U.S. 95 project arrives in court - Transportation officials denounce Sierra Club lawsuit


Jan. 11, 2005

Sierra Club attorney Joanne Spalding speaks to reporters following a hearing in San Francisco Monday on the club's challenge to the widening of U.S. Highway 95 in Las Vegas. At left is Kent Cooper, assistant director of planning for the Nevada Department of Transportation.

SAN FRANCISCO -- The fate of widening U.S. Highway 95 and other road projects nationwide is now up to a federal appeals court, which heard arguments Monday about whether such projects adequately protect public health.

But after the hearing before the 9th U.S. Circuit Court of Appeals, Nevada Department of Transportation officials denounced the Sierra Club's challenge of the U.S. 95 plan as an exercise in social engineering.

"It seems, in our opinion, the Sierra Club is just basically doing a delaying tactic, thinking they can control growth in the Las Vegas area using litigation," said Kent Cooper, the transportation department's assistant director of planning.

"The growth is already there. We're not accommodating future growth," Cooper said. "It's not up to the Sierra Club in San Francisco."

Not so, said club officials.

"The main objective of this case is to make sure, when decision-makers are thinking about more transportation projects in a metropolitan area, that they have in front of them different options based on what the health impacts would be," Robert Yuhnke, an attorney for the Sierra Club, said outside of court.

The three-judge panel did not indicate when it would rule on the fate of the U.S. 95 plan, which would widen the six-lane highway to 10 lanes between a heavily-populated stretch between downtown Las Vegas and the Rainbow Curve.

That $515 million project has been largely on hold since the appeals court halted most work last July.

Club attorneys sued to stop or modify the plan, contending that project planners have failed to adequately gauge health risks caused by vehicle emissions on a widened highway.

Federal officials claim that cannot be done to the club's satisfaction in a scientifically credible way.

In the meantime, traffic is stagnating on U.S. 95, which carries more than 200,000 cars each day. The highway, which carried as few as 25,000 cars per day in the 1970s, is projected to host 300,000 cars daily by 2010.

During the hearing, which lasted less than an hour, club attorney Joanne Spalding argued the Federal Highway Administration ignored club studies that indicated a widened road could increase certain fine-particle pollutants and in turn boost the risk of asthma, bronchitis and cancer to those living alongside the highway.

Judge Consuelo Callahan, who presided over the hearing, asked Spalding if federal law mandates consideration of such studies if current scientific modeling could not result in meaningful findings.

Answered Spalding: "It must do the work and invest the resources necessary to get that information."

Stephanie Tai, an attorney with the U.S. Justice Department representing state and federal highway agencies, said engineers did just that.

The highway administration "used its expertise and considered the adverse effects of pollution," she said, and determined that baseline standards for the type of pollution in question was not available.

And Tai claimed that the studies offered by the club, involving pollutants in the Los Angeles area, were inapplicable to the Las Vegas Valley due to differences in traffic patterns, topography and weather.

Tai contended the club's lawsuit would do more harm than good.

"What Sierra Club seeks is not innocuous. It will affect the environment in a way that's definite and knowable," she said. "The stop of construction will lead to congestion and stop-and-go traffic, in turn leading to safety problems and more emissions."

But Spalding said highway gridlock was inevitable along U.S. 95, with or without the widening.

"Even without the widened freeway, there's a much higher level of traffic. The widened freeway will be subject to gridlock," Spalding said.

Judge John Noonan questioned an earlier lower-court decision by U.S. District Judge Philip Pro dismissing the lawsuit. Noonan claimed the judge inadequately considered the theory of "induced demand."

That theory, widely accepted by traffic engineers, claims new and widened roads draw traffic that wouldn't have otherwise used the road.

"He didn't deal with it very efficiently," Noonan said of Pro.

The judges seemed critical of a public hearing process used on the U.S. 95 plan and many other road projects nationwide, where individuals ask one-on-one questions and submit comments instead of participating in group discussions.

The fear was that the comments and concerns could fall into a black hole.

"It's not just the opportunity to make comments, it's the opportunity to be assured that the comments all get to the officials who have the power to decide," said Judge Wallace Tashima.

After court, Cooper said the process is fair.

"We had an open, massive public outreach," he said. "We went before city councils, the County Commission, the Regional Transportation Commission. We had many more meetings than just the open meetings."

The hearing didn't deal much with a light rail line which club officials see as a safer alternative to widening the highway and which federal attorneys earlier called a "white elephant."

Outside of court, Yuhnke said a light rail line would be more popular with the public if health risks were more stringently weighed.

"In Las Vegas, for example, if you have a transit option and a widening option, and one is going to result in 20 deaths and the other half that, that information should be available to the public and RTC board and the governor, so they understood that there's impacts on public health."

Yuhnke acknowledged the case could change how road projects are planned nationwide, but said a ruling in the club's favor would not cripple such projects in the way the case has hampered U.S. 95 work.

"In this case, there's all this brouhaha that the project is being held up so long. But that wouldn't be the situation if they know this is the law. It won't be delaying projects all over the country," he said.

"It just happens this is the first one. Because they refuse to look at any of these impacts, that's why we're in court," he said.



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