-Background/Politics - Recent Federal Court Ruling/NEPA by Mark Nishanian -Interview/Political Issues -Mitigation Effort

1. -Background/Politics-Recent Federal Court Ruling/NEPAby Mark Nishanian-Interview/Political Issues-Mitigation Effortsby S. Usman Ali ICC Report:

2. Latest lawsuit for ICC • Plaintiffs: Audubon Society/Environmental Defense/Sierra Club • Defendants: USDOT/FHWA/MDOT • Plaintiffs claim that in reaching the decision to approve the ICC, Defendants did not adequately discharge various statutory duties with respect to:

3. Latest lawsuit for ICC • NEPA and its Regulations • Dept. of Transportation Act of 1966 • Administrative Procedure Act • Clean Water Act • Clean Air Act • SAFETEA-LU • Federal-Aid Highway Act

4. Background for the ICC • First NEPA analysis for ICC started in 1979 as DEIS was published in July 1893. • 2nd attempt at an ICC study began in 1991 and the DEIS was published in March 1997 • Neither study proceeded beyond the preliminary stage. • Both times, the studies were abandoned due to environmental concerns by reviewing agencies and political issues over the ICC location.

5. Background for the ICC • In 1998, Maryland Governor Glendening commissioned an expert panel known as the Transportation Solution Group (TSG) to investigate short and long term solutions. • TSG recommended various solutions but said: “Priority should be given first to vehicle reduction measures” as they did unanimously recommend a package of land use, transit oriented development, and travel demand management. • This included economic incentives for mass transit or car pooling, living close to jobs, building bicycle and pedestrian amenities, improving bus service, and studying expansion of Metrorail purple line.

6. Background for the ICC • TSG did not specifically agree on the ICC, though a majority of the members supported a tolled-limited access highway connecting Montgomery and Prince George’s Counties. • Based on this and comments from public and governmental agencies, in September 1999, the governor cancelled the ICC because the impacts outweighed benefits.

7. Background for the ICC • In 2002, President Bush issued Executive Order 13274 and Republican candidate Robert Ehrlich was elected Governor of Maryland. • In 2003, Ehrlich reopened ICC debate as US Dept Transportation designated ICC as a “priority project” allowing it to receive accelerated environmental review under Executive Order 13274. • Elections have consequences. • DEIS for ICC was issued in November 2004 by MDOT and FHWA

8. Background for the ICC • Opponents of the ICC claim that this 2004 DEIS is limited in scope as it does not consider other viable options. • Opponents claim that the needs that the ICC would fulfill could be addressed by a variety of other transportation facilities and strategies not even considered.

9. Background for the ICC • Opponents to ICC also claim: • High cost • Would Not solve regions traffic problems • Promote sprawl development • Harm the environment: wetlands, forests, watershed, air quality

10. Background for the ICC • Lead agencies for ICC started NEPA process in 2003: • Public hearings attended by some 800 citizens. • Followed by public workshops attended by some 1200 citizens. • Followed in 2005 by Four public county hearings attended by 1881 persons with more than 700 providing testimony or written comments.

11. Background for the ICC • Over 3800 comment letters were submitted after the DEIS publication. • Over 785 letters were submitted following the publication of the FEIS including comments from local, state, and federal agencies. • Including extensive comments submitted by the plaintiffs.

12. US District Court Review • Claims brought under NEPA, CWA, CAA are subject to judicial review under Administrative Procedure Act (APA) as neither of these statues provide an independent cause of action. • Generally, the role of a reviewing court is limited. Standard of review of an agency’s action is one that is highly deferential to the agency.

13. US District Court Review • Court’s role is only to asses whether the agency’s decision is “within the bounds of reasoned decision-making” • Decision is based on the established administrative record and not from “de novo” inquiry. • Court must uphold agency action unless it was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”

14. US District Court Review • Plaintiffs argument: • (1) Defendants narrowly constructed the “purpose and need” statement as to exclude reasonable alternatives. • (2) Defendants failed to consider reasonable alternatives, including alternatives presented by plaintiffs. • (3) Defendants failed to consider and study adverse environmental impacts.

