For Immediate Release

Wednesday, August 19, 2009

Arlington County Files Lawsuit against FHWA and Commonwealth of Virginia on HOT Lanes

County alleges project violates federal law

Update April 21, 2010: U.S. District Court rules in Arlington's Favor in initial HOT lanes arguments. Arlington County prevailed in the first court arguments in the County's lawsuit against the federal government and the Commonwealth over the HOT lanes project . The decision allows the County's suit to move forward. (April 21, 2010)

ARLINGTON, Va. – The Arlington County Board today filed suit in United States District Court for the District of Columbia against the United States Department of Transportation, the Federal Highway Administration (FHWA) and the Commonwealth of Virginia over the proposed High Occupancy Toll (HOT) Lanes project for I-95/395. The suit alleges that the FHWA and the Commonwealth failed to meet necessary requirements under the National Environmental Policy Act (NEPA) and the Clean Air Act before FHWA approved a Categorical Exclusion for the project. The Categorical Exclusion allows the HOT lanes project to move forward without the full environmental and public health analysis and public review required by federal law; in essence, it determined that the project’s impacts are not enough to warrant a full environmental and public health assessment.  The determination is totally wrong for this project and has consequential adverse effects on the health and welfare of Arlington’s residents.

“I wish it did not have to come to this, but the County was left with no alternative,” said Barbara A. Favola, chairman of the Arlington County Board. “We are encouraged that VDOT has elected to delay the project. Now, the Categorical Exclusion must be withdrawn and a proper and full environmental and public analysis conducted. At this point, the true impacts of the project have not been identified and a proper design cannot be completed. In fact, due to the manipulation of the process, the true impacts cannot be identified. Conversations should continue with stakeholder groups in the hope that a legally binding settlement can be reached."

County officials faulted the proposed HOT Lanes project for focusing on moving individual cars instead of moving people, thus de-emphasizing and harming transit options and HOV (High-Occupancy Vehicle) and conflicting with air quality goals in the region. The project, they said, is likely to increase congestion throughout the I-95/395 corridor, lengthen travel times, especially for transit, for which the facility was originally built with taxpayer dollars, and increase public health risks. While affluent commuters who drive alone will get improved access to existing, highly efficient transit and the HOV corridor, those who cannot afford the tolls will experience longer commutes. 

The project will also worsen air quality in the region, particularly along the project corridor, disparately impacting low income and minority communities. The planned Shirlington off-ramp and the inadequate design at the Eads Street terminus will burden local streets, particularly in Arlington, with a significant increase in traffic and negative impacts on historic communities. Furthermore, the project actually encourages additional sprawl, further exacerbating traffic congestion and harmful air emissions. The failure to adequately measure the impacts of the project, County officials warned, discourages any consideration of alternatives and creates the potential for long-term and widespread problems for the region.

Basis of the lawsuit

The Categorical Exclusion for the project was issued in January 2009, clearing the way for the project to move ahead. After a Categorical Exclusion is issued, the only avenue for appeal is a lawsuit. Since 2005, the County has questioned and commented on the analysis and plans for the proposed HOT lanes project to the Virginia Department of Transportation (VDOT) and to its private partner Fluor-Transurban. Despite these efforts, the County has been unable to obtain satisfactory explanations from VDOT about the scope of its analysis or to concur with VDOT that it has adequately analyzed the environmental and public health impacts of the project in compliance with federal requirements.

• Read timeline and letters, documents and actions taken>>>

The County believes that VDOT has exaggerated the benefits of the project and underestimated the adverse impacts of the project, both regionally and in Arlington particularly. Beyond traffic, environmental and public health impacts, concerns have been raised about degraded emergency response capacity, local and regional air quality impacts, enforcement, pedestrian/bicycle conflicts, and local funding needs to mitigate the impacts on local streets and maintain the current level of transit service.

Even though the County’s concerns, and the concerns of other jurisdictions in the region, have not been addressed, VDOT has proceeded with the project. Recently, VDOT has begun to recognize the significant issues associated with the project and has just decided to delay its implementation. It is not certain, however, how long this delay may be and whether there is any plan to correct the serious deficiencies in the project. As a result, the County has no choice but to file suit in order to ensure that the federally required analysis is properly completed and the adverse impacts of the project are fully identified and satisfactorily mitigated.

Specifically, the County alleges that the mandatory NEPA procedures were not satisfied in analyzing and designing the project. 

• Modeling used to determine the project impacts was insufficient and not consistent with standard practice.
• As a result, the Categorical Exclusion recommended by the Commonwealth and approved by FHWA did not properly consider the true impacts of the project.
• The resulting project design does not address the impacts of the project, the full dimensions of which cannot be known until a proper analysis is done.
• The Air Quality Analysis Technical Report and other documents supporting the Categorical Exclusion do not provide the requisite analysis to determine -- as required by NEPA -- whether the overall project causes significant environmental and public health impacts. This includes impacts on vulnerable populations and the disparate treatment of low-income and minority communities along the corridor. 

“The Federal Highway Administration and VDOT should rescind the Categorical Exclusion classification and, at a minimum, undertake an environmental assessment,” said Arlington County Attorney Stephen MacIsaac.

“The County cannot support the project unless the Commonwealth agrees to postpone the agreement with Fluor-Transurban and properly and adequately models and evaluates the project in accordance with all applicable standards and guidelines in order to determine the project’s impacts on transit and HOV, traffic in the non-restricted lanes, and local streets,” MacIsaac said. “We urge the State to ensure that the project is redesigned to reflect the new analysis and full range of impacts; and fund the mitigation of those impacts by incorporating the mitigation measures in the agreement with Fluor-Transurban."

Arlington, Va., is a world-class residential, business and tourist location that was originally part of the "10 miles square" parcel of land surveyed in 1791 to be the Nation's Capital. It is the geographically smallest self-governing county in the United States, occupying slightly less than 26 square miles. Arlington maintains a rich variety of stable neighborhoods, quality schools and enlightened land use, and received the Environmental Protection Agency's highest award for "Smart Growth" in 2002. Home to some of the most influential organizations in the world - including the Pentagon - Arlington stands out as one of America's preeminent places to live, visit and do business.