One of the most valuable and tangible benefits of ARTBA membership is found in the association’s aggressive legal advocacy program.
From the halls of Congress to the halls of justice, ARTBA regularly takes action to defend transportation design and construction industry market interests when threatened by dubious regulation or litigation.
Since 1993, ARTBA has invested more than $1 million in environmental litigation on the industry’s behalf. And the return on that investment? ARTBA’s legal advocacy has allowed nearly $52 billion in approved, yet challenged, U.S. transportation projects and plans to move forward.
Among ARTBA’s most notable legal victories on the industry’s behalf:
- Preventing no-growth groups from using the Clean Air Act’s transportation conformity process to delay or stop state and local highway projects.
- Successfully challenging EPA and U.S. Army Corps of Engineers attempts to unlawfully expand federal wetlands jurisdiction. By limiting the jurisdiction of these agencies, ARTBA has helped to allow numerous construction projects to proceed without unnecessary federal intervention.
- Obtaining the first-ever federal court decision in 2000 which prevented the Sierra Club and its allies from challenging a regional transportation plan under the “citizen’s suit” provision of the Clean Air Act. The provision had been used routinely to file cases blocking highway projects across the country. It had also allowed them to collect attorney’s fees if successful. These fees were then used to fund additional anti-road litigation.
- Beating back a proposed injunction to stop dozens of road projects in California, setting potential legal precedent for other similar cases across the nation.
- Creating legal pressure that sped up a court settlement in Atlanta, Ga., allowing dozens of highway projects to move forward.
- Setting legal precedent guaranteeing construction industry associations a legal right to a seat at the table in environmentally-based litigation seeking to stop regional, state or local transportation plans.
Current Advocacy Efforts
Maryland Purple Line Project
In August 2017, ARTBA urged a federal appeals court to overturn a lower court ruling blocking Maryland’s Purple Line light rail project.
The 16-mile Purple Line between Bethesda and New Carrolton is one of the nation’s largest P3 transit projects. The project has been mired in litigation since 2014 by anti-growth opponents.
In August 2016, a lower court halted construction saying the Federal Transit Administration failed to consider declining ridership on the Washington, D.C. Metro system. Both the federal government and the state of Maryland appealed the decision contending that there was no obligation under NEPA to consider ridership on the Metro system.
In an amicus brief to the U.S. Court of Appeals for the District of Columbia circuit, ARTBA said the lower court ruling could have negative impacts and set bad precedents on the environment and the ability of other states to move forward on P3s.
OSHA Silica Rule
On March 24, 2016, the Occupational Safety and Health Administration (OSHA) issued new regulations to significantly tighten the existing federal standard for allowable worker exposure to crystalline silica dust. Work zone safety is a top industry and ARTBA priority. And that is why, on behalf of its membership, ARTBA engaged in litigation to stop implementation of this unwarranted regulatory action that the association believes has the potential to increase overall safety risks to transportation construction workers.
ARTBA has been active in the crystalline silica issue for almost 20 years on its own and as a member of the Construction Industry Safety Coalition (CISC). The association’s biggest concern with the OSHA standard is that it would divert significant resources—human and financial—away from activities aimed at mitigating, if not eliminating, documented, serious hazards to our workers’ health and safety such as runovers and backovers and work zone intrusions.
Here are the facts about the crystalline silica issue that ARTBA has repeatedly presented to OSHA in written regulatory comments and testimony:
- The new rule is based on outdated health data. In setting the new standard, OSHA has relied on studies from as early as the 1930s. More recent data clearly shows silica exposure has been dramatically reduced. According to the Center for Disease Control (CDC), deaths due to silicosis have declined 93 percent over the past 39 years.
- The new rule is based on faulty economic data. OSHA estimates the rule will cost the construction industry $659 million per year. An ARTBA co-sponsored, independent economic analysis of the proposed standard, conducted by Environomics, Inc. for the CISC shows the new standard will cost the construction industry nearly $2.2 billionper year.
- The new rule may be doing more harm than goodby requiring workers to wear respirators in hot environments, potentially exposing them to otherwise avoidable heat stroke and stress.
- The new rule sets air sampling requirements that are unworkable in our industry, requiring time consuming sampling and testing procedures that will yield virtually meaningless results, since, by the time the results are known, the “workplace” location and conditions tested will have moved and/or changed.
Despite ARTBA’s numerous attempts to have these concerns addressed by OSHA during the rulemaking process, they have been ignored in the final rule. By helping take the matter to a federal court, ARTBA aims to have the rule struck down.
11/18/16 – Opening Brief of ARTBA and Industry Allies
EPA “Waters of the U.S.” Rule
ARTBA and 11 other associations sued the U.S. Environmental Protection Agency (EPA) July 2, 2015, alleging the agency disregarded important administrative law requirements and exceeded its jurisdiction when it released a rule defining “waters of the United States.” The rule would require additional burdensome permitting requirements and likely also be used as a litigation tool by project opponents, both of which would result in delays to key transportation improvements and ultimately cost taxpayers more money.
In fighting in the rule in the legislative and regulatory arenas for nearly a decade, ARTBA has consistently warned EPA that roadside ditches play an important role in the public health and safety of the nation by dispersing water, and they should not be regulated like wetlands.
The new rule, however, did not categorically exempt roadside ditches from federal jurisdiction. Instead, the EPA set forth a myriad of qualifications for a ditch to be exempt from permitting requirements. Such a piecemeal approach, ARTBA noted when the rule was released in May 2015, creates confusion and delays. The case is pending.