15. US District Court Review • In looking at argument (3) at air and traffic impacts: • Plaintiffs argued that the FEIS should have included the latest air and traffic modeling forecast tool (Round 6.4A) which incorporates secondary and induced growth impacts. • This new version became available two months before the DEIS was released.

16. US District Court Review • Court cited that the defendants did not ignore the latest impact modeling. • Instead of re-calculating the traffic model with the secondary and cumulative effects study, defendants conducted a limited “sensitivity analysis”. • This “sensitivity analysis” showed that the 2030 traffic forecast increased slightly and would not result in congestion.

17. US District Court Review • Court does admit that the defendants did not rely on the latest modeling tool. • Court also states that Federal agencies are not obligated to restart the NEPA process every time new information becomes available. • New model became available right before DEIS and thus a “sensitivity analysis” was conducted instead.

18. US District Court Review • Court believes that refusal to re-calculate the traffic model did not preclude informed decision-making and informed public participation. • Court cited “Congress did not intend to mandate perfection” when it created NEPA. • Thus, court finds that defendants complied with NEPA and did not act arbitrarily and capriciously by not relying on the latest forecast.

19. US District Court Review • With respect to argument #2, an EIS must discuss reasonable alternatives “to the proposed action” as this the heart of the EIS. • The agencies did include alternatives in the EIS as shown in the record. • However, NEPA does not require that agencies take one type of action over another when determining what alternatives are reasonable.

20. US District Court Review • With respect to purpose and need argument #1, as long as the agencies take a hard look and is reasonable, court will not disturb the agency’s decision. • In fact, court ruled in favor of the defendants on all of plaintiffs arguments citing the administrative record, federal statues and limitations, prior relevant cases and giving deference to the agencies’ decision. • Court repeatedly ruled that the defendant did not act arbitrarily and capriciously.

21. Interview of Air Quality/Political issues of ICC

22. Introduction • Interviewed Mike Kelley of Wilson T. Ballard • Noise and Air Quality Manager for ICC • Working on ICC project for 20+ years

23. Air Quality Issues on ICC • Concern from citizens that project will deteriorate existing air quality • Additional pollution would be hazardous for children and the elderly • Roadway would lead to more traffic, causing more pollution • “Not in my Backyard”

24. Existing AQ & Modeling • Currently in non-attainment for Ozone and PM2.5 • Ran own model for CO, PM2.5, and Mobile Source Air Toxics • Used region-wide model for Ozone using data from MWCOG • Used Mobile 6.2 and CAL3QHC (dispersion model)

25. Sample Question Asked • Q: How was this project approved, even though the area is currently in non-attainment for Ozone and PM2.5? • A: We had to prove the project will not add pollution. Please refer to the AQTR for additional information on that. The project does not necessarily add more pollution, but is a reshifting of original patterns.

26. Political Environment of ICC • Largely located in Montgomery County, a wealthy jurisdiction in Maryland,with many educated professionals. • “Environmentally-Friendly” culture in county • Opposed to new Roads, prefer to preserve original environment.

27. Other Environmental Issues • Concern about Wetland disturbance • Extra noise/blight from highway • Archaeological concerns, from disturbance of Native American sites • Residents desire for rural/isolated environment

28. Mitigation Efforts

29. Environmental Mitigation • Over 50 design-build contracts for environmental mitigation • Contracts are for about 70 sites, and have an estimated value of over $97 million

30. Compensatory Mitigation • Required mitigation to compensate for “unavoidable” impacts • Water Quality improvements to 350 acres of drainage area • 21,000 linear feet of steam restoration • 1,500 linear feet of fish passage restoration • Creation of 83 acres of wetlands

