Legal Victories

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Legal Victories

Legal Victories

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Over the years, the list of ARTBA’s most notable legal victories on the industry’s behalf, include:

  • Preventing no-growth groups from using the Clean Air Act’s transportation conformity process to delay or stop state and local highway projects.
  • Successfully challenging EPA and U.S. Army Corps of Engineers attempts to unlawfully expand federal wetlands jurisdiction. By limiting the jurisdiction of these agencies, ARTBA helped to allow numerous construction projects to proceed without unnecessary federal intervention.
  • Obtaining the first-ever federal court decision in 2000 which prevented the Sierra Club and its allies from challenging a regional transportation plan under the “citizen’s suit” provision of the Clean Air Act. The provision had been used routinely to file cases blocking highway projects across the country. It had also allowed them to collect attorney’s fees if successful. These fees were then used to fund additional anti-road litigation.
  • Beating back a proposed injunction to stop dozens of road projects in California, setting potential legal precedent for other similar cases across the nation.
  • Creating legal pressure that sped up a court settlement in Atlanta, Ga., allowing dozens of highway projects to move forward.
  • Setting legal precedent guaranteeing construction industry associations a legal right to a seat at the table in environmentally-based litigation seeking to stop regional, state or local transportation plans.

ARTBA mounted a vigorous defense in support of Virginia’s public-private partnership (P3) enabling legislation.  In a July 19, 2013, brief submitted to the Virginia Supreme Court in the case of Elizabeth River Crossings OPCO, LLC, and Virginia Department of Transportation (VDOT) v. Danny Meeks, ARTBA urged the court to overturn a prior ruling holding Virginia’s P3 law unconstitutional because it gave VDOT the authority to collect tolls on a tunnel expansion project in southeastern Virginia.

ARTBA said if the ruling was allowed to stand it could endanger current P3 projects in Virginia and put existing projects relying on tolls at risk.  ARTBA noted allowing Virginia’s law to be struck down could foster challenges to similarly structured P3 laws in other states.  On Oct. 31, 2013, the Supreme Court of Virginia issued a decision siding with ARTBA and overturning the lower court’s decision.

ARTBA, as part of a coalition of 15 industry trade associations filed a “friend of the court” brief with the U.S. Court of Appeals for the Ninth Circuit Oct. 13, 2011, in the case of Ecological Rights Foundation (ERF) v. Pacific Gas and Electric Co and Pacific Bell Telephone Co.

ERF argued the companies must obtain federal Clean Water Act (CWA) and solid waste disposal permits in order to use wood utility poles treated with a federally registered preservative.  Though the case involved wood utility poles, it had broad implications for any building or construction (including transportation) materials that could release chemicals into the environment during their intended use. The victory was an important one because it prevented the definition of what is considered a “point source” under the CWA from being expanded considerably.  This, in turn, would have led to increased and unnecessary regulatory requirements and delays for transportation construction projects from the U.S. Environmental Protection Agency (EPA).

The U.S. Supreme Court March 21, 2012, unanimously agreed with ARTBA and its allies, and suspended the U.S. Environmental Protection Agency’s (EPA’s) seemingly automatic presumption of the need for a wetlands permit on all needed infrastructure and residential improvements.

ARTBA, the only transportation construction association involved in Sackett v. U.S. EPA, joined with 11 other industry associations in filing a brief, urging the Court to correct a fundamental problem with the Clean Water Act’s wetlands approval process, forcing parties to secure a permit in order to determine whether or not the permit was actually required in the first place.  As such, projects are compelled to obtain permits they might not actually need—adding delay and cost. The ruling forced EPA to make substantial changes to its permitting process and help interject more certainty for current and future transportation projects.

In PPL Montana, LLC v. Montana, the U.S. Supreme Court February 22, 2012, unanimously declined to expand the definition of what is considered “navigable” under federal law. The ruling removed an obstruction that could have needlessly delayed transportation improvements.

ARTBA, the only transportation construction association involved in the case, joined with eight other industry associations in filing a brief, urging the Court to overturn a lower court holding that the entire span of three rivers in Montana was “navigable” because certain remote sections are used for recreational purposes.

For purposes of transportation development, once something is considered “navigable” it is under federal control, and subject to the permitting authority of the U.S. Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps).  An expanded definition of “navigability” could have resulted in a scenario where the EPA and Corps would have the option of exerting jurisdiction over roadside ditches, potentially adding years to already expansive review and approval process for transportation infrastructure projects that are needed for increased mobility and improved safety.

2/22/12: Supreme Court of the United States Decision

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By | 2017-09-05T11:09:05+00:00 August 30th, 2017|Comments Off on Legal Victories

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