Judge Paves the Way For Long-Delayed ICC

By Katherine Shaver
Washington Post Staff Writer
Friday, November 9, 2007; B01

A federal judge yesterday upheld the Maryland State Highway Administration's environmental study of an 18.8-mile intercounty connector through Montgomery and Prince George's counties, clearing the way for the road's construction after 50 years of controversy.

The ruling by U.S. District Judge Alexander Williams Jr. against several environmental groups that tried to stop the six-lane highway via two lawsuits means the project has overcome what could be its last hurdle.

Maryland Transportation Secretary John D. Porcari said full construction on the toll road will begin in the next few days.

"It's a fair decision," Porcari said. "It's one that's unequivocal, and it's time to move forward."

Williams, who sits in Greenbelt, noted that in the five decades the intercounty connector has been in state transportation plans, the road had been rejected before as too environmentally damaging. However, he wrote, the state's latest study "thoroughly considered, examined and, most importantly, corrected the deficiencies from previous failed attempts." The federal government's approval of the project was within "the bounds of reasoned decision-making," he said.

The environmental groups have 60 days to file an appeal with the U.S. Court of Appeals for the 4th Circuit in Richmond. Their attorneys said they will not decide until next week whether to appeal. They could also ask Williams to reconsider. Either action could entail the plaintiffs seeking a judicial order to stop construction while the case is reviewed.

Porcari said he is confident the project will prevail. Preliminary construction that would not cause major environmental damage was allowed to begin while the lawsuits were pending.

The six-lane highway, estimated to cost $2.4 billion, will run between Interstate 270 in Gaithersburg and the Interstate 95-U.S. 1 corridor in Laurel. The connector, which will run outside the Capital Beltway, will be one of the region's first new highways in a generation. It is scheduled to open, in sections, between 2010 and 2012.

In the two lawsuits, Environmental Defense, the Sierra Club, the Audubon Naturalist Society, the Maryland Native Plant Society and a Derwood couple argued that the U.S. Department of Transportation violated federal law by approving a faulty state environmental study. The Maryland State Highway Administration was not named in the lawsuits but joined the case to defend its project, state officials said.

Among other arguments, the lawsuits contended that state and federal agencies did not adequately consider cheaper, less environmentally damaging alternatives, such as adding mass transit or improving local roads. They also argued that the agencies made mistakes in determining how much traffic and air pollution the new road would generate.

The judge rejected every argument. Williams called the intercounty connector "among the most important, most controversial, most complex and most discussed transportation and environmental projects undertaken in the Washington, D.C., metropolitan area."

The government agencies, he wrote, abided by federal law outlining how highway projects' environmental impacts must be analyzed before they are approved. The judge noted the "extensive record and the agencies' level of technical expertise and experience."

"Although [the government agencies'] actions in some instances may not have been a paragon of perfection, the court, nonetheless, cannot find anything that rises to the level of a meaningful violation" of federal requirements, Williams wrote in a 106-page opinion. "For all of these reasons, the court concludes that there is no legal or equitable basis to prevent the Inter-County Connector from moving forward."

In finding that the state had corrected previous "deficiencies," Williams referred to recent changes, such as narrower medians and longer bridges, designed to minimize the highway's environmental impacts. He also noted $370 million in environmental projects, such as creating 83 acres of wetlands and building passages to allow animals to cross safely.

One of Williams' few criticisms focused on the state's use of an air quality monitor 1.5 miles from the connector's path to determine that the highway's vehicle emissions would not violate federal pollution standards. Environmental groups said the monitor was too far away to accurately measure the effect of pollution on the health of people living close to the highway.

While he had "some reservations" about the monitor's accuracy, Williams wrote, its placement abided by federal rules requiring a "nearby monitor" to measure such pollution.

Neal Fitzpatrick, executive director of the Audubon Naturalist Society, said the state's attempts to reduce the environmental impact won't be enough. "We're terribly disappointed," Fitzpatrick said. "We've tried to block this really bad project for many years. . . . It's really expensive, doesn't solve the problem of congestion and has substantial and unmitigable impacts to some of the most important stream valley parks in Montgomery County and Prince George's County."

Advocates say Maryland's congested suburbs desperately need more road capacity, particularly to ease traffic on two-lane roads heavy with east-west traffic. The highway, supporters say, will link the fast-growing I-270 and I-95 corridors and speed travel between Montgomery County and Baltimore-Washington International Thurgood Marshall Airport.

"It's a win for the public after a half-century of repeated debate, study and indecision," said Robert Grow, director of government relations for the Greater Washington Board of Trade.

Opponents have long argued that the highway would destroy local wildlife, forests and streams, increase air pollution and encourage people to drive more.

Staff writers Rosalind S. Helderman and Philip Rucker and researchers Rena Kirsch and Karl Evanzz contributed to this report.

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