Bacon's Rebellion

Democracy Thrives in Sunlight

Tarheel Lawsuit Could Change VDOT Planning Practices

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by

James A. Bacon
in

The proposed Monroe Bypass south of Charlotte. (Click for more legible image.)

A lawsuit filed against a proposed bypass near Charlotte, N.C., could have a big impact on how road and highway projects are decided in Virginia. If a coalition of conservation groups win their case in U.S. 4th Circuit Court of Appeals, it would apply to all states in the court’s jurisdiction, including Virginia.

The Southern Environmental Law Center and three other conservation groups filed suit claiming that the North Carolina Department of Transportation and Federal Highway Administration turned federal law on its head by assuming in the environmental impact statement for the $700 million Monroe Bypass that the highway already existed when analyzing a “no build” option.

“This flawed approach led to the improbable result that building the 20-mile, four-lane bypass with nine interchanges on the fringe of metro Charlotte would have practically no impact on development patterns, the Yadkin River watershed or air quality from increased commuting,” stated the SELC in a press release yesterday. The analysis also precluded from consideration an option for upgrading the existing highway corridor that would have cost a mere $15 million.

“If this flimsy, so-called ‘analysis’ can stand,” said SELC senior attorney David Farren, “the concern is we could end up building tens of billions of dollars in massive highway projects across the region without any fiscal or environmental checks and balances.”

A lower court acknowledged that the misrepresentation had occurred but ruled it “immaterial.” A ruling from the Court of Appeals is not expected for a few months.

Trip Pollard, a senior attorney in SELC’s Richmond office, said a favorable ruling would impact transportation decision-making in Virginia. “The failure to analyze alternatives is a consistent problem in Virginia.”

The $244 million Charlottesville Bypass is a case in point, Pollard said. The Virginia Department of Transportation did not study the alternative Places 29 plan for ameliorating congestion on U.S. 29 north of Charlottesville when resurrecting the project from mothballs after nearly 20 years. Another example is the proposed rebuilding of U.S. 460 between Petersburg and Suffolk as a limited access highway, a project to which the state has committed $500 million. VDOT never gave consideration to upgrading the existing four-lane highway.

“We’re optimistic” about a favorable ruling, Pollard said. “The court asked a lot of good questions.”

— JAB

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  1. TMT Avatar
    TMT

    This is a good example of why it is generally not possible to build major general purpose expansions of highways in Northern Virginia. There will continue to be a difference between the expansion of general purpose lanes and the construction of HOT/HOV Lanes. I am not arguing that all roads can never be expanded. However, the idea that VDOT could have widened the Beltway beyond the HOT Lanes is not necessarily true. Environmental restrictions, especially if this case succeeds, are significant.

  2. larryg Avatar
    larryg

    this damages the credibility of NCDOT and if VDOT is found to be engaging in the same practices, it will further damage their credibility.

    The public has gotten exceptionally cynical about VDOT and NCDOT “studies” but this situation, if true, takes the cake.

    If I understand this correctly, NCDOT fiddled with the no-build scenario to show that the same amount of growth would occur – with or without a new road.

    This is called induced demand and the DOTs typically refute it ..saying that growth is going to occur no matter what and that new roads only accelerate what would have happened incrementally over a longer timeframe anyhow.

    I think….

    I’d like to hear more specifics here…. in part…because… NCDOT typically is perceived as having a more honest NEPA alternatives process than VDOT so I’m not understanding precisely what this is about.

  3. DJRippert Avatar
    DJRippert

    Super. Another group of lawyers suing every state over every transportation project. When they lose their suits, they should be charged for all of the government’s costs in defending these lawsuits as well as the delayed value of the proposed road improvements.

  4. Hydra Avatar
    Hydra

    This is called induced demand and the DOTs typically refute it ..

    ============================================

    Induced demand is an idea that was pretty much discredited 20 years ago.

    Rippert is right. The ICC probably could have been built for the cost of all the meetings that were heltd to talk about it, and 15 years sooner.

  5. larryg Avatar
    larryg

    Actually the opponents were correct in that they said the road did not have as much “need” as the original study asserted. Once the road was approved and the tolls set – it was acknowledged that if you measured “need” in terms of willing to pay for need that the road could not pass muster so now the State of Maryland is deep in hock to pay for the ICC and making users of other toll roads help pay for it.

    When a study purports to compare the nobuild verses the build – they are in theory showing you what the improvement/benefits are – for the costs of the project.

