ARTBA Legal Advocacy: Environmental Legal Advocacy Program

ARTBA is currently involved in the following major initiatives, which includes eight ongoing lawsuits of national significance:

Current Litigation Efforts

Endangered Species Act - National Association of Homebuilders v. Defenders of Wildlife et. al. & United States Environmental Protection Agency v. Defenders of Wildlife, et. al

One of this year’s most significant transportation-related environmental cases will soon come before the U.S. Supreme Court and the American Road & Transportation Builders Association (ARTBA) is making sure the Court hears the views of the U.S. transportation construction industry.

At issue is a decision by the U.S. Court of Appeals for the Ninth Circuit which could severely impact the decision-making process for many vital transportation projects by elevating ESA considerations above all other factors. “If the Ninth Circuit’s reasoning is allowed to stand, the ESA will be greatly broadened. The statute will, in effect, become a ‘trump card’ in relation to the other environmental requirements of the transportation planning process,” the ARTBA brief said.

“ESA considerations will have to be not only examined in terms of transportation construction projects, but also any future development that may be linked to those projects. This type of prediction would be impossible to measure. As a result, transportation projects could face a substantial increase in ESA-related delays because planners would not be able to forecast indirect impacts to species caused by their projects,” the brief argued.

ARTBA also highlighted the negative public health and safety impacts concerns associated with delaying transportation projects.

If the U.S. Supreme Court allows the Ninth Circuit Court’s decision to stand, ARTBA said, “the ESA will become the driving force behind a review process driven more by speculation over future land use impacts on species habitat than scientific certainty governed by reason.”

The case will be argued April 17 with a decision anticipated sometime later in the year.

ARTBA is the transportation construction industry’s “consensus voice” on environmental and regulatory matters before Congress, the White House, federal agencies and courts.

“Greenhouse Gas” Emissions in New Motor Vehicles (Commonwealth of Massachusetts et. al. v. U.S. EPA)

A U.S. Court of Appeals July 15 ruled the EPA was within its authority to reject a petition from anti-growth groups calling for the regulation of so-called “greenhouse gasses” from new motor vehicles. ARTBA was a party to the case with a group of industry interveners who filed a brief supporting the EPA’s decision not to regulate greenhouse gas emissions.

If enacted, any new regulations would likely have resulted in increased prices for motor vehicles and construction equipment as well as restrictive standards which, if not met, could place states and localities in jeopardy of losing federal transportation funding.

At issue was a 1999 petition filed by a number of environmental organizations seeking to compel the EPA to regulate greenhouse gas emissions from new motor vehicle engines. In September 2003, the EPA denied the petition based on a thorough review of the Clean Air Act, stating that it “can not and should not” regulate “greenhouse gas” emissions. The coalition of environmental groups which originally brought the petition appealed the EPA’s decision to the Court of Appeals.

The July 15 ruling was particularly significant because it is the highest federal court to speak to the issue of greenhouse gas regulation. The court ruled EPA is not required to regulate greenhouse gasses under the Clean Air Act. The decision also noted there is “scientific uncertainty” on the issue of climate change.

The case will be argued before the Supreme Court on November 1, 2006. A decision is expected sometime next year. Click here

to read ARTBA's brief.

ARTBA initiated litigation March 29 to move the U.S. Environmental Protection Agency (EPA) to respond to an ARTBA petition filed with the agency in July 2002. The petition seeks an EPA ruling on whether or not states are preempted under the federal Clean Air Act from taking actions to ban or limit the use of heavy construction equipment. ARTBA contends they are. The petition was filed by the association in response to a Texas agency proposal in 2001 to limit the use of heavy equipment on road projects as part of the state’s air quality plan. ARTBA filed litigation challenging the proposal, which was subsequently withdrawn by the state agency.

