Victories & Current Cases

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Victories & Current Cases2021-03-02T17:27:27-05:00

Victories & Current Cases

ARTBA’s legal advocacy program is one of the association’s most valuable and tangible benefits. From the successful, first-ever federal court decision in 2000 to prevent the Sierra Club from challenging a regional transportation plan under the “citizen’s suit” provision of the Clean Air Act, to a 2020 win regarding rigid emergency standards for coping with the COVID-19 pandemic, ARTBA is the transportation construction industry’s legal ally.

Contact ARTBA’s Nick Goldstein to learn more.

Here is a look at our current litigation:

On July 22, President Trump and the White House Council on Environmental Quality (CEQ) finalized a major rule to modernize regulations that implement the National Environmental Policy Act (NEPA).  The rule focuses NEPA on its original intent – assessing environmental impacts of major projects and actions supported by the federal government – instead of being used as a mechanism for causing delays and uncertainty in planning and building projects, including those in the transportation sector.

Anti-growth opponents of NEPA modernization have initiated litigation in the federal courts to strike down the rule.  ARTBA, as part of a coalition of industry trade associations, has intervened in the litigation to help defend the NEPA modernization rule against legal attack.

The Trump Administration’s actions represent a once-in-a-generation to modernization of NEPA.  The law first took effect 50 years ago, when communications, technology and public participation were in the virtual Stone Age compared to 2020.  While NEPA is an essential tool for protecting the environment and ensuring meaningful feedback about projects, it had not been fundamentally improved in over three decades.  Adversaries have weaponized NEPA’s outdated review procedures to delay – often for years – or to derail transportation improvement projects.  Needless delays and uncertainties can add significant costs to these important projects, at a time when funding is constrained nationwide.

The changes to NEPA will result in a more expeditious, while still thorough, review process, without impacting existing environmental standards.  The new NEPA will not undermine environmental stewardship in planning transportation projects, which will still need to comply with the federal Clean Air Act, Clean Water Act, Endangered Species Act and other statutes.

09/11 – Order Denying Motion for Preliminary Injunction

09/09 – Reply in Support of Motion to Dismiss in Wild Virginia v. CEQ

09/02 – Opposition to Motion for Preliminary Injunction in Wild Virginia et. al. v. Council on Environmental Quality et. al.

In 2015, ARTBA and a group of allied associations sued the U.S. Environmental Protection Agency (EPA), alleging the agency disregarded important administrative law requirements and exceeded its jurisdiction when it released a rule defining “waters of the United States” (WOTUS) The rule have would have extended federal Clean Water Act (CWA) jurisdiction over roadside ditches, requiring additional burdensome permitting requirements with no environmental value.  The rule also likely would be used as a litigation tool by project opponents, both of which would result in delays to key transportation improvements and ultimately cost taxpayers more money.

Since 2015, ARTBA and our allies achieved a number of victories in the litigation, including blocking the WOTUS rule in nearly 30 states, having two separate federal courts declare the rule invalid, and also ensuring CWA complaints are heard at the district (as opposed to the appellate) court level, closer to where the regulation impacts local projects and landowners. Also, proceedings that begin in district court have more possibilities for appeal.

On June 22, the Trump administration’s “Navigable Waters Protection Rule” (NWPS)took effect in all states except Colorado.  The rule officially replaces WOTUS and exempts most highway ditches from federal jurisdiction.  The same Anti-growth groups who were defending WOTUS immediately sought to have NWPS struck down in the courts.  The rule has survived an attempt at a nationwide stay, but litigation is still ongoing.

05/28/19 – Southern District of Texas Ruling on WOTUS
11/01/16 – Opening Brief of ARTBA and Industry Allies
11/01/16 – Appendix for ARTBA and Industry Allies Opening Brief
07/02/15 – Complaint for Declaratory and Injunctive Relief
06/19/20 – Federal District Court Order Denying Preliminary Injunction of NWPR
03/02/21 – Federal Appellate Court Decision Striking Down NWPR Injunction in Colo.

Here are major victories over the last 20 years:

On June 11, the Court of Appeals for the District of Columbia Circuit agreed with ARTBA’s position and denied an attempt to require the federal government to impose a single, rigid emergency standard for coping with COVID-19.

Specifically, the court held that the Occupational Safety & Health Administration (OSHA) is entitled to “considerable deference” in addressing the COVID-19 pandemic, assuring that the transportation construction industry is free to use proven workplace best practices to protect its workers.

The ruling quickly turned away a request by the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) to compel OSHA to force implementation of a universal safety standard.  Specifically, these organizations wanted OSHA to implement within 30 days a universal “emergency temporary standard” for infectious diseases which would cover all employees and all industries in response to the current pandemic.

ARTBA, as part of an amicus brief filed with other industry allies, urged the court not to grant the request because workers are better protected from the virus by construction industry best practices rather than a rigid “one-size-fits-all” regulation.  The brief detailed why a uniform standard is misguided, explaining that “guidance on how to maintain the spread of COVID-19 in the aviation industry would naturally be quite different from guidance directed at the banking industry, or the construction industry.”

The court agreed, stating “[i]n light of the unprecedented nature of the COVID-19 pandemic, as well as the regulatory tools that the OSHA has at its disposal to ensure that employers are maintaining hazard-free work environments… the OSHA reasonably determined that an [emergency standard] is not necessary at this time.”

May 29 Amicus Brief
June 11 D.C. Circuit Court of Appeals Ruling

In August 2017, ARTBA urged a federal appeals court to overturn a lower court ruling blocking Maryland’s Purple Line light rail project, which had been mired in litigation since 2014 by anti-growth opponents. The 16-mile Purple Line in the Washington, D.C. suburbs is one of the nation’s largest P3 transit projects.

A year earlier, the lower court halted construction saying the Federal Transit Administration failed to consider declining ridership on the Washington, D.C. Metro system. Both the federal government and the state of Maryland appealed the decision contending that there was no obligation under NEPA to consider ridership on the Metro system.

In its amicus brief to the U.S. Court of Appeals for the District of Columbia circuit, ARTBA said the lower court ruling could have negative impacts and set bad precedents on the environment and the ability of other states to move forward on P3s. On Dec. 19, 2017, the appeals court overruled the lower court, providing clear notice that NEPA is not intended to be used as a tool to endlessly delay critically needed transportation infrastructure projects.

Dec. 19 D.C. Circuit Court ruling.

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