Purple Line opponents are heading back to federal Judge Richard Leon’s courtroom.
The plaintiffs in the long-running Purple Line lawsuit filed a new lawsuit Tuesday based on the federal Highway Act that argues the state and federal government shouldn’t be allowed to spend money on building the Purple Line because they haven’t properly funded Metro as required by the law.
The plaintiffs had previously brought up the issue in Leon’s district court as part of the original 2014 lawsuit that’s now in the U.S. Court of Appeals, but at that time the state hadn’t signed a full funding grant agreement with the federal government.
Now that it has been signed, the plaintiffs believe they can raise the issue again, John Fitzgerald, an attorney and plaintiff in the case, told Bethesda Beat on Tuesday afternoon. He said he believes the grant agreement is illegal because the requirements of the Highway Act haven’t been met.
According to the law, a U.S. transportation secretary must provide evidence that a government has the resources to maintain its existing transportation network before spending on a new project, Fitzgerald said.
“We contend the record shows quite clearly that [the Washington Metropolitan Area Transit Authority] itself doesn’t have anywhere near the resources it needs to maintain, operate or recapitalize that system,” Fitzgerald said.
He added that the plaintiffs have requested the grant agreement, but have not obtained a copy.
Other plaintiffs in the lawsuit include Town of Chevy Chase resident Christine Real de Azua and the trail group Friends of the Capital Crescent Trail.
The new lawsuit brings the Purple Line project back before Leon, who previously revoked the project’s federal approval in August 2016 and ruled earlier this year that under the National Environmental Policy Act a new environmental analysis was needed because of Metro’s ridership decline and safety issues.
The state and Federal Transit Administration appealed Leon’s rulings to the U.S. Court of Appeals in Washington, D.C. In July, the appeals court reinstated the project’s federal approval, which enabled the $900 million federal grant agreement to be signed and construction to commence last week. The appeals court is now considering whether to require the environmental analysis. The plaintiffs’ brief in the appeals case is scheduled to be filed Friday.
On Tuesday, crews began closing access to the Georgetown Branch Trail, which runs from Bethesda to Silver Spring, to prepare for construction. The 16.2-mile light-rail line will be built along the trail as part of its route from Bethesda to New Carrollton.
Leon has scheduled a hearing at 2:30 p.m. Wednesday in his D.C. courtroom on the plaintiffs’ request for a temporary restraining order to prevent any irreversible construction from taking place, Fitzgerald said. The plaintiffs’ motion notes it’s “almost farcical” for the state and federal government to claim that local resources are in place to maintain and operate the existing Metro system.
The motion notes the lack of agreement among officials in Maryland, D.C. and Virginia on how to provide the additional $500 million in annual funding that Metro has requested to rebuild and maintain the system. It points to a Washington Post article that said Maryland Gov. Larry Hogan told D.C. Mayor Muriel Bowser and Virginia Gov. Terry McAuliffe that Maryland could not afford to give Metro more money and he would not ask the state’s legislature or counties to raise taxes to do so.
Hogan previously accused Leon of having a conflict of interest in the case and attempted to link the judge to opposition groups in Chevy Chase. Leon is a resident of Chevy Chase, although he does not live in the Town of Chevy Chase, which had previously opposed the light-rail line for many years before backing off that stance in 2015.
Local leaders and an American University professor have previously criticized Leon's rulings in the case for substituting his judgment for that of a federal agency.
The new legal challenge arises as Purple Line Transit Constructors, the construction companies that are part of Purple Line Transit Partners, begins clearing the Georgetown Branch Trail to start construction.
Chris Doherty, a spokesman for Purple Line Transit Partners, said Tuesday that crews are installing sediment and erosion control fencing along the trail. Then crews will begin clearing underbrush, such as small shrubs and bamboo, along the route later this week. In about two weeks, tree-cutting crews will begin removing trees along the trail, Doherty said.
He said the entire trail will remained closed during this process.
“It’s now an active work zone,” Doherty said. “The safety of the public and the safety of workers is paramount. If you travel across the trail, you’re comingling with an active construction site.”
When asked if he thought the new lawsuit may impact the tree removal process, Doherty responded Purple Line Transit Partners is not a party to the case and that he had not seen the court filings.