Beveridge & Diamond

Maryland Highway Construction

Successful Preparation and Defense of NEPA Environmental Review for Intercounty Connector Project

October 18, 2011

On behalf of the Maryland Department of Transportation, Beveridge & Diamond, P.C., successfully developed, implemented and defended a strategy for achieving NEPA approval for an extremely controversial and complex transportation project, the proposed Intercounty Connector (“ICC”).  The ICC is a new 18-mile limited access highway planned for the suburbs outside of Washington, D.C.  This marked the Maryland Department of Transportation’s third attempt to complete the NEPA process, after two previous efforts in the 1980s and 1990s failed to result in an agreement between state and federal officials and a Record of Decision.  Construction of the highway began in 2007 and is ongoing.

Beveridge & Diamond was involved from early in the process, developing a strategy to withstand likely litigation from national and local environmental groups.  Firm attorneys took the lead in working with consultants to prepare the Draft EIS, Final EIS, and Record of Decision.  We then crafted the successful defense of these documents in federal court against claims by environmental groups.

Plaintiff environmental groups challenged the agencies’ compliance with NEPA, Section 4(f) of the Transportation Act, Section 404 of the Clean Water Act, obligations to assess air quality impacts under the Clean Air Act and allegations that the Federal Highway Administration did not fulfill alleged procedural and substantive obligations under Section 109(h) of the Federal-Aid Highways Act.  The parties filed over 500 pages of briefing and the court conducted two separate oral arguments in advance of its ruling. 

With regard to traditional NEPA claims, the Court rejected Plaintiffs’ argument that the agencies had too narrowly defined the project’s Purpose and Need.  Relying in large part on the fact that the Purpose and Need included reference to connecting I-95/US 1 and I-270 in Maryland with a limited access highway, Plaintiffs asserted that the agencies’ had created too narrow a framework for the assessment of non-highway alternatives.  The Court disagreed, stating that the agencies had in fact openly and fully analyzed a variety of alternatives, disproving any limitation from the statement of the project’s Purpose and Need.  The Court also pointed out that all of the state and federal agencies participating in preparation of the EIS had been given and opportunity to comment on and contribute to the Purpose and Need statement and that, after full discussions, the other lead permitting agencies concurred in the final proposal which was incorporated into the EIS.

In addition, Plaintiffs had offered up an assortment of non-highway options after publication of the Draft EIS and argued that they were not given full consideration in the NEPA process.  Again, based on the administrative record, the Court disagreed.  It held that the agencies properly determined that these proposed alternatives did not meet the project Purpose and Need and that it was not necessary to study these options in full detail because they were deemed not reasonable.  The Court also deferred to the expertise of the agencies in assessing various common Measures of Effectiveness concerning the transportation benefits associated with the alternatives retained for detailed study and Plaintiffs’ proposed alternatives, echoing earlier cases cautioning against a court becoming a “super professional transportation analyst” to determine the appropriate model or MOEs to use in a given case.

The agencies’ analysis of a variety of key resource impacts also was upheld.  Plaintiffs focused a great deal of attention on the analysis of secondary and cumulative effects and the project’s potential for mobile source air toxics.  In these instances, the Court deferred to the agencies’ application of complex planning and transportation models and acknowledged that elements of uncertainly existed to fully analyze the potential health impacts of MSAT on people living near a roadway.  Despite this uncertainty, the Court held that the agencies did attempt to conduct an MSAT analysis, using an aggregate emission standard across the NEPA Study Area.

The Army Corps of Engineers prepared a separate Record of Decision to memorialize its consideration of factors in compliance with Section 404 and its 404(b)(1) Guidelines for the granting of individual permits under that program.  Plaintiffs alleged that the Corps had made its decision by improperly relying on the flawed analysis of the FHWA.  The Court rejected those claims, ruling that the Corps exercised independent judgment throughout the permitting and NEPA process in issuing the permit under the Clean Water Act.  The Court upheld the finding that the Selected Alternative was reasonably concluded to be the “least damaging practicable alternative.  In part, the Court found persuasive the Corps’s assessment that potential impacts to an important drinking water source in the Study Area associated with one of the proposed build alternatives not selected was a reasonable basis to reject that alternative.  Like the consideration of parkland impacts, the Court found that the mitigation package to which the state DOT committed in acceptance of its permit was “commendable” and in certain cases, mitigation proposals were “unprecedented in Maryland.”