Federal Judge James Moody has denied a request for a preliminary injunction to halt work on the billion-dollar Interstate 30 widening project through downtown Little Rock pending a trial of a public interest lawsuit claiming the Arkansas Department of Transportation hasn’t adequately assessed the environmental damage.
Millions have already been spent on the project. The state wants to get the work far enough along that it will be effectively impossible to stop the seven miles of widening I-30 to 10 lanes and building a new bridge over the Arkansas River. To finish the full project, the Highway Department needs voters to approve a $300 million-a-year sales tax increase in November. Otherwise, a scaled-down version will be necessary. Under the unique (stupid, critics say) “design-build” contract entered by the state, the contractors get paid whether work proceeds or not.
The judge held he was limited in evidence he could consider and thus restricted testimony from plaintiffs’ expert witnesses. He ruled the plaintiffs hadn’t demonstrated a likelihood of success, a key to issuing an injunction.
Plaintiffs claim that they have been denied their procedural rights to be involved in the
process in that the Agencies: (1) denied Plaintiffs the right to comment on the Project being completed in phases rather than in its entirety; (2) failed to provide a notice and comment period after the issuance of the FONSI [finding of no significant impact]; (3) did not give the public opportunity to comment on new material they argue was presented in response to public comments to the Draft EA; (4) failed to respond to significant public comments; and (5) misled the public about the availability of the Draft EA for comment.
He rejected those claims. He also commented:
The overarching issue in all of Plaintiffs’ challenges is whether FHWA was arbitrary and capricious when it issued the FONSI. This Court must affirm the decision of the FHWA if it finds that the agency “took a ‘hard look’ at the project, identified the relevant areas of environmental concern, and made a convincing case for
He also ruled against plaintiffs who live near the project who said they’d be irreparably harmed if work starts.
Keli Wylie, Registered Professional Engineer and Alternate Project Delivery
Administrator for ArDOT, testified that construction would likely begin at the end of September 2020, provided the Project was issued a 404 permit from the Corps of Engineers in the next two or three weeks, with grading and clearing to begin mid-October. The final hearing in this matter is scheduled to begin October 20, 2010. [sic] The Court concludes that the Plaintiffs have failed to establish that they will likely suffer irreparable harm if work on the Project commences as planned. The Court is aware that a violation of NEPA itself is evidence of a real environmental harm. In this case, however, there has not been a showing that Plaintiffs are likely to prove Defendants violated NEPA. (“[A] movant seeking injunctive relief must demonstrate that irreparable injury is likely in the absence of an injunction.” Therefore, this
factor weighs in favor of the Defendants.
The judge concluded that public interest weighed in favor of moving more traffic faster through downtown Little Rock.
Defendants have demonstrated that the Project will likely benefit the public by reducing congestion, enhancing safety, and improving the quality of life for thousands of people who will use the expanded roadway every day. They argue that enjoining the project would not be in the public interest because it would cause a delay in its completion and a significant loss to the taxpayers of Arkansas. Based on these considerations, the Court finds that this factor, also, favors the Defendants.
The learned judge overlooked air pollution, water pollution, neighborhood deterioration, inducted traffic demand on other highways, the ruination of the city traffic grid, the lack of need for congestion relief, the minimal impact on traffic, the encouragement of urban sprawl and white flight and its impact on the quality of Little Rock life and the benefit that money could provide to other roads in Arkansas.
Richard Mays, attorney for plaintiffs in the case, says he’ll study the opinion before deciding further actions, but he commented that he didn’t believe the highway agencies took the “hard look” required by the National Environmental Policy Act of issues raised by plaintiffs in the case.
One option is to seek an injunction pending appeal, first to the district court and then to the 8th Circuit Court of Appeals.