Friday, Nov. 9, 2007

ICC is a go, judge says

‘No legal or equitable basis’ to block it anymore; opponents say concerns still not answered

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A federal judge cleared the way Thursday for construction to begin on the Intercounty Connector highway, planned for five decades to connect Interstate 270 near Gaithersburg with I-95 near Laurel.

‘‘There is no legal or equitable basis to prevent the Inter-County Connector from moving forward,” wrote Judge Alexander Williams Jr. of U.S. District Court in Greenbelt.

Substantial construction work, which was delayed while Williams considered new arguments that the toll road would harm the environment, may begin as early Tuesday near Gaithersburg, state highway officials said.

The $2.4 billion, 18.8-mile road is expected to be complete by 2012.

Williams said the Audubon Naturalist Society of the Central Atlantic States, Environmental Defense and the Sierra Club, groups that were instrumental in the latest legal challenge, did not demonstrate that federal transportation and highway agencies acted arbitrarily or capriciously in approving the controversial roadway.

Neither does the record show that the state violated the ‘‘spirit, integrity or intent” of federal environmental laws, the judge wrote in his 106-page opinion.

Four of nine Montgomery County Council members and the entire Prince George’s County Council oppose the road.

‘‘We don’t believe it serves any economic benefit to Prince George’s County,” said council Vice Chairman David C. Harrington (Dist. 5) of Cheverly, referring to the road he calls ‘‘the Prince George’s County bypass.”

He shares the Montgomery opponents’ environmental concerns about the road.

‘‘I am disappointed. I think there are outstanding health and air quality and environmental issues,” said Montgomery County Council President Marilyn J. Praisner (D-Dist. 4 of Calverton).

‘‘Obviously we’re extremely disappointed with the ruling... and will be looking at our options,” said Mike Harold, campaign coordinator for the Audubon Naturalist Society.

The organization is going to meet with its lawyers to review the opinion in detail and determine its next step, he said. The group would have 90 days to appeal to the U.S. Court of Appeals in Richmond.

Harold said he did not know when a decision would be made on appealing or other options that might be pursued. That includes ‘‘supporting the growing number of elected leaders to urge [Gov. Martin O’Malley] to reconsider the project,” Harold said.

O’Malley (D) supports the road, as did his predecessor Gov. Robert L. Ehrlich Jr. (R ) who made it a priority of his campaign and four years in Annapolis.

‘‘We think the judge was wrong in ruling against us after hearing how flawed the state was,” Harold said.

Among Audubon’s arguments was that federal officials violated federal regulations by not considering ‘‘Maryland laws protecting rare, threatened and endangered species and habitat.”

Thursday’s decision is a sign of the extraordinary lengths taken to follow state and federal requirements for the project, State Transportation Secretary John D. Porcari said.

‘‘We’ll keep moving forward,” he said. ‘‘We’ve tried to work in good faith with all participants, and we’ll continue to do that.”

Montgomery Councilwoman Nancy M. Floreen, an ICC proponent, said she respects the plaintiffs’ technical and legal concerns, ‘‘but the truth is they never wanted a road.”

More efforts to stop the road will drive up costs and add to uncertainty in communities around it, said Floreen (D-At large) of Garrett Park.

Prince George’s council members say the ICC will benefit Montgomery at Prince George’s expense.

But County Executive Jack B. Johnson (D) sees the highway as a boon. It would open access to businesses in Montgomery County’s technology corridor and help boost retail tenants at Konterra, a large mixed-use project being built near the road’s eastern end in Laurel, said John Erzen, a Johnson spokesman.

The judge dismissed the arguments in a friend of the court brief filed by Prince George’s County. Federal regulations must consider local planning laws, Williams wrote, but does not have to ‘‘bow to local law.”

‘‘The court must, of course, refrain from taking a position on whether the ICC should or should not be built or whether there are alternatives that make better sense politically,” the judge wrote. ‘‘The court’s obligation is to merely ensure that the procedures mandated by these environmental statutes have been complied with.”

Montgomery County Chamber of Commerce President and CEO Georgette ‘‘Gigi” Godwin said her 700 members are ‘‘thrilled” by the judge’s ruling.

‘‘We’ve been waiting 50-plus years for this. This has been a high priority of this chamber as long as I can remember. ... We’re way behind in meeting our infrastructure needs,” she said.

The ICC is generally supported by business leaders in Prince George’s County said M.H. ‘‘Jim” Estepp, CEO of Greater Prince George’s Business Roundtable, a organization of CEOs in the county.

‘‘Thrilled,” too, was the reaction of the Greater Washington Board of Trade, a regional group that advocates for business interests, said its lobbyist, Robert T. Grow.

Longtime ICC proponent Sen. Jennie Forehand (D-Dist. 17) of Rockville said it has been a long-hard fight to rescue the road since Gov. Parris N. Glendening (D) pulled his support almost 10 years ago.

Forehand and other proponents contend the ICC will alleviate congestion and make traveling safer.

Opponents say it will do little to ease congestion on existing roads and could draw more traffic.

The road is to run north of the Capital Beltway, through environmentally sensitive areas in a region that has struggled to meet federal clean air standards.

In its suit, Audubon argued that federal agencies violated environmental laws by not considering all the health impacts of additional traffic and by not considering alternatives.

Environmental Defense and the Sierra Club contended that monitoring devices were placed too far from the planned path of the road to adequately assess fine-particle pollution that would be generated by traffic.

Williams said the l Environmental Protection Agency’s consideration of black carbon particulates was adequate as was ‘‘use of a nearby monitor in locations similar to the proposed project.”

The opponents also said that the air analysis did not assess whether ICC traffic would violate state limits on toxins for which there are no federal standards and that the road does not qualify for federal funding because it does not meet a new requirement that transportation projects around urban areas minimize fuel consumption.

Staff Writers Daniel Valentine and Marcus Moore contributed to this report.