Just four days before Maryland was set to sign a key agreement to build the Purple Line, a federal judge blocked the project, saying declining Metro ridership requires re-studying all of the projections for the light rail line from Bethesda to New Carrollton (which will not be built or operated by WMATA).
This would destroy the environment, right? Image from the State of Maryland. (Governor Hogan has cut the grass tracks and many trees from the plan to save money, in an ironic turn for Purple Line opponents who supported him.)
The decision, from US District Court judge Richard Leon, says that the federal government “arbitrarily and capriciously” violated the National Environmental Policy Act (NEPA) by deeming it unnecessary to do another, supplemental Environmental Impact Statement.
Saving the environment, or protecting an exclusive enclave?
The EIS is the way federal law ensures that public works don’t harm the environment, or at the very least, that the government analyze their environmental effect. It’s an important way to be sure the environment isn’t ignored (and that low-income areas don’t bear all the brunt of environmental harm), but it’s been widely misused as a way for wealthy communities with lots of legal resources to block projects.
Nobody seriously believes that saving the environment is the goal of the wealthy plaintiffs, most of whom are from the Town of Chevy Chase and who have been fighting the project in the courts and in the political sphere for many years. The Purple Line will run along the edge of the town, in an old railroad right-of-way that is now the unpaved Georgetown Branch Trail and will be part of a forthcoming Capital Crescent Trail extension.
The trail will remain, next to the Purple Line, but in a less forested setting. It will, however, finally connect to Silver Spring, making it usable for far more Montgomery County residents than today. That’s not a boon to the few wealthy homeowners who have monopolized this transportation-dedicated land for their own semi-private use.
They have, however, repeatedly cast about for environmental excuses to block the project. For a while, that was the Hays Spring Amphipod, an endangered species of tiny, sightless crustacean found only in Rock Creek in the District. Chevy Chase opponents paid a researcher to try to find evidence of the amphipod near the Purple Line’s proposed route in hopes that would stymie the line, but to no avail.
Now, they seem to have hit on an argument that worked at least with one judge: that Metro’s woes mean the Purple Line, which will connect four branches of the Metro, won’t get as many riders. The EIS uses ridership projections to justify the line, including why it should be light rail as opposed to the “bus rapid transit” that Town of Chevy Chase opponents have pushed for (since a bus wouldn’t go through their town). About a quarter of the Purple Line’s riders are expected to transfer to or from Metro.
Image by Peter Dovak and David Alpert.
Metro is suffering. That doesn’t make the Purple Line a bad idea.
Metro ridership has been declining for the last few years thanks in large part to the system’s maintenance, safety, and reliability problems. This, the Purple Line opponents argue, calls into question the calculations in the EIS. Leon bought that argument.
The federal government said that Metro ridership isn’t sufficiently connected to the Purple Line. Metro won’t operate the Purple Line and it uses different technology (light rail versus heavy rail), so there’s no reason to believe the Purple Line would have similar maintenance problems. But Leon said Metro’s dropping ridership still counts as a “substantial change in the proposed action that [is] relevant to environmental concerns” and that dismissing the issue is “arbitrary and capricious” on the agency’s part.
This is, as AU Law professor Tony Varona put it, “absurd.” Once could as easily, and perhaps more credibly, argue that Metro’s struggles will get more people riding the Purple Line as an alternative to Metrorail.
Regardless, the judge is impermissibly substituting his own judgment for experts’ when he decided that Metro missteps create a “substantial change.” Ben Ross said, “Metro’s current problems will have absolutely no impact on a forecast of 2040 ridership made by FTA-approved models. FTA regulations require that the models must be based on COG demographics and the transportation network in the [Constrained Long-Range Plan].” The FTA also argued that Metro should have its problems under control by 2022, and even if the judge thinks otherwise from what he hears at cocktail parties and in the media, that’s not a basis for a legal decision.
Finally, even if ridership will drop, the Purple Line will not harm the environment. Quite the contrary, it will move many people from cars to a more efficient, lower-polluting mode of travel, and likely reduce congestion as well. There’s no serious argument that this ridership change could harm the environment, and protecting the environment is the purpose of NEPA.
Transit gets held to an unreasonable standard
Sadly, too often, road projects sail through NEPA while transit has to repeatedly justify its value. Some of this is because people used to believe new road projects relieved traffic, and people driving faster pollute less. This is false; instead, new highway capacity induces some driving demand, increasing the total amount of driving and thus pollution.
That hasn’t stopped people from (mis)using NEPA and other laws, like California’s even tougher CEQA, to block anything that inconveniences drivers. In San Francisco, a judge held up the city’s bike plan for four years because bike foes argued that lanes would add to traffic and thus pollution; they similarly tried to stop the city from charging at parking meters on Sundays under a similar chain of reasoning.
Maryland will appeal the ruling, and hopefully the DC Circuit will quickly reverse Judge Leon’s ridiculous ruling. The delay will surely cost money; if it’s enough to derail the line is yet to be seen, though certainly what the plaintiffs hope.
If the appeals court doesn’t smack Leon down rapidly, it seems someone could sue in DC District Court to overturn every single EIS for a road anywhere. After all, it’s not just Metro whose ridership projections have fallen; the government has over-estimated the amount of driving nationwide for at least a decade.
While flat VMT does counsel against adding or widening highways, it wouldn’t mean Leon ought to block every road on this basis. It’d be interesting to see what he’d do if someone tried, though.