31. Environmental Stewardship Contracts • Voluntary enhancements to the natural environment • Stormwater management retrofits to benefit an drainage area of 4,350 acres • Stream restoration improvements of approx. 53,000 linear feet • Creation of 5 acres of wetlands

36. Northern Virginia Inter-County Connector November 28, 2007 Tuan Ngo

37. ICC Obstacles • Legal issues • Past (Environmental Defense and the Sierra Club ) • Present • Finical issues • funding • Others • Oil dependency • ICC other purpose

38. Legal Issues (Past) • In 1983 and 1997 - the U.S. Environmental Protection Agency (EPA) blocked the road, ruling that it would be too damaging to the parks and waterways it would traverse. • 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. 1 • Environmental Defense and the Sierra Club, • A study commissioned by one of them shows that construction of the 18-mile Inter-County Connector would violate tightened federal air-quality health standards on soot -- the fine particles emitted in vehicle exhaust and other forms of combustion. 2 • New evidence that children and other residents living along the route could be harmed by pollutants from the traffic. 2 • Contending that the federal government failed to thoroughly review the potential harm the highway could cause to the environment and to people living along the route. 2

39. Legal Issues (Present) • In December, a coalition of environmental groups and Montgomery County residents filed lawsuits against several U.S. agencies • claimed agencies relied on state and federal studies that violated federal law by understating the environmental damage the highway would cause. • claimed officials violated the law by failing to consider mass transit options. 1 (Judge Williams rejected). • In a 106-page opinion, Williams ruled that state and federal officials fixed the environmental problems that scuttled earlier versions of the ICC. 1 • Judge Alexander Williams Jr. of the U.S. District Court in Greenbelt denied the plaintiffs' (environmentalists' challenges) request for an injunction against the Inter-County Connector (Laurel-to-Gaithersburg highway), a six-lane, 18.8-mile toll road connecting the Interstate 95 corridor with Interstate 270 in Montgomery County.

40. Facts • SAFTEA-LU’s “multimodal” definition shows ICC has not met purpose and need for multimodal facility. 5 • The Build Alternatives for the ICC have been conceived as multimodal tolled highways that would support Express Bus, HOV, and other transportation management strategies. p. IV-341 • The ICC EIS does not have more than one United States Department of Transportation administration or agency, and does not include new facilities for dedicated transit.

41. Finical issues • The report, commissioned by 1000 Friends of Maryland, cautions that the ICC's $2.4 billion price tag. • ICC could jeopardize the state's ability to pay for other highway and transit projects, especially those planned to handle thousands of new jobs and households coming to the Baltimore area in the next several years with military base realignment. 3 • The 18-mile toll highway also could attract more development along its path than originally predicted, the report says, while siphoning businesses and residents from cities and inner suburbs. 3 • Raising the gas taxes. • Issuing bonds. 6

42. Others: Oil dependency • The ICC's impact : • increasing petroleum demand • increase in global warming pollution, which is raising temperatures at an unprecedented rate and creating grave risks of climate disruption. 4

43. Others: Oil dependency

44. ICC other purpose • 2005 DEIS comments: • The real, covert purpose of the ICC is to connect military contractors along I-270 with NSA and related contractors in the business “parks” near Fort Meade.5 • 2005 and February 2006 FEIS comments: • The SDEIS also needs to address the serious privacy concerns of a completely electronic tolled road given the massive, unconstitutional surveillance programs run by NSA and other federal agencies.5

45. References 1) http://www.baltimoresun.com/news/traffic/bal-te.md.icc09nov09,0,5716641.story 2) http://www.baltimoresun.com/news/traffic/bal-md.icc13jun13,0,7520511.story 3) http://www.baltimoresun.com/news/traffic/bal-md.icc21mar21,0,3719408.story 4) http://www.environmentaldefense.org/documents/4339_ICC_oilGlobalWarming.pdf 5) http://www.permatopia.com/icc/extra-comments.pdf 6) http://www.washingtonpost.com/wp-dyn/articles/A8934-2005Mar4.html