ARTBA and industry allies filed a brief with the United States Court of Appeals for the Second Circuit March 2 in these cases stating that decisions about global warming, clean air and national energy policies are best left to Congress and the President, not the federal courts. Opening the door for courts to make these decisions could prevent important transportation improvement projects from moving forward in a timely manner, ARTBA said.

The appeal is a result of eight states—Connecticut, New York, California, Iowa, New Jersey, Rhode Island, Vermont, Wisconsin—and the City of New York, filing a lawsuit against some of the nation’s leading utility companies under “public nuisance” laws, which were originally designed to protect property owners from the actions taken by adjoining landowners. The states argued that carbon dioxide (CO 2) emissions travel across state boundaries and asked the utilities to reduce their CO 2 emissions by at least three percent per year for 10 years.

A federal district court dismissed the lawsuit as being ill-suited for the courts to decide. The states appealed the ruling to the court of appeals.

If the plaintiffs were to succeed, “nuisance” suits could allow the use of the courts to impose regulations restricting emissions without any approval from state or federal legislatures, regulatory agencies, or those being regulated.

Such a “patchwork” of CO 2 emissions regulation, ARTBA’s brief argues, would be a completely ineffective way to address the issue of climate change. It could also place a broad spectrum of industries, including transportation construction, at the mercy of regulation through litigation, resulting in delays to highway/transit improvements.

Sensible Wetlands Regulation – Fighting Unauthorized Changes to the Nationwide Permits Program (National Homebuilders Association et. al. v. U.S. Army Corps of Engineers)

The U.S. Court of Appeals for the D.C. Circuit July 29 overturned a lower court ruling and cleared the way for ARTBA to continue its litigation against a U.S. Army Corps of Engineers’ proposal to modify the Nationwide Permit Program (NWP).

A lower court had previously denied ARTBA’s attempt to stop the agency’s NWP modifications that reduce from 10 acres to one-half acre the amount of land on which a party may discharge dredged or filled material into wetlands without obtaining an individual permit. As a result, the Corps was able to make changes to its general NWP requirements without going through any type of public review process.

The Court of Appeals decision means ARTBA and its industry allies can move forward in challenging overreaching by the Corps on broad decisions affecting the permitting process for transportation construction projects. Further arguments in the case were heard in January of 2006 and the case is now awaiting a decision from the federal district court.

ARTBA February 3, 2006 won a major legal victory when a federal court rejected efforts by the U.S. Army Corps of Engineers (Corps) to keep ARTBA from challenging a proposal to expand federal regulation of wetlands.

The case has now returned to federal district court where ARTBA and its allies will challenge the proposal on its merits. ARTBA was joined in the case by the National Stone, Sand & Gravel Association and several other organizations.

The United States Court of Appeals for the District of Columbia Circuit agreed with ARTBA saying “it is obvious that industry will face hardship if review of its challenge is denied.” The court also said the current rule places developers in the position of applying for a permit which may or may not be legal or facing civil or criminal penalties for failing to do so.

At issue is the so-called “Tulloch rule,” which involves a 1993 decision by the Corps of Engineers and U.S. Environmental Protection Agency (EPA) to extend the legal definition of “discharge of dredged material” in wetlands development decisions to include the re-deposition of material caused by earthmoving equipment incident to land clearing and other excavation activities. The agencies’ intent was to use “incidental fallback” as a basis for requiring federal permits under the CWA. The challenged regulations affect activities including ditch digging, channelization and excavation.

ARTBA’s brief, filed March 25, 2005, argued the Clean Water Act (CWA) was never meant to regulate activities which only result in an “incidental fallback” of materials into the waters of the U.S. and highlighted the negative impacts of the Corps proposal on the transportation construction industry.

ARTBA and its litigation partners first challenged the Tulloch rule nearly a decade ago, winning an initial court decision in 1997 that reduced the jurisdiction of the Corps to regulate construction activities in wetland areas. The Clinton Administration unsuccessfully appealed the ruling five separate times. In 2001, the Corps redrafted the rule, but the practical effects have still been the same, the association says.