Judge denies Sierra Club plan to submit reports
The Denver Post
A federal judge has rejected the Sierra Club’s attempt to submit the work of outside experts and other information to buttress its case that the Interstate 70 project through northeast Denver will harm nearby residents’ health.
But the ruling, issued late in the day Friday in U.S. District Court in Denver, allows the Sierra Club and several neighborhood and community groups to seek more information from federal officials about why they made disputed changes to airquality modeling.
The order comes after the presiding judge in the case, William Martinez, ruled last week that the project could begin construction on the 10mile widening project this summer while the plaintiffs continue their court challenge.
In the new ruling, Magistrate Judge Michael E. Hegarty denied the Sierra Club’s motion to supplement the administrative record underlying the approval of the project by the Federal Highway Administration (FHWA) in January 2017. The decision ended an extensive environmental impact review on the Colorado Department of Transportation’s $1.2 bil lion project, which includes replacing the nearly 2mile viaduct through the ElyriaSwansea neighborhood with a wider highway that is sunken below ground level into an open trench.
“I first find plaintiffs have not met their burden of establishing any of the narrow exceptions that would entitle them to supplement the record,” Hegarty wrote in the 25page order. “Importantly, none of the documents plaintiffs submit demonstrate that FHWA failed to consider a relevant factor,” the project’s impact on human health.
The magistrate judge also partially denied another motion’s attempt to allow other outside material, while allowing for “limited discovery” on the airquality modeling.
On that issue, the FHWA has defended its decision to change the projection modeling for particulate concentrations at seven data sites, out of more than 3,200, so that they were based on the actual elevated height of the rebuilt freeway near the Interstate 25 interchange. The rest of the sites were calculated at ground level.
The Sierra Club’s outside expert found the modeling change averted the violation of federal standards for five of the seven sites, but FHWA denies that was the motivation. Hegarty ruled that the Sierra Club may submit five written questions in coming weeks “related only to FHWA’s decision to separately model the seven receptor locations.”