2017 | Transportation

First Amicus Brief Filed in Purple Line Appeal Amid Signs Project is Moving Forward to Construction

Opponents of light-rail line try to rally supporters

Construction workers at a May rally to support the Purple Line

Andrew Metcalf

This story was updated at 11:25 a.m. August 24.

Signs that the Purple Line is moving closer to a groundbreaking are popping up daily as the lawsuit that’s been holding it back moves through the federal Court of Appeals in Washington, D.C.

On Wednesday, the first amicus brief in support of the project was filed by the American Road & Transportation Builders Association, a group that advocates for engineering, construction and research firms in the transportation industry. It counts about 7,700 public and private sector members.

In particular, the group focuses on challenging “dubious regulation or litigation” that prevents major infrastructure projects from being built, according to its website.

Amicus curiae, or “friend of the court,” briefs are filed by parties that are not involved in a court case, but have a strong interest in it and offer advice on it.

In its brief, the group criticized U.S. District Court Judge Richard Leon’s ruling that Metro’s ridership decline and safety issues warranted a new environmental analysis of the project. The group’s attorneys wrote that allowing the ruling to stand would create a precedent that “would dim the prospects for pending and future critical transportation projects.”

Prince George’s and Montgomery counties are both expected to file amicus briefs in the case in the next week or so.

The first amicus brief was filed two days after Gov. Larry Hogan’s office announced Monday that the state was very close to signing the full funding grant agreement with the federal government for the project. That agreement would allow the state to access the $900 million the federal government has proposed for the project—including $325 million already appropriated for it.

The grant agreement is expected to be signed next week. A groundbreaking has been scheduled for Monday.

Montgomery County Council member George Leventhal posted on Facebook Wednesday evening, “Thanks to Governor Larry Hogan for inviting Montgomery County Councilmembers to the official groundbreaking of the Purple Line! Yes, I will attend.”

When asked by a Facebook user when the event will take place, Leventhal replied, “next week!” and he’ll share more information as soon as it becomes public.

A Hogan spokesman did not immediately reply to a request for comment Thursday about when the grant agreement will be signed and if a groundbreaking is scheduled.

Meanwhile, opponents of the 16.2 mile light-rail project that is planned to be built along the Georgetown Branch Trail in the Bethesda, Chevy Chase and Silver Spring areas were still holding out hope the appeals court may affirm Leon’s ruling.

Friends of the Capital Crescent Trail, the advocacy group that is one of the plaintiffs in the long-running lawsuit that was first filed in 2014, sent an email Tuesday to supporters signed by the group’s president, Ajay Bhatt. The group wrote that it “sadly” read news about the likely approval of federal funding.

Still, Bhatt encouraged opponents of the project to contact their friends and neighbors to let them know “how the Purple Line is waste of scarce revenue resources, as well as bad transportation and environmental policy.”

“The Purple Line boondoggle’s severely flawed ridership has been politically whitewashed but will continue to be scrutinized in federal court,” the email said. “Meanwhile the negative net environmental effects on our water, air quality, noise pollution and green space remain to be objectively examined.”

The American Road & Transportation Builders Association wrote in its amicus brief that Leon incorrectly applied the National Environmental Policy Act (NEPA) to call for the new environmental analysis with his own concerns about whether Purple Line ridership may fall dramatically due to Metrorail’s issues.

“At base, the district court openly queried whether Purple Line ridership justifies its cost per passenger, including to taxpayers,” attorneys for the association wrote. “This is not and cannot be grounds for a NEPA violation. Moreover, this plainly exceeds the district court’s own articulation of its limited standard of review. It is not a court’s role to second-guess the economic projections of expert agencies, the policy views of officials at the local, state and federal levels, and widespread public support in the two Maryland counties where the project is located.”

The association also claimed that allowing the decision to stand will prevent other public-private partnership (P3) projects from moving forward in the future.

Maryland signed a $5.6 billion, 36-year contract with a private team of finance and construction companies—Purple Line Transit Partners—to build, operate and maintain the Purple Line, which made it a P3 project. It’s being closely watched because it’s one of the first P3 transit projects in the country, as well as the first in Maryland, according to the association.

The association wrote that lengthy court delays for projects such as the Purple Line would inject long-term risk for governments and private companies to undertake P3 projects.

Leon’s rulings in the case since last August have delayed the planned start of construction by more than nine months. The light-rail line was originally scheduled for a winter groundbreaking last year.

“Ultimately, in Maryland and other states, the rogue application of NEPA could result in hesitancy to undertake complex, transformative transportation projects—whether through a P3 process or otherwise—when the nation’s need for these long-planned projects is urgent,” the association’s brief notes.

ARTBA Amicus Brief in Purple Line lawsuit 8-23-17 by AJ Metcalf on Scribd