Current Litigation Efforts
Past ARTBA Litigation Victories

Past ARTBA Litigation Victories

Victory for the Transportation Construction Industry: U.S. Supreme Court Limits Scope of Army Corps of Engineers’ Authority on Wetlands Cases

In one of the most significant environmental-related cases in recent years, the United States Supreme Court June 19 refused to expand the authority of the Army Corps of Engineers to regulate man-made ditches and remote wetlands.  If the Court had granted additional power to the federal agency, it could have led to even greater delays on transportation projects, the American Road & Transportation Builders Association (ARTBA) says.

In a split decision of the consolidated cases of Rapanos v. United States and Carabell v. U.S. Army Corps of Engineers, the Court said the agency may have over extended its authority under the Clean Water Act by exerting jurisdiction over wetland areas with remote connections to “navigable waters."

ARTBA, in partnership with the National Stone, Sand and Gravel Association and the Nationwide Public Projects Coalition, filed a “friend of the court brief” late last year explaining these cases had the potential to either greatly expand or sensibly limit the authority of the Corps to issue permits for transportation construction projects in all areas of the country.  State departments of transportation and local communities could also have been effectively removed from project-related decisions if the Corps was given more regulatory power, the brief said. 

The brief also noted the transportation construction industry and state departments of transportation have been grappling with wetlands issues for years and often face confusing and conflicting interpretations on the scope of federal jurisdiction.  This makes it very difficult to engage in long-term planning and increased costs due to permitting requirements, the brief said. 

According to ARTBA, the June 19 decision by the Court sent a message that it does not view the Corps authority to regulate wetlands as without limit, and a signal that it would not be receptive to future Corps attempts to broaden the federal jurisdiction over wetlands.  Given the split decision, however, it is likely many of the wetlands and regulatory issues will still be reviewed in the future by lower courts on a case-by-case basis. 

With Rapanos and Carabell decided, ARTBA said it would continue working with Congress and the federal agencies towards the legislative and regulatory goal of establishing clear wetlands regulations that effectively protect the nation’s environment and reduce delays to transportation improvement projects.

Battling Efforts to Halt Aggregate Mining Operations (CEMEX et. al, Inc. v. City of Las Angeles et. al.)

The U.S. transportation construction industry earned an important victory Feb. 10 when a federal appeals court upheld a consent decree that will allow aggregate mining operations to commence at a southern California mining site. Aggregate is the principal ingredient in concrete—a key material used on transportation improvement projects across America. The decision could help increase supply in the highway construction materials market.

ARTBA, joined by the Portland Cement Association, American Concrete Pavement Association and National Ready Mixed Concrete Association, submitted a “friend of the court” brief in late 2004.

The litigation involved a project which began in 1990 when—with the approval of the Bureau of Land Management—CEMEX, Inc., purchased the federal government’s rights to sand and gravel operations in the Soledad Canyon area of Los Angeles. Despite extensive and multi-year environmental reviews, local officials continued to file numerous legal challenges to delay the project from moving forward.

In 2002, CEMEX filed suit against Los Angeles County. The U.S. Justice Department intervened on CEMEX’s side nine months later, arguing the county’s delay in approving the project interfered with the federal government’s program for the sale of federally-owned mineral materials.

After more than a year of mediation, the parties reached an agreement. Following multiple objections by the city of Santa Clarita, which had been granted intervenor status in the case—the District Court May 20, 2004, approved the decree and entered the judgment. Santa Clarita officials appealed the ruling to the ninth circuit U.S. Circuit Court of Appeals, which rejected their arguments last week.

In the legal brief, ARTBA and its industry allies underscored the importance of consent decrees in resolving litigation in environmental matters and highlighted the economic importance of ensuring reasonable access to domestically-available building materials such as sand, gravel and other products. The groups also argued that the federal law which the consent decree is based upon preempted any further delays of CEMEX’s project at the state and county level.

U.S. 95 Widening Project (Sierra Club v. U.S. DOT)

The U.S. Department of Justice reached a settlement June 27, 2005 with opponents of a Las Vegas, Nev., highway improvement project. Once the agreement is approved by a federal court, $85 million worth of transportation construction work on U.S. 95 will be allowed to move forward—most likely this November.

Construction was originally halted in August 2004 when a federal court issued an injunction pending the outcome of litigation initiated by the Sierra Club.

ARTBA became involved in the case in October 2004, filing a legal brief documenting the positive environmental, public health and safety effects of improving U.S. 95, including a significant reduction in “greenhouse gases,” lower motor fuel consumption and more rapid response times for fire fighters, ambulances and other public safety officers.

While the U.S. 95 case was being litigated, ARTBA continued to apply public pressure highlighting the disruptive impacts of stopping a highway improvement project under construction. ARTBA testified about the case at a June 18 House Committee on Resources Task Force field hearing in Lakeside, Arizona, which was called to discuss reforms to the National Environmental Policy Act (NEPA). ARTBA explained how the lapse in time between issuance of a final environmental impact statement for the U.S. 95 project in 1999 and a court injunction stopping construction in 2004 demonstrated a serious flaw in the NEPA process. One of ARTBA’s proposed reforms was a 90-day time limit on NEPA related lawsuits concerning the review of transportation projects.

