Judge removes final ICC roadblock

Work could begin in days on intercounty highway

November 09, 2007|By Michael Dresser | Michael Dresser,SUN REPORTER

A federal judge gave Maryland the go-ahead yesterday to begin construction of a long-debated highway in the Washington suburbs, flatly rejecting environmentalists' challenges to the $2.4 billion project.

Judge Alexander Williams Jr. of the U.S. District Court in Greenbelt denied the plaintiffs' request for an injunction against the Intercounty Connector, a six-lane, 18.8-mile toll road connecting the Interstate 95 corridor with Interstate 270 in Montgomery County.

The judge's decision, unless overturned in what would be a long-shot appeal, removes the final obstacle to construction of the Laurel-to-Gaithersburg highway, first included in Washington-area transportation plans in 1953 as part of an Outer Beltway around Washington.

"We expect to begin full construction in the next few days," said Maryland Transportation Secretary John D. Porcari. He said the full road is scheduled to open in 2012, though sections could be ready as early as 2010.

The decision represents both a victory for Gov. Martin O'Malley, who backs construction of the road, and a measure of vindication for former Gov. Robert L. Ehrlich Jr., who made it the top transportation priority of his administration.

Rick Abbruzzese, O'Malley's press secretary, praised the ruling.

"Certainly it validates the scope of the environmental mitigation effort being undertaken by state and federal agencies involved in the project," Abbruzzese said. "Clearly, the ICC is an important component of the state's strategy for improving transportation in the region."

Proponents call the ICC, a top goal of state business leaders, an important tool for reducing congestion in the Washington region and a vital link between the Baltimore area and the high-tech employment center of northern Montgomery County. But environmentalists and many who live along the corridor have described the project as nothing less than a disaster.

For decades, the highway has been a contentious project - at times appearing dead only to rise again.

Twice - in 1983 and 1997 - the U.S. Environmental Protection Agency blocked the road, ruling that it would be too damaging to the parks and waterways it would traverse.

But in a 106-page opinion, Williams ruled that state and federal officials fixed the environmental problems that scuttled earlier versions of the ICC.

"What seems abundantly clear to this Court is that Defendants went back to the drawing board, recommenced their study for the proposed project, and thoroughly considered, examined, and, most importantly, corrected the deficiencies from previous failed attempts," he wrote.

Plaintiffs could still appeal, but they would be taking their case to the 4th U.S. Circuit Court of Appeals in Richmond, Va. - one of the nation's most conservative appellate panels.

"It's not considered a Court of Appeals filled with many environmentalists," said Arnold W. Reitze Jr., director of the Environmental Law Program at George Washington University.

Reitze said the plaintiffs faced a difficult hurdle at the trial court level - and could face an even steeper one on appeal - because of the deference that courts normally grant to executive agencies' decisions. In his opinion, Williams batted down challenge after challenge by stressing an obligation to defer to state and federal findings.

Robert Grow, government relations director for the Greater Washington Board of Trade, called the decision a victory for "common sense" after five decades of "study, delay and indecision."

"As far as we can see, this is the end of a long ballgame," he said. "It's a clear decision. There are no hanging chads. The debate is over."

A spokesman for one of the plaintiffs expressed deep disappointment with the ruling.

"We lost on everything," said Steve Caflisch, transportation chair for the Maryland Sierra Club. He declined to comment on an appeal, saying the plaintiffs need time to go through the decision carefully.

But Caflisch conceded that unless the judge were to stay or reconsider his decision, there is nothing to stop the bulldozers from rolling.

Robert E. Yuhnke, lead attorney for the Sierra Club and Environmental Defense, noted that a judicial order limiting the type of work the state could do expired with yesterday's ruling. He said the earliest his clients could go to court to seek a stay is Tuesday.

Less than a decade ago, the ICC appeared to be dead.

In 1999, Gov. Parris N. Glendening - a one-time proponent of the ICC - withdrew his support from the project and declared that the highway should not be built because of its environmental impact.

Glendening attempted to ensure the road's demise by selling off state-controlled land in its path but was frustrated when the other two members of the state Board of Public Works refused to go along with his plans.

The ICC achieved a political resurrection with Ehrlich's election as governor in 2002. Even before his election, he intervened as a congressman with President Bush to get the project put on a "fast track" for federal approval.

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