Maryland Residents and Environmental Groups File Legal Challenge Against State, Federal Agencies

Residents along the controversial proposed 18-mile intercounty connector (ICC) toll highway in Montgomery and Prince George's Counties have joined environmental groups to challenge the legality of state and federal decisions that threaten communities and natural resources, including the Chesapeake Bay. One of two court challenges filed today is the first case nationwide to seek to hold federal transportation agencies accountable under a recently amended law that requires minimizing transportation-related fuel consumption and air pollution to promote energy security and combat global warming.

"The Ehrlich Administration and federal agencies illegally dismissed a set of transportation projects that would provide more travel benefits and protect communities, parks and the Chesapeake Bay," said Neal Fitzpatrick, Executive Director of the Audubon Naturalist Society. "These alternatives would cost far less than the proposed ICC. Clearly, the ICC is a bad deal, not a done deal."

Individuals and organizations, including Environmental Defense, Sierra Club, Maryland Native Plant Society and Audubon Naturalist Society, have sought an objective analysis of options to address the traffic problems and transportation needs of area residents since Governor Ehrlich launched another study of the proposed ICC in 2003. The federal and state agencies failed to look at alternatives or adequately assess the health and environmental impacts, so these groups were forced to take their concerns to the courts in order to protect the interests of state residents.

"The science is in: toxic vehicle exhaust from major highways like the ICC can poison anyone in close proximity to the road," said Connie McKenna, a member of both Environmental Defense and the Sierra Club. McKenna lives on Briardale Road in Derwood next to the proposed six-lane toll road that would allow 18-wheel trucks to spew diesel exhaust fumes as they pass by her home. "I am terrified for my son who, like many children along the ICC right-of-way, suffers from asthma. My cousin's first asthma attack killed her."

In fact, the state's own study shows that the ICC would boost traffic on parts of I-370, I-270, I-95, the Beltway and on many local north-south roads, causing increased pollution at sensitive sites near these roads, such as Montgomery Blair High School and Holy Cross Hospital.

In two different legal cases, four environmental groups and several individuals are challenging the approval of the proposed $3 billion ICC.

Environmental Defense & Sierra Club
In DC District Court, Environmental Defense and the Sierra Club are contesting the air quality analysis conducted by the Federal Highway Administration and Metropolitan Washington's Transportation Planning Board. The plaintiffs also seek to reduce global warming impacts from transportation by enforcing the recently enacted Safe, Accountable, Flexible, and Efficient Transportation Equity Act, which requires transportation agencies to choose transportation alternatives that minimize greenhouse gas emissions. 1) The ICC was approved without a proper evaluation of its effects on local particle pollution. 2), the air pollution analysis failed to quantify the impacts of dangerous toxic pollutants for which Maryland has set standards, but EPA has not set federal standards. 3) Congress last year strengthened a requirement in federal transportation law requiring that the transportation projects added to a metropolitan transportation system be funded only if they "minimize fuel consumption."

Audubon Naturalist Society, Maryland Native Plant Society & the
Metcalf- Burton Family
In the US District Court for Maryland, Audubon Naturalist Society of the Central Atlantic States, Maryland Native Plant Society, and Roger Metcalf and Eve Burton, property owners who would lose their home in Derwood, MD to the ICC, are challenging the US Department of Transportation and other agencies' approval of the ICC because the agencies failed to consider reasonable alternatives and the full environmental impact of the proposed toll road, as required by the National Environmental Policy Act (NEPA) and other statutes. In addition, the agencies violated federal regulations by failing to consider whether the project would turn its back on Maryland laws protecting rare, threatened, and endangered species and habitat.

Air Pollution, Public Health
Environmental Defense and Sierra Club argue that the ICC was approved without a proper evaluation of the effects of the ICC on local air pollution and public health. The approval assumed that monitors located more than 1 1/2 miles from major highways are representative of the pollution levels experienced by neighborhoods, schools, and parks in immediate proximity to major highways such as I-95, I-270, and I-370. The ICC would increase traffic and pollution on these and other highways. Monitoring of soot pollution close to these roads is needed to ensure that the ICC would not exacerbate existing violations of federal air pollution health standards designed to protect the health of people living, working, or going to schools in our communities (view the complaint).

The American Academy of Pediatrics recently recommended protecting children from the harmful effects of air pollution by not locating schools near highways. California has banned new schools from locations within 500 feet of major highways based on recent research that links motor vehicle emissions to adverse health effects suffered by children. Yet located within 500 feet of the proposed ICC route are: Drew Elementary School; East
Norbeck Park; Northwest Branch Recreational Park; Layhill Park; Rock Creek Regional Park; and ball fields and playgrounds near Royal Forest in Colesville.

"The proposed ICC would deliver health risks without curing our transportation ills," said John Balbus, MD, MPH, the Health Program Director at Environmental Defense who also is a Sierra Club member and founding Director of the Center for Risk Science and Public Health at George Washington University. "Children and adults already suffering from asthma, emphysema, chronic bronchitis and heart disease will be most likely to be affected. Even fetuses appear to be vulnerable to the adverse health effects of motor vehicle-related pollutants."

Consideration of Environmental Impacts & Reasonable Alternatives
In a separate legal challenge, Audubon Naturalist Society, Maryland Native Plant Society, and the Metcalf-Burton family argue the agencies violated their responsibility to consider reasonable alternatives that could improve mobility in the area with less harm to the environment, water quality, and parks. From the date of the NEPA's enactment, courts have recognized that the alternatives analysis is the heart of an Environmental Impact Study (EIS), yet the Ehrlich Administration refused throughout the study to consider anything but building a new east-west toll road on two significantly overlapping routes.

"Our challenge maintains that Federal Highway Administration and U.S. Department of Transportation so narrowly defined the scope, purpose, and need of the project during the NEPA process that anything other than the six-lane east-west toll highway was not considered," noted Fitzpatrick. "The ICC would severely damage or destroy high quality natural resources and ensure continued governmental inattention to truly significant transportation problems in suburban Maryland which continue to plague millions for lack of funding."

These groups are also challenging the approach used to assess and weigh impacts to air, forests, water quality, parks and rare and endangered species. The federal agencies rely on only what is in the study for their review and assessment, so incomplete, inconsistent or skewed information can bias the agencies review. This is how the deficiencies of the EIS have infected not only Federal Highway Administration and U.S. Department of
Transportation's project approvals, but also the Army Corps of Engineers' approval of a permit that would allow Maryland agencies to fill in wetlands and other water bodies to construct the ICC.

"Throughout the study, the state failed to identify the extensive environmental impacts of the proposed 18-mile road," noted John Parrish, Vice- President of the Maryland Native Plant Society. "Restoration of the Anacostia River and Chesapeake Bay depends on maintaining and restoring forest cover. Losing 700 acres of forest, including rare species, is simply unacceptable in light of better performing, less harmful alternatives."

Independent experts found four practical, cost-effective options perform better than the ICC on most measures, including reducing traffic, air pollution and overall cost.(1) These alternatives include enhancing bus and rail transit, upgrading existing highways, fixing local roads, time-of-day tolling, encouraging more development near Metro stations, and balancing job growth across the region.

"It is important to remember that state officials don't have to wait for the courts to address traffic and protect communities and the environment. Governor-elect O'Malley and state and local officials have a new opportunity to rethink the state's transportation needs," said Betsy Johnson, Chair of the Maryland Chapter of the Sierra Club. "Now is the time to prioritize our limited transportation funds on transit in Baltimore and the Washington suburbs as well fixing local roads statewide."

This article originally appeared in the 01/01/2007 issue of Environmental Protection.

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