By Nick Goldstein & Mark Holan
In August 1993, as the U.S. Midwest battled months-long flooding on the Mississippi and Missouri rivers, ARTBA began an even lengthier wetlands fight in Washington, D.C. The association initiated another industry first by filing a lawsuit in federal district court against the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers.
ARTBA President Pete Ruane called the suit “the first shot in a much more aggressive and strategic industry response to federal rulemaking” that impacted transportation construction projects.
“We are very concerned that no-growth advocates are attempting to use the Clean Water Act and Clean Air Act to shut down transportation construction,” Ruane said in 1993. “We are putting them on notice that ARTBA will challenge them every step of the way—in the legislative and regulatory arenas and in the courts of law and public opinion.”
At issue in the case was the legal definition of “discharge of dredged material” caused by earthmoving equipment in wetlands development decisions, and whether the agencies could regulate “incidental fallback” to require a permit under the Clean Water Act. It took five years in court, but ARTBA, joined by other industry partners, finally prevailed against the two federal agencies.
“This case was never about wetlands regulations of construction agencies, but the extent to which certain federal agencies try to overstep their legal authority,” Ruane said in early 1999.
In 1993, the association also filed suit against the EPA when the agency tried to broaden the transportation conformity process to penalize areas which were meeting federal standards. The agency literally wanted to punish areas for doing nothing wrong. ARTBA stepped in on behalf of the industry and stopped EPA in its tracks, forcing the agency to settle and drop the policy.
From there, ARTBA continued to be a force protecting the industry. In 1999, the association brought together a powerful coalition of construction industry allies under the umbrella of ASET, the Advocates for Safe & Efficient Transportation.
ASET fought and won multiple legal battles—in Atlanta, Baltimore, Sacramento, Las Vegas and Salt Lake City—and opened up major new opportunities for legal advocacy.
In fact, the ASET lawsuit in Salt Lake City resulted in a 2002 precedent-setting federal appellate court ruling that said construction associations have a legal right to a seat at the table in environmentally-based litigation seeking to stop regional, state or local transportation plans. As a result, the Sierra Club, which had filed the suit, was required by the court to reimburse ASET a modest amount for its legal expenses, as you can see. It was the first, and probably the last, time the Sierra Club would make such a contribution!
Over the past quarter century, ARTBA has been the only national industry organization in the U.S. to exclusively focus its legal advocacy activities on helping ensure that approved state, regional and local transportation plans and projects move forward expeditiously.
ARTBA has invested more than $1.5 million in such litigation on the industry’s behalf. The return: $58 billion in U.S. transportation projects have moved forward after being challenged by government agencies and no-growth activists.
In the most recent case, decided at the end of 2017, ARTBA helped to secure a federal appeals court decision to overrule a lower court ruling blocking the nearly $6 billion Maryland Purple Line light-rail project, one of the nation’s most high profile transit public-private partnerships.
ARTBA told the appeals court that prohibiting the 16-mile line in the Washington suburbs was an abuse of the National Environmental Policy Act (NEPA) and posed grave risks to future transportation projects. The ruling provided a clear notice that NEPA is not intended to be used as a tool to endlessly delay critically needed transportation infrastructure.
Among other notable legal victories on the industry’s behalf since 1993, we:
• Beat back a proposed injunction to stop dozens of road projects in California, setting potential legal precedent for other similar cases across the nation.
• Obtained in 2000 the first-ever federal court decision that prevented the Sierra Club and its allies from challenging a regional transportation plan under the “citizen’s suit” provision of the Clean Air Act.
• Mounted a successful 2013 defense of Virginia’s public-private partnership (P3) enabling legislation.
ARTBA’s legal program has five key components that have driven the results.
First, when appropriate, the association initiates litigation as a party plaintiff, taking on difficult cases that others might be reluctant to file or that no single organization or business could fight alone, head-to-head against government agencies and/or well-funded project opponents.
Second, ARTBA issues “amicus curiae” briefs to present compelling legal arguments and policy perspectives that often surpass the argumentation that lawyers for the involved parties are able to provide. ARTBA “friend-of-the-court” briefs serve as a valuable tool in persuading courts about the integrity of the transportation planning and approval process and the resulting safety, mobility and economic benefits that come from highway and bridge improvement projects.
Third, we file detailed issue briefs and public comments with federal and state regulatory agencies on environmental and business-related issues that might adversely impact transportation development. ARTBA ensures that a reasoned voice is heard on behalf of transportation development proponents.
Fourth, the association features a media outreach program to ensure that the views of transportation advocates are accurately portrayed in the general, business and construction media.
Fifth, ARTBA conducts seminars, an annual one-day legal and regulatory forum, and produces reports and publications to keep its members, the legal community and the media informed of litigation and regulatory developments that impact transportation development in the United States.
The flood of regulatory and anti-growth legal challenges to transportation design and construction industry projects never recedes. That’s why we’ll continue to need the financial support of interested firms and executives to ensure we have the necessary resources to continue the fight for the next 25 years. Contact Nick and he’ll explain how you can become a leader in our legal advocacy program.
Rest assured that we will continue to have the industry’s back in the legal arena because true to our mission, ARTBA not only grows, but protects, the transportation construction market.
Nick Goldstein is ARTBA’s vice president of legal and regulatory issues.
Mark Holan is ARTBA editorial director.