A legal expert is questioning federal District Judge Richard Leon’s decision to order a new environmental impact review for the light-rail Purple Line planned to connect Bethesda with New Carrollton.
Leon wrote in his opinion published Monday as part of a long-running lawsuit that the Federal Transit Administration failed to adequately study how Metro’s ridership decline and safety issues would impact ridership on the Purple Line. He ordered the agency to take a more thorough look at the issues.
The plaintiffs in the case—Town of Chevy Chase residents John Fitzgerald and Cristine Real de Azua and the trail advocacy group Friends of the Capital Crescent Trail—had charged that the FTA and Maryland Transit Administration had not adequately considered the possible impact of Metro’s issues before moving ahead with the project.
American University Washington College of Law Professor and Vice Dean Anthony Varona said Tuesday in an email to Bethesda Beat that Leon “violated the principal tenet” of the “hard look/arbitrary & capricious” review that the judge cited in his ruling by supplanting the FTA’s expert judgment with his own.
According to Varona, the law requires Leon to ensure that the Federal Transit Administration did not act in an ‘arbitrary’ or ‘capricious’ way and that the agency followed its procedural standards to ensure Metro’s issues wouldn’t significantly impact the Purple Line.
The FTA wrote in a December court filing that even if no riders transferred to the Purple Line from Metro, then the light-rail line would still meet its goal of increasing connectivity between Montgomery and Prince George’s counties with ridership expected to number more than 50,000 on weekdays.
“In this case, it is crystal clear that the Federal Transit Administration did all that it was required to do,” Varona said. “It looked at all of the evidence thoroughly, it complied with applicable procedural requirements, it applied the relevant law, and it took a ‘hard look’ at the evidence. Its decision was a reasonable and reasoned one.”
But “despite all of that,” Leon did what the Supreme Court has warned presiding judges not to do in the Overton Park case, “namely to ‘substitute [his] judgment for that of the agency.' The agency here did its job, which is not what I can say about Judge Leon,” Varona said.
Leon did not immediately respond Tuesday to a request for comment left with his office.
Maryland's Department of Transportation Secretary Pete Rahn raised similar points as Varona in a statement about the ruling Tuesday.
"This ruling is contrary to numerous U.S. Supreme Court decisions that have found the U.S. agency responsible for administering the law determines if actions are compliant or not," Rahn said. "Judge Leon's ruling is clearly attempting to stop the Purple Line through delay and it is unfortunate a small group of plaintiffs can threaten such an important transportation project. The responsible agency, FTA, has determined the project has met the requirements of NEPA [the federal environmental review process]. It's time to end the games; stop jeopardizing hundreds of millions of Marylander's tax dollars; and start this vital project."
Leon’s ruling has the potential to further delay the start of construction on the project, which was scheduled to break ground late last year. Officials say it could take several months to more than a year to complete the environmental review, which requires public hearings. The ruling has prevented the state from securing $900 million from the federal government to help pay for construction. It’s also raised the possibility that the state will have to stop paying contractors conducting design and engineering work because it is running out of money dedicated to the project. Attorney General Brian Frosh wrote in a court filing that the state wouldn’t be able to keep paying its contractors after June 1.
Gov. Larry Hogan said cancelling the project would cost the state more than $800 million in previously spent funds, plus penalties related to terminating the deal with the private partner that the state selected to build and operate the 16.2-mile light-rail line.
On Tuesday, Montgomery County Executive Ike Leggett said he was disappointed in Leon’s ruling, but more frustrated with how long it took the judge to make the decision. Leon waited about five months after receiving the analysis from the FTA to issue a new ruling in the case.
“This is a decision in my opinion he could have made a long time ago, thereby giving us ample opportunity to appeal the decision,” Leggett, a former Howard University law professor, said shortly after a press conference in Silver Spring. “I don’t see anything in his decision he could not have done within two weeks.”
Leon wrote in a footnote in his ruling the delay was due to the large caseload he’s handling.
Leggett said the delay has the potential to significantly raise the cost of the project for the county and the state. Montgomery County agreed to contribute more than $200 million in cash and in-kind contributions to build infrastructure such as an extension of the Capital Crescent Trail and the Bethesda Metro Red Line Station South entrance.
Leon also said he plans to rule on about two dozen other environmental issues raised by the plaintiffs in the case over the next few weeks.
Leggett said the lack of a comprehensive ruling prevents the state from being able to immediately appeal his decision.
“There’s no reason we should not have had a complete decision earlier to allow us to appeal and not allow the taxpayers to eventually end up losing potentially as much money as we see going down the drain,” Leggett said.
He added, however, that he doesn’t believe the project will be cancelled.
“I think we still have a lot of time to get this thing right,” Leggett said.
Varona noted that the Court of Appeals could force Leon to rule on the other outstanding issues in the case if it grants Maryland's request for a writ of mandamus.
Meanwhile, the plaintiffs are using Leon’s decision to raise funds for the ongoing legal fight.
On Tuesday, Ajay Bhatt, president of the trail group, sent an email blast seeking money to supporters.
“We are indebted, figuratively and literally, to our attorneys who have fought valiantly and successfully for all of us,” the email says. “If you’ve donated in the past, if you weren’t sure it would be worth it, or you’re just now paying attention, we need your continued financial support.
“What does the future hold? There’s a significant amount of money at stake and Purple Line proponents will fight by every means possible.”
For its part, the state plans to press on in fighting Leon’s decision. Hogan said in a statement yesterday the state will “continue to pursue any and all legal action to ensure that the Purple Line will move forward.”