A federal lawsuit was filed today to halt work on an expansion of Interstate 630 between Baptist Medical Center and University Avenue because the Arkansas Department of Transportation didn’t perform an environmental assessment of the work.
Environmental lawyer Richard H. Mays and Heather Zachary filed the lawsuit as a class action for five plaintiffs George Wise, Matthew Pekar, Uta Meyer, David Martindale and Robert Walker. The case, according to the court docket, has been assigned to Judge Billy Roy Wilson.
UPDATE: The case has been shifted to Judge Kristine Baker. Mays told Leslie Peacock that there will be a hearing at 2:30 p.m. Thursday on a request for a delay in plans to tear down an overpass Friday. Mays said the Highway Department refused service of the lawsuit today, which is somewhat unusual.
We’ve asked for comment from the Arkansas Department of Transportation. A spokesman had not seen the suit at the time of our first call. By late afternoon, the department had not offered a comment. A spokesman also said he’d attempt to get answers on why the lawsuit was refused and whether the department would attempt to continue to refuse service.
UPDATE II: From ADOT’s Danny Straessle:
It is my understanding the service is for Director Bennett and at the time of attempted delivery, he was not in the office. No one has authority to accept on his behalf.
Note the suit doesn’t name Bennett. Defendants are the Highway Department, U.S. Department of Transportation and Federal Highway Administration. He is the agent of service. I’ve asked if they plan to make him available any time soon for service or if he’ll be unavailable through scheduled demolition of the bridge Friday. Mays said he’d suggested an informal agreement for a delay at least until a hearing. UPDATE: Straesslle said Bennett is out of state all this week. There’s no indication the department intends to respond to the suit until he’s back. If demolition proceeds, it will of course substantially alter the posture of the suit.
STILL MORE UPDATE: A TRO hearing IS set at 2:30 p.m. in Baker’s court. Though the Highway Department hasn’t accepted service, its chief counsel, Rita Looney, has said she will attend the hearing. The Justice Department and the Federal Highway Administration also will participate.
Widening of the freeway began Monday night. Mays is asking for a temporary restraining order on the work until he can argue his case, which has implications for the larger looming highway project proposed for Interstate 30 downtown.
The department contends the project doesn’t require an environmental assessment because it is entitled to a “categorical exclusion” under the National Environmental Protection Act. He said those exclusions apply only to projects that don’t involve significant environmental impacts. The 2.2-mile project, with the replacement of every bridge on the
The Plaintiffs are persons who regularly and consistently use or live in or near I-630, and who will be exceptionally and severely damaged, prejudiced and aggrieved by the implementation of the Project, in that the Project would inflict permanent and irreparable change and damage upon the project area’s ecosystem; upon traffic usage and patterns; and adversely affect the ability of the plaintiffs and their members to use I-630 in their daily commutes, and to enjoy their homes and neighborhoods.
Mays’ lawsuit said the project should be halted until the state complies with the environmental assessment or impact statement required by NEPA.
The project expands the six-lane freeway to eight lanes, with additional auxiliary lanes in some locations and 10-foot shoulders. A new bicycle and pedestrian bridge
Mays notes the department’s own document for an exclusion notes lanes will be closed from 8 p.m. to 6 a.m. Monday through Friday and the Hughes Street overpass will be closed for three months for demolition and reconstruction. Sp3eed limits will be reduced.
The suit recites at length the law and rules pertaining to environmental impact and deciding whether highway projects may be excluded from
In this case, the state simply declared the exclusion applied and the Federal Highway Administration approved the exclusion. However, the suit argues that the exclusion given in 2009 expired in 2014 and has not been renewed.
The legal claims:
* The project is not excluded from environmental review because of significant air, noise and water quality impact and significant impact on travel patterns.
* The Highway Department didn’t adequately assess impact. It merely checked boxes on a one-page form, with no supporting documentation.
* It did note “significant” noise impact in several
* There will be significant traffic impact and neighborhood noise impact will be great at night.
* The plan doesn’t make allowances for disruptions from apparent plans to demolish and replace two other overpasses in addition to the Hughes overpass.
* The department didn’t consider the traffic impact on cross streets and alternate routes —
“Markham, Mississippi, Rodney Parham, Cantrell Road (Highway 10) and other major arteries from west Little Rock to and from downtown Little Rock are already heavily traveled. There is no analysis contained in the Tier 3 Categorical Exclusion document approved by Defendant FHWA, nor any other document prepared by or for the Defendants and reviewed by Plaintiffs that analyzes the effect of the potential impacts of the I-630 Project on traffic patterns, travel time, the capacity of other major streets to handle overflow from I-630, safety hazardous from the diversion of such traffic, or other considerations.”
* A small “but important” consideration is disruption of access routes to Baptist and St. Vincent hospitals.
There’s also a mention of a project on which Mays has already been studying — the $600 million-plus 30 Crossing project to widen Interstate 30 through Little Rock and North Little Rock to 10 lanes and produce disruptive changes in the downtown grid.
The suit says NEPA requires an assessment of “the indirect and cumulative impacts” in connection with past, current and future projects.
There are other actions occurred or planned in the Little Rock area that could indirectly or cumulatively have impact on the driving public, particularly those persons who customarily use I-630 to commute to work. Those other actions include the proposed “30 Corridor” project that will, if executed according to the schedule announced by the ArDOT and FHWA, be constructed simultaneously with the work planned for the I-630 Project. The 30 Corridor project has particular relevance because I-630 has its eastern terminus at I-30, and traffic issues on one highway impacts traffic on the other. Another proposed highway project that could indirectly or cumulatively impact the I-630 Project, and vice versa, is the planned reworking and modification of the interchange of I-430 and Highway 10 (Cantrell Road).
If the two additional projects mentioned above (30 Corridor and I-430/Highway 10) occur simultaneously with or significantly overlap construction on the I-630 Project, traffic patterns could be affected in that (i) traffic wishing to use Highway 10 as an alternative to I-630 would potentially be delayed or denied access to Highway 10 from I-430 during work on that interchange; and (ii) persons who are able to use I-630 to its intersection with I-30 may be delayed or denied access to I-30 due to work on that interchange.
Mays writes that past court decisions in Arkansas have held that categorical exclusions essentially apply only to small projects on existing roadways “and not to a major increase in the number of lanes, auxiliary lanes and bridge replacements, to name a few of the modifications.”
The $87.4 million I-630 project, he said, ” is nothing less than a major overhaul of that expressway.”
He said the department had done some noise study, but none on air pollution, which could affect vulnerable people nearby. The failure to consider this was arbitrary and capricious, he argues.
Environmental impact and substantial controversy about such impact are both extraordinary circumstances that outweigh an exclusion under the law, he argued. The controversy is evidenced by concerns about noise expressed at a single public hearing on the project in 2015.
A total of 50 comments on the Project were received. Of those, 28 comments were made regarding existing and increased noise resulting from the Project, and 18 expressed the desire for noise abatement to be included in the Project. Nineteen comments related to the removal of basketball courts currently beneath the I-630 bridge at Kanis Park; 15 of those comments listed Kanis Park and/or the basketball courts as an environmental constraint. (The City is “exploring options” for relocating the basketball courts, but there are no plans for their replacement.) Seven comments were made about concerns during construction, including noise, dust, damage from heavy vehicles and proximity of staging areas to homes. Four comments expressed concern that the Project would increase congestion on other roads in the community.
Mays notes the noise studies weren’t completed until AFTER the public hearing and that no information was presented then about the removal of bridges, road closure
The suit asks for a temporary restraining order to stop work subject to a further order following a reasonable time for briefing and response and a preliminary injunction hearing.