bush.

Laura Olsen, spokeswoman for the Coalition for Smarter Growth, said the aim is to halt the ICC - not modify it. "Certainly our belief is that the ICC is not a done deal and that there are better alternatives," she said.

michael.dresser@baltsun.com

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