Hearing on I-30 project hits snag
Decision on expert testimony delayed by lawyer’s ‘tragedy’
A legal bid to suspend work on the nearly $1 billion 30 Crossing project hinged, in part, on whether the plaintiffs could persuade U.S. District Judge James Moody to allow two expert witnesses to testify.
Moody, after listening to and participating in arguments over the question on Thursday afternoon, initially said he would announce his decision today when the hearing was originally scheduled to resume.
But he abruptly continued the hearing at the request of the federal attorneys participating via a video application after one of them experienced a “personal tragedy” during the hearing. Instead, Moody scheduled a conference call among some of the attorneys for 9 a.m. to determine when the hearing would resume.
The hearing was over a request for an injunction filed by a coalition of downtown neighborhood groups, who have sued to stop the project that will widen to 10 lanes parts of the 6.7-mile Interstate 30 corridor through downtown Little Rock and North Little Rock, modernize its interchanges and replace the bridge over the Arkansas River.
They contend the state Department of Transportation ignored pressing effect the project would have on the
human environment in the six years of planning and the Federal Highway Administration ignored them in ultimately approving the project twice.
They are seeking a more detailed environmental review called an environmental impact statement rather than the environmental assessment the state agency conducted with the approval of federal highway officials, given the magnitude of the project.
The plaintiffs’ lead attorney, Richard Mays of Little Rock, called 30 Crossing the “largest public works project ever undertaken in the state” and “will be with us for a lifetime for anyone who is living today. So it’s a serious, serious matter.”
One of the government attorneys representing the Federal Highway Administration called the injunction request “overly broad” and said the request fails on one key legal test — “success on the merits.”
“Plaintiffs’ claims lack merit,” said Christopher Chellis, trial attorney in the environmental and natural resources division of the U.S. Department of Justice. “It’s not a close call. These aren’t the kind of issues that the courts have looked at in the past and decided warrants an injunction.”
He noted the project will be built largely over existing right of way and on largely the same footprint it has now in an urban area that already sees a “lot of traffic, noise and congestion impacts,” which the project seeks to improve.
Rita Looney, the chief counsel for the state Transportation Department, likened following the process under the federal National Environmental Policy Act guiding the 30 Crossing project to construction as akin to taking college courses with the department as the student and the Federal Highway Administration as the teacher.
The environmental assessment, a voluminous 7,000-page document with 18 appendices, is the paper the department submits to be graded by federal highway officials.
“The [Transportation Department] student is not required to pass the course with a perfect paper,” Looney said. “An A-plus project. But the [department] is required to comply with all of what [the National Environmental Policy Act] says in that course work and present a project that checks all the boxes and shown turning over a ‘hard look’ at all of the areas that are required to be looked at in that process.
“And then the Federal Highway Administration gives that grade. If a passing grade is given, the project may go forward.”
Moody isn’t required to determine whether the department deserved the passing grade, she said.
“Even if there is a violation of not having looked at something quite close enough, there’s no presumption of irreparable harm,” Looney said. “They have to show actual evidence of harm.”
Three people representing different neighborhoods who are among the plaintiffs testified that they feared the increased traffic, pollution and noise the modernized corridor would create not only for the interstate adjoining their neighborhoods but for the downtown streets.
The representatives are Joshua Silverstein, a professor at the University of Arkansas at Little Rock William H. Bowen School of Law, who lives in Little Rock’s River Market area; Frederick Gentry, vice president of the Pettaway Neighborhood Association; and Barbara Barrows, who lives in the Hangar Hill neighborhood and spoke on behalf of its neighborhood association.
All three testified that they attended many of the public meetings. Silverstein and Barrows also submitted comments in opposition to the project.
They worried about the project’s effect on their property values if the traffic, noise and pollution increased.
Mays produced photographs of Barrows’ backyard, which overlooks the Interstate 630/Interstate 30 interchange, that included the deck Barrows and her husband frequently used to look out on a yard filled with birdfeeders and of a raccoon that frequents their yard.
“Any objection to a picture of a raccoon?” Moody asked before accepting it as plaintiffs’ Exhibit No. 8.
Mays ran into trouble when he wanted to put on his next witnesses. They were Casey Covington, deputy director of Metroplan, a long-range transportation planning agency for Central Arkansas, and John Kirk, a history professor at UALR who specializes in the civil-rights movement.
Mays wanted Covington for his expertise on computer traffic modeling and Kirk for his expertise on the city’s troubled racial history that includes the racial and economic divides created by the construction of I-30 and I-630.
Their testimony, Mays said, would underscore the serious flaws of the environmental review the state transportation officials oversaw and federal highway officials approved.
Their testimony will show the government failed to take a ‘hard look’ required by the National Environmental Policy Act at the effect the project would have on the human environment, he said.
“It’s not sufficient they simply look at environmental issues .. they have to take a ‘hard look’ at it,” Mays said.
But government attorneys said that by law and legal precedent, Moody must limit his review to the voluminous administrative record before the court. The testimony from Covington and Kirk would supplement the record, which isn’t allowed.
“Courts have … recognized that witness testimony offered on its face to explain a technical issue should not be permitted if in fact it amounts to an endeavor to engage the agency in a battle of the experts,” they said in a legal papers filed Thursday.
That argument left Mays exasperated.
“How else can you point out the shortcomings in the record without introducing testimony?” he asked.
But Moody pointed out that the plaintiffs had ample time to get the issues in the record during the environmental assessment process.
“I-630 has been around since I was a kid,” he said.