Lawsuit challenging finished $87M I-630 project ongoing

An $87.3 million project to widen a section of Interstate 630 in west Little Rock has been completed, but a federal lawsuit challenging the project remains ongoing.

Little Rock lawyer Richard Mays said he will seek potential remedies that remain available on behalf of the plaintiffs in the case if they prevail.

“This case is not moot,” he said.

Mays on Tuesday filed a motion seeking a summary judgment in the case based a review of the administrative record — totaling more than 5,000 pages — that the defendants Arkansas Department of Transportation and the Federal Highway Administration filed with the U.S. District Court last month.

The administrative record showed that the agencies “relied upon a contractor to perform the environmental review necessary to qualify for a categorical exclusion and it wasn’t done completely,” Mays said in an email.

The lawsuit filed by Little Rock residents George Wise, Matthew Pekar, Uta Meyer, David Martindale and Robert

Walker claims the agencies failed to assess the potential environmental impacts of the project as required by federal law.

The lawsuit was filed in July 2018 just as the project was about to begin. Among other things, the lawsuit sought a temporary restraining order and preliminary injunction to halt the project while the lawsuit was litigated.

The lawsuit said the Arkansas Department of Transportation and Federal Highway Administration had failed to comply with the National Environmental Policy Act of 1969 by not completing an environmental impact statement for the work.

The defendants contended that the road project qualifies for categorical exclusion under the Act and, therefore, did not need an impact statement.

Projects that would not extend beyond an existing roadways’ right-of-way are eligible for categorical exclusion. The defendants said in a 2016 report that the I-630 project did not require any additional permanent right-of-way, and therefore met the categorical exclusion requirements. The state Department of Transportation already owned the land necessary to add two more lanes to the interstate.

U.S. District Judge James Moody rejected the request to halt the project, which widened a 2.2-mile stretch of I-630 between Baptist Health-Little Rock and South University Avenue from six lanes to eight lanes. The project was completed earlier this year.

Last December, the 8th U.S. Circuit Court of Appeals upheld Moody’s decision, which returned the case to the lower court.

In the brief supporting the summary judgment motion filed Tuesday, Mays said he only discovered the extent of the defendants’ inadequate assessment of the potential environmental impacts when he reviewed the administrative record in the case.

Under federal regulations, “the defendants’ decision to use that categorical exclusion must be explained and justified by some data and other scientific information in the record,” he wrote. “That explanation and justification is totally absent from the administrative record.”

The potential environmental impacts were largely limited to increases in noise levels, and were based on work performed by two contractors. Mays’ brief focuses on two documents: the preliminary environmental constraints memorandum and, in particular, the department’s environmental impacts assessment form, which he said the department developed for use in justifying categorical exclusions.

The latter contains 28 subjects for which environmental impacts are to be assessed and rated as “none,” “minor” or “insignificant.”

“Plaintiffs do not quarrel with the form. It was the form used — or more specifically, not used — with which the plaintiffs have a quarrel.”

The plaintiffs’ issue has been with the impacts the project would have on air quality and other issues in the surrounding neighborhoods, which include schools and churches. Part of the project’s justification was the projected increase in traffic, going from 119,000 vehicles daily to 141,000 within 20 years.

The administrative record contains “absolutely no information, data or other materials indicating that any assessments or analysis on potential impacts on air quality, cultural resources, economics of the area and environmental justice … were done to support … conclusions that there would be no impact on those parts of the human environment,” Mays wrote.

He cited testimony at the 2018 hearing from agency personnel who said they never saw “any data or analysis to support the ‘finding’ that the project would cause no air impacts.”

“This is remarkable, especially when considered in light of the purpose of the project to increase highway capacity to enable an additional 30,000 vehicles per day to drive over the project area … The mere checking of a box on a form by a contractor sitting at a desk will not suffice.”

Although the project is completed, Mays said Moody, as a federal judge, “has broad discretion to fashion equitable remedies, and may craft declaratory and injunctive relief designed to preclude a federal agency from avoiding or acting in contravention of its statutory and regulatory authority.”

Mays said Moody could order the defendants to assess current air quality in the corridor, conduct modeling on future air quality and develop options to mitigate any “air toxins that violate applicable standards or guidelines for exposure to humans and implement an option approved by the court after the hearing.”

Noting other projects the state Transportation Department has completed or will complete under a categorical exclusion, Mays also proposed that the defendants be permanently enjoined from using a categorical exclusion until they have submitted to “court and counsel for review.”