How a judge can mess with transit

Its not easy to agree with Governor Hogan on transportation, but he has a point in his criticism of a federal judge who is messing with the Purple Line.

...even with federal funding, we can’t move forward because of a judge who lives at a Chevy Chase country club (Governor Hogan in April 2017)

Purple Line: Stop work order issued

The judge has become front and center in the matter of a lawsuit filed in 2014 by two Town of Chevy Chase residents—John Fitzgerald and Christine Real de Azua—and the trail advocacy group Friends of the Capital Crescent Trail. The opponents of the Purple Line contend that the  Environmental Impact Study (EIS) is flawed. An EIS is a requirement under federal environmental (NEPA) laws from the 1970's. U.S. District Judge Richard Leon agreed in November last year that the Federal Transit Administration (FTA) must consider the safety and ridership problems faced by the nearby Washington Metro transit system as part of the environmental analysis of the Purple Line. The judge ordered FTA to consider whether or not Metro’s struggles required the agency to undertake a lengthy and time-consuming supplemental environmental impact statement (SEIS). FTA concluded the SEIS was not warranted.

Then in May of this year the same federal judge upheld his earlier opinion even after FTA clarified the ridership issue. Judge Richard Leon wrote his decision was based solely on how declining Metro ridership and recent Metro safety issues might impact projected ridership for the Purple Line, a 16-mile light-rail that’s separate from Metrorail but that would include stations near or at several Metro stations. FTA maintains that ridership forecasts are sound.

After Metro’s struggles are accounted for, the Purple Line would attract 67,000 daily riders by 2040, they estimated. Even if there are no transfers between Metro and light rail, the FTA said, it would still be “one of the most robust light-rail systems” the agency has ever funded. (Streetsblog)

The second ruling allows MTA or the State of Maryland to appeal the decision or to conform. Either way, it would further delay the final federal funding agreement which had been imminent last year when the judge's first ruling came three months after the federal government had approved the final EIS.

“Moreover, the judge’s concerns were thoroughly addressed by federal transit officials by studies already completed and in public testimony more than five months ago. Ultimately, this ruling completely ignores both federal and state transportation experts, as well as environmental advocates, who are strong proponents of the Purple Line.
This is not a political issue – it’s an important transportation and transit priority for Maryland and the region that has strong bipartisan support. The state will continue to pursue any and all legal action to ensure that the Purple Line will move forward.” (Statement by Governor Hogan on May 22, 2017)

The Maryland Attorney General’s Office said it would appeal a May 22 ruling. With a suspended EIS the feds cannot fund the project nor can construction, originally scheduled to start late 2016, finally begin. With the volatility of federal policies under the current administration, the delay could mean that the promised $900 federal contribution for the 16.2 mile Purple Line project could disappear. So far Congress has appropriated $325 million which tye State can't access now.
If the federal funds would be reallocated to other projects the $6 billion Purple Line would be dead, since the State has set aside only a small contribution drastically scaled back from the original over $700 million envisioned under Governor O'Malley.

The Purple Line: Not part of WMATA's Metro but connecting it

The MTA contends that the State had to spend $312 million on planning, real estate and permitting costs, while not receiving federal or local reimbursements for the work. "Even though the design is the responsibility of the concessionaire, MTA is still on the hook for millions of dollars a month in oversight, financial management, FTA reporting, submittal reviews, and right of way acquisition" explains former Purple Line project Director Henry Kay who now works in the private sector and is no longer associated with the project.

Running out of funds, State Transportation Secretary Pete Rahn ordered the state’s private partner on the P3 project, Purple Line Transit Partners, suspend the execution of new construction contracts and the procurement of non-essential materials and equipment as well as to freeze hiring of construction staff.
Rahn also asked the Maryland Transit Administration (MTA) to freeze hiring of oversight staff for the project and suspend state funding for county design reviews. “All parties are directed to limit the obligation of further costs for the Purple Line project to those of agreed necessity,” Rahn  said in a statement.

The fact that the Purple Line is set up as a public private partnership (P3) further complicates the matter. The State is on the hook for the environmental impact statement. Cost increases from the delay cost the State,  a potential failure of the project would bring about complicated claims by the private consortium for all kinds of losses. As the P3 is structured, the private side would take on risks associated with engineering problems or delays during construction but not those going back to the phases of the project conducted by the MTA.

Judge Leon

Even if one wouldn't want to share the Hogan's personal attacks on the federal judge which included the location of his residence and his wife's membership in a country club, several aspects of the judge's rulings are disturbing and go to a much bigger issue than Hogan's transportation policies or the judge's personal associations: The bigger issue is how NIMBY type opponents have turned the National Environmental Protection Act (NEPA) into their favorite tool for frivolous law suits turning NEPA into one of the most unwieldy elements in the approval process of large infrastructure projects the country needs so badly. In the case of the Purple Line the judge's decision is especially questionable  since NEPA certainly does not include an investigation of economic viability or accurate ridership forecasts, both ostensibly not environmental matters.

"I find that defendants’ failure to adequately consider [Metro’s] ridership and safety issues was arbitrary and capricious, and that these conditions create the ‘seriously different picture’ that warrant an SEIS,” (Judge Leon in his second ruling).

Even if the judge's reasoning would ultimately not hold up in an appeal, the stalling between the first and second ruling and the cost of the delays may just be what it takes to kill the project, a hard to imagine outcome for the State of maryland which had assembled an impressive trio of large New Starts transit projects under Governor O'Malley and may be left with nothing at all a couple of years later. That wasn't what NEPA was or should be all about.

Klaus Philipsen, FAIA

Hogan statement on the judge's ruling
Streetsblog on the judge's ruling
ARTBA article
Bethesda Magazine article on second ruling
Bethesda Magazine's article on first ruling
Washingtonion opinion piece about the judges "ridiculous ruling"

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