Resolution of the U.S. 95 case continues ARTBA’s long series of successful legal advocacy efforts on behalf of the transportation construction industry

A Legal Right To Intervene in Utah (Utahans for Better Transportation v. US DOT)

In July 2002, a three-judge panel on the U.S. Court of Appeals for the 10th Circuit unanimously overturned a lower court ruling that barred a coalition of national construction associations from intervening in a Sierra Club lawsuit challenging the Salt Lake City, Utah, transportation plan. The ruling marked the first time a federal appellate court had a written opinion that construction industry associations have a legal right to a seat at the table in environmentally-based litigation seeking to stop regional, state or local transportation plans. ARTBA and its industry allies had filed a brief in the case.

"Environmental Justice" (South Camden Citizens in Action v. New Jersey Department of Environmental Protection)

In December 2001, ARTBA became involved in South Camden Citizens in Action v. New Jersey Department of Environmental Protection when it became clear that anti-growth groups were increasingly making the blanket assertion that some construction projects in neighborhoods with predominantly low-income and minority populations cause unfair environmental consequences for those neighborhoods. These groups were claiming "environmental justice" as an argument for seeking court injunctions to stop projects, despite an April 2001 U.S. Supreme Court ruling that that individuals do not have a private right to sue under Title VI of the 1964 Civil Rights Act. ARTBA’s brief helped separate fact from emotion in the "environmental justice" debate. The U.S. Court of Appeals for the 3rd Circuit agreed and ruled that private citizens cannot use the loosely-defined concept of "environmental justice" to challenge or stop proposed construction projects.

Moving Transportation Plans Forward in Maryland & Georgia (Georgians for Better Transportation et. al. V. U.S. EPA et. al. & 1,000 Friends of Maryland v. U.S. EPA)

ARTBA legal victories in Atlanta and Baltimore have helped transportation plans move forward. In both instances, extremists lodged legal challenges designed only to delay important transportation construction projects. In Baltimore, the U.S. Court of Appeals for the 4th Circuit in September 2001 rejected a claim that the EPA approved an air-quality improvement plan for Baltimore without sufficient data about motor vehicle emissions. The ruling gave the EPA greater flexibility in approving state emissions plans required by the CAA. In Atlanta, the U.S. Court of Appeals for the 11th Circuit ruled unanimously in 2001 that state and federal agencies acted properly under the CAA when they approved the city’s 25-year, $36 billion regional transportation plan.

Texas Highway Construction Ban (Engine Manufacturers Association et. al. v. Texas Natural Resources Conservation Commission)

In a decisive victory for the transportation construction industry in June 2001, a U.S. District Court in Texas struck down proposed regulations that would have banned the morning use of off-road diesel construction equipment during summer months. ARTBA and the Engine Manufacturers Association had challenged the regulations in court. The court also struck down a state mandate that highway contractors accelerate their purchase and use of cleaner burning diesel equipment. Both rulings set national legal precedents.

Sensible Wetlands Regulation (Solid Waste Agency of North Cook County v. US Army Corps of Engineers)

In a case that has been called one of the most significant wetlands ruling by the U.S. Supreme Court, ARTBA filed a brief challenging the authority of the U.S. Army Corps of Engineers to regulate virtually any puddle that might be used by migratory waterfowl. The high court agreed with ARTBA’s position in January 2001 with a ruling that has helped improve federal and state wetlands regulations.

Fighting Frivolous Anti-Growth Litigation (Environmental Council of Sacramento v. Slater)

In January 2000, the Sierra Club and several local groups filed suit to stop 59 highway projects that were part of a $98.4 million, multi-year regional transportation improvement plan approved by the Sacramento (Calif.) Area Council of Governments. The Sierra Club charged these agencies failed to follow provisions of the CAA. Since the case could have delayed court transportation projects around the country, ARTBA and its industry allies filed a petition to intervene as a defendant in March 2000, which the court granted. It allowed the transportation construction industry to have a "seat at the table" during any negotiation or settlement discussions between the Sierra Club and government agencies. In an October 2000 victory for the industry, the judge ruled that the case could not be brought under the "citizen’s suit" provision of the CAA. (This provision allows the awarding of attorney’s fees to the plaintiff in successful litigation, which they in turn use to finance anti-road lawsuits in other communities.) This ruling immediately allowed the projects to move forward and the anti-road groups soon abandoned their legal appeals.

U.S. Supreme Court Clean Air Case (American Trucking Association v. U.S. EPA)

In July 1997, the U.S. EPA announced plans to implement tighter air quality standards for ozone. If implemented, several hundred additional counties across the U.S. would be considered out of compliance with the CAA. Since federal highway funding is tied to meeting CAA air quality standards, these funds could be at risk in states across the nation. ARTBA joined 20 national associations, headed by the American Trucking Association (ATA), in a lawsuit challenging the proposal.

A 1999 ruling by the U.S. Court of Appeals for the D.C. Circuit in ARTBA’s favor striking down the EPA standards was subsequently appealed by the EPA to the U.S. Supreme Court. Although the Supreme Court did not find in ARTBA’s favor, the association remains vigorously involved in the debate over CAA standards and recently submitted comments to EPA on the very same standards that were part of the ATA case to ensure the transportation construction industry views are fairly represented in the regulatory process.