    Clearly that process does not really seek the truth.

    The reason why the DOTs are broke ?

    In part because they “sell” roads on their benefits but the public does not see improvement so no surprisingly they don’t want to pay higher taxes.

    So we’re left with deciding just how “needy” the ICC is and the answer is, not “needy” enough for people to pay real money to use it.

    If the DOT …HONESTLY said this BEFORE the project was approved…would it have still been approved?

  6. TMT Avatar
    TMT

    If we don’t want lawsuits to challenge transportation projects, we need to change the environmental laws. There are numerous restrictions on crossing wetlands and the ever-present air quality regulations. Congress intended them to be barrier to certain projects that create problems. Congress can change the law if it likes.

  7. larryg Avatar
    larryg

    the interesting thing about the environmental laws that involve highways is that NEPA does not require environmental protection of any kind. It merely requires that the information about a project be complete and accurate.

    Where VDOT and others go astray is situations like the Charlottesville Bypass where they have 10, 20 year old data and those who oppose want the data to be updated (from the opponents view that the underlying premises do not support the decision).

    VDOT typically on such projects will refuse to update the data until or unless the opposition forces a FHWA review and/or forces the issue to court. In many cases, VDOT is hoping that the opposition group is not competent enough to meaningfully contest the issue with FHWA or financially capable of pursuing it in court.

    So VDOT throws the dice and in the end VDOT does not really care if they lose a case or how long it takes a case to get resolved.

    I have never known VDOT to take a compromise position with the opposition – they give – not an inch even if it would resolve the issue and move it forward. It’s not in their DNA. It’s literally “my way or the highway”.

    NCDOT has a reputation of seeking consensus especially among the other Federal Agencies… and even sometimes with citizens but they still will play the game of using old data or not using data that they should be using to portray the road is the best possible “need” light that they can.

    In 30 years, I have never known VDOT nor NCDOT to do a study and then to conclude that the cost of the road outweighs it’s benefits.

    Both organizations are fundamentally in the business of building roads as long as someone is willing to front the money to build them.

    The “studies” are just required bureaucratic hoops that have to be jumped through.

    Public Hearings are invariably PR efforts to justify their preferred build option.

  8. TMT Avatar
    TMT

    In Fairfax County, VDOT has become more customer friendly. New chief Garrett Moore gets it. Working with local stakeholders reduces the chances of big fights once a project is approved and also can result in creative and less expensive solutions to transportation problems. But, as Larry indicated, VDOT often keeps pushing a 20-year old proposal as if it were brand new.
    VDOT needs to think and manage as a network operator. How can VDOT get the best results, safe and effective movement of people and goods, with the existing network? What additional network facilities will produce the most benefits — again in terms of safe and effective movement of people and goods –for the investment? And transportation needs to be linked to land use.
    I’ve never heard VDOT engineers complain about toll roads, increased use of transit, other TDM tools, and the like. VDOT has worked with Fairfax County and the Tysons landowners to develop urban standards for streets. I’d answer Ben Franklin’s question by agreeing that the sun is rising for VDOT in NoVA.

  9. larryg Avatar
    larryg

    I see some positive changes to the way VDOT is doing business in some areas on some issues but there is no denying (for instance) , the approach they are using on the Charlottesville Bypass.

    That is classic old-line VDOT trying to push a road using old data and digging their heels in to developing new data.

    Even the contractors interested in bidding on that project are concerned with some of the premises that transfer risk to the contractors in dealing with changed conditions – different from what they were 10/20 years ago.

    The institutional culture at VDOT over the years has not seen cost overruns as directly reflecting on their competence… just the way the cookie crumbles… and other projects are put off while their funding is used to make up the shortfalls of the current project.

    Phillip Schucet attempted modest reforms for on-time and on-budget but that aspect appears to be unraveling now that he has gone. No one really loved what he was trying to accomplish and are not torn up to see it go away.

    VDOT is trying to work more collaboratively at the local level and it shows but the folks who call the shots in Richmond put the local officials in precarious positions if they cannot deliver on what they appear to promise.

    Devolution is feared by most jurisdictions but it is the cure to getting those localities to take proper responsibility for their land-use decisions.

    It works just fine in cities and towns and 2 counties in Va and actually gives them more power and authority to configure and phase projects – to better suit local priorities but it takes away the T-bird that Daddy have given them in the premise that Big Daddy VDOT would fix whatever the locality broke… it just took time and money…

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