Select Past Litigation Victories
Virginia P3 Lawsuit
- ARTBA mounted a vigorous defense in support of Virginia’s public-private partnership (P3) enabling legislation. In a July 19, 2013, brief submitted to the Virginia Supreme Court in the case of
Elizabeth River Crossings OPCO, LLC, and Virginia Department of Transportation (VDOT) v. Danny Meeks,
- ARTBA urged the court to overturn a prior ruling holding Virginia’s P3 law unconstitutional because it gave VDOT the authority to collect tolls on a tunnel expansion project in southeastern Virginia.
ARTBA said if the ruling was allowed to stand it could endanger current P3 projects in Virginia and put existing projects relying on tolls at risk. ARTBA noted allowing Virginia’s law to be struck down could foster challenges to similarly structured P3 laws in other states. On Oct. 31, 2013, the Supreme Court of Virginia issued a decision siding with ARTBA and overturning the lower court’s decision.
EPA Clean Water Act Point Source Lawsuit
ARTBA, as part of a coalition of 15 industry trade associations filed a “friend of the court” brief with the U.S. Court of Appeals for the Ninth Circuit Oct. 13, 2011, in the case of Ecological Rights Foundation (ERF) v. Pacific Gas and Electric Co and Pacific Bell Telephone Co.
ERF argued the companies must obtain federal Clean Water Act (CWA) and solid waste disposal permits in order to use wood utility poles treated with a federally registered preservative. Though the case involved wood utility poles, it had broad implications for any building or construction (including transportation) materials that could release chemicals into the environment during their intended use. The victory was an important one because it prevented the definition of what is considered a “point source” under the CWA from being expanded considerably. This, in turn, would have led to increased and unnecessary regulatory requirements and delays for transportation construction projects from the U.S. Environmental Protection Agency (EPA).
EPA Wetlands Jurisdiction Supreme Court Lawsuit
The U.S. Supreme Court March 21, 2012, unanimously agreed with ARTBA and its allies, and suspended the U.S. Environmental Protection Agency’s (EPA’s) seemingly automatic presumption of the need for a wetlands permit on all needed infrastructure and residential improvements.
ARTBA, the only transportation construction association involved in Sackett v. U.S. EPA, joined with 11 other industry associations in filing a brief, urging the Court to correct a fundamental problem with the Clean Water Act’s wetlands approval process, forcing parties to secure a permit in order to determine whether or not the permit was actually required in the first place. As such, projects are compelled to obtain permits they might not actually need—adding delay and cost. The ruling forced EPA to make substantial changes to its permitting process and help interject more certainty for current and future transportation projects.
Clean Water Act Navigability Supreme Court Lawsuit
In PPL Montana, LLC v. Montana, the U.S. Supreme Court February 22, 2012, unanimously declined to expand the definition of what is considered “navigable” under federal law. The ruling removed an obstruction that could have needlessly delayed transportation improvements.
ARTBA, the only transportation construction association involved in the case, joined with eight other industry associations in filing a brief, urging the Court to overturn a lower court holding that the entire span of three rivers in Montana was “navigable” because certain remote sections are used for recreational purposes.
For purposes of transportation development, once something is considered “navigable” it is under federal control, and subject to the permitting authority of the U.S. Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps). An expanded definition of “navigability” could have resulted in a scenario where the EPA and Corps would have the option of exerting jurisdiction over roadside ditches, potentially adding years to already expansive review and approval process for transportation infrastructure projects that are needed for increased mobility and improved safety.
ARTBA is the only organization in the United States that exclusively focuses legal activities on helping ensure that approved state, regional and local transportation plans and projects move forward expeditiously.
It monitors and becomes involved in environmental and business issues that have the potential to impact the planning, design and/or construction of transportation infrastructure projects.
ARTBA recognizes successful legal advocacy and education must be implemented in a variety of ways. Its effectiveness on behalf of the transportation design and construction industry derives from a comprehensive, five-part program:
- First, when appropriate, ARTBA initiates litigation as a party plaintiff, taking on difficult cases that others might be reluctant to file or that no single organization or business could fight alone, head-to-head against government agencies and/or well-funded project opponents.
- Second, ARTBA issues “amicus curiae” briefs to present compelling legal arguments and policy perspectives that often surpass the argumentation that lawyers for the involved parties are able to provide. ARTBA “friend-of-the-court” brief serves as a valuable tool in persuading courts about the integrity of the transportation planning and approval process and the resulting safety, mobility and economic benefits that come from highway and bridge improvement projects.
- Third, ARTBA files detailed issue briefs and public comments with federal and state regulatory agencies on environmental and business-related issues that might adversely impact transportation development. ARTBA ensures that a reasoned voice is heard on behalf of transportation development proponents.
- Fourth, ARTBA features a media outreach program to ensure that the views of transportation advocates are accurately portrayed in the general, business and construction media.
- Fifth, ARTBA conducts seminars and produces reports and publications to keep its members, the legal community and the media informed of litigation and regulatory developments that impact transportation development in the United States.
Support ARTBA’s Legal Advocacy Efforts
ARTBA relies on the financial support from transportation design and construction industry firms, industry executives, corporations, civic and business groups, chambers of commerce, associations and any other entities that support transportation development. Contact Nick Goldstein for more information on how to make a donation.