"ARTBA Takes on Sierra Club in Georgia Highway Dispute," read a May 10 headline in Engineering News-Record. The March 15 Congressional Quarterly Daily Monitor put it this way: "Road Builders Sound the Alarm on Court Decision." Both publications help capture the essence of ARTBA's aggressive legal activities in the environmental arena.

Our legal advocacy program that challenges federal regulations and court decisions that could negatively impact our members' ability to conduct their business is an anchor of ARTBA's member services and a cornerstone of the "PRIDE in Transportation Construction" campaign. Nowhere has this been more evident then in the environmental arena, as we have gone to bat again and again since 1993 to oppose those who seek to halt and delay necessary transportation improvements. And with generous member contributions to the ARTBA Industry Advancement Fund (IAF), we are getting results in several court cases this year.

ARTBA's most recent victory came June 21 when a closely-watched Sierra Club lawsuit was settled out of court. The settlement was announced on the day that a federal judge had called a hearing to take oral arguments on ARTBA's motion to intervene in the case.

In January 1999, the Sierra Club and two local organizations filed suit in federal court seeking an injunction to stop 61 highway improvement projects in the Atlanta metropolitan area valued at nearly $700 million. The defendants in the case were the Georgia Department of Transportation, the U.S. Department of Transportation and the Atlanta metropolitan planning organization.

In its suit, the Sierra Club asserted that these agencies had not complied with provisions of the Clean Air Act, the Transportation Equity Act for the 21st Century, and other provisions of federal law in approving the targeted projects. Specifically, the case was aimed at setting a national precedent on whether or not highway projects that had already been approved by federal and state authorities could continue to receive federal funding if a state or region's Clean Air Act transportation conformity plan had not been approved by the U.S. Environmental Protection Agency (EPA).

A number of the projects targeted by the suit were already under construction and the contracts were help by ARTBA member firms.

The Atlanta case was impacted by a March 2, 1999, federal appeals court decision-Environmental Defense Fund (EDF) vs. Environmental Protection Agency (EPA). In a 2-1 decision, the court ruled that federal funds could not be invested in highway projects if an area did not have an approved conformity plan.

The EDF vs. EPA decision set the stage for the Atlanta case to serve as the first "real world" application of that ruling. On May 3, ARTBA filed a motion to intervene in the Atlanta case on behalf of its members. The National Stone Association, National Asphalt Pavement Association and the American Concrete Pavement Association subsequently joined ARTBA as partners in the action. ARTBA's motion was challenged by the Sierra Club and its co-plaintiffs.

The judge in the Atlanta case scheduled a hearing for June 21, 1999, to hear arguments on ARTBA's motion to intervene and a similar motion filed by five suburban Atlanta counties. At the hearing, the plaintiffs announced that a settlement had been reached with the government agency and that they were withdrawing their suit.

On the Friday evening before the hearing on the ARTBA motion was to be heard, June 18, the Federal Highway Administration and U.S. Environmental Protection Agency had announced final guidelines to FHWA regional offices on how to implement the March 2 decision. The Atlanta settlement closely tracked that guidance.

The 17 highway projects (or phases of them) that were funded and under construction prior to March 2, 1999, can continue.

Georgia DOT and the states local governments can use their own money to fund construction, design work and move ahead with right-of-way acquisition of most of the other 44 projects, if they choose. These expenditures, however, would not be reimbursable by the federal government at a later date.

Federal funding will resume for projects that are included in a future EPA-approved Clean Air Act transportation conformity plan.

Our actions in the Atlanta case were an exercise in "damage control" given the March 2 EDF vs. EPA decision. Our goal was to influence the settlement negotiations-or have a seat at the table if the case went to trial-to assure the best possible outcome for our members and to prevent a harmful national precedent.

Our intervention motion helped move negotiations on a settlement to completion. It was not a coincidence that the settlement and withdrawal of the suit were announced at a hearing called to address our intervention motion. We also believe our motion had a positive influence on the decision making at U.S. DOT and U.S. EPA in the development of what is admittedly rigid guidance for application of the March 2 decision.

In Atlanta, no construction work that was underway was stopped-a major ARTBA objective. The option of using state and local money to move federal-aided projects forward in an area with a conformity lapse was also preserved.

Among the issues raised by the Sierra Club in its Atlanta filing and left unresolved by the settlement is the whether or not the concept of "environmental justice"-initiated by an Executive Order signed by President Clinton-must be applied to the transportation project approval process.

The Sierra Club asserted that it should in its filing. There is no case law yet on this issue. The settlement highlights the need to continue to directly challenge the efforts of anti-growth groups to capitalize on the EDF vs EPA decision. Determined, strategic litigation, regulatory and legislative efforts by ARTBA and its allies will clear the way to full implementation of TEA-21 and other transportation improvement initiatives.

On May 14, ARTBA won a major victory when a federal court told the EPA that its plans to further limit ozone and dust emissions did not stand up to a constitutional challenge presented by ARTBA and almost two dozen national organizations in 1997.

This case is important because the Clean Air Act (CAA) and federal surface transportation law link state and regional transportation planning and project approval processes to the attainment of federal air quality standards. The proposed standards would put over 600 counties currently in compliance with federal standards out of compliance. Tougher standards mean bigger hurdles for project sponsors to overcome-regardless of public demand or need for the transportation improvements.

While the May 14 decision on ozone and dust emissions was great news for our industry, we must not rest on our laurels. The EPA has already announced it plans to appeal the case. ARTBA will continue working to preserve the industry's legal victory in this case.

The Tulloch case involves a 1993 decision by the Corps and EPA to extend the legal definition of "discharge of dredged material" in wetlands development decisions to include the redeposition of material caused by earth-moving equipment incident to land clearing and other excavation activities. The agencies' intent was to use "incidental fallback" as a basis for requiring a federal permit under the Clean Water Act.

ARTBA and four other organizations challenged the Tulloch rule more than five years ago, winning an initial court decision in 1997 and weathering five appeals by the U.S. Department of Justice. In January 1999, the Justice Department decided not to appeal the case to the U.S. Supreme Court.

In May, the Corps and EPA published a final regulation implementing the court decision in the Tulloch case. The new regulation brings the agencies' jurisdiction into conformance with the original January 1997 federal court decision. It specifically excludes "incidental fallback" from the definition of "discharge of dredged material," allowing certain construction activities to take place without the need for a permit.

The association is currently working with Congress to develop legislative language to prevent abuses of the Tulloch victory, while limiting the jurisdiction of the Corps and EPA in wetlands permitting to reasonable levels.

The cases outline above represent ARTBA's most recent forays into the legal arena on behalf of its members on potentially precedent-setting legal cases that could impact the transportation construction market. There will be others. We have given "no-growth" and environmental extremists notice that ARTBA will challenge them on every playing field!

For more information about ARTBA's environmental legal advocacy program, contact ARTBA's Vice President of Environmental & Regulatory Policy Greg Smith at 202-289-4434.