Agencies Accused of Wrongly Approving Md. Highway Study

By Katherine Shaver
Washington Post Staff Writer
Tuesday, October 2, 2007

Maryland highway officials who emphasized the thousands of jobs that an intercounty connector would generate failed to consider the additional traffic that would follow and what that extra vehicle exhaust would do to the health of schoolchildren and elderly people nearby, highway opponents argued in U.S. District Court yesterday.

Several environmental groups suing to stop the 18-mile highway between Gaithersburg and Laurel tried to put a human face on the impact of a six-lane toll road that, after 50 years of public debate, will have its future decided by a federal judge in Greenbelt.

"The plaintiffs aren't saying never build another road," said Erik Bluemel, who represented Environmental Defense and Sierra Club in one of two lawsuits that have been consolidated into one case. "The plaintiffs are just saying, 'Look at what you're supposed to look at.' " They are accusing several federal agencies of violating the law by approving a faulty state environmental study.

Lawyers for the federal agencies said government officials found "minor impacts, if any" on nearby schoolchildren and residents. Wells Burgess, a Justice Department attorney for the Federal Highway Administration, said the government studied the road's health impacts as part of a "comprehensive and copious" environmental review that followed all legal requirements.

U.S. District Judge Alexander Williams Jr. told the 15 lawyers -- 10 for the government and five for the environmental groups -- and a standing-room-only crowd of 90 courtroom observers that he plans to make a decision in several weeks. Williams said he recognized the fact that construction permits are pending on the highway.

The state had planned to break ground Oct. 16. However, it also promised as part of the court case to hold off on major work until the lawsuits are resolved.

Williams said he will decide the lawsuits' other allegations, which pertain to air quality, separately. A hearing on those issues is scheduled for Oct. 29.

His decision will determine whether the $2.4 billion highway is built on schedule, beginning this fall, or whether parts of the study need to be redone, causing a delay. Construction also could be delayed two to three years if either side appeals, legal observers said.

Williams's few questions directed to lawyers on both sides gave little indication of which way he might be leaning. However, he noted at the start of the four-hour hearing that he was permitted a "fairly limited, narrow review" of the government's actions. He would not determine whether building the highway is good or bad for the environment, he said, but only whether the federal government approved the project in "clear error" or in an "arbitrary or capricious" manner.

Williams said he also is required to defer to the scientific "wisdom" and "discretion" of the agencies that approved the environmental studies. However, he asked lawyers for the environmental groups and the Derwood couple that filed the lawsuits to present "arguments of where the process fell short."

Maryland highway officials say the highway is needed to speed east-west travel in the Interstate 270 and Interstate 95 corridors. Local roads, they say, have become clogged and unsafe because of traffic they were not designed to carry.

Opponents say the highway will harm streams and destroy too many acres of wetlands, forests and parkland while causing more traffic and air pollution. They said the highway will bring unhealthy air within blocks of Drew Elementary School, Magruder High School and the Leisure World retirement community.

The environmental groups say the U.S. Department of Transportation and Army Corps of Engineers violated federal law when they approved the Maryland State Highway Administration's required environmental impact study. They say the study focused too narrowly on a highway without considering cheaper or more environmentally friendly options, such as improving local roads.

Gary Kuc, an assistant Maryland attorney general, said other options that the state considered, such as mass transit, wouldn't do enough to reduce traffic congestion and make local roads safer. Only the intercounty connector, which will be designated as Maryland Route 200, will do that, he said.

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