BBB Suit Also Potential Winner

On January 25^th the U.S Department of Transportation, Federal Transit Administration and others filed their final response to the Building a Better Bellevue’s suit action concerning alleged environmental violations.   Like the Freeman v WSDOT/ST (See 1/25/13 post), this seems like an easy case to win.

For example, the below paragraph from page 2 of 14:

As applied to this case, where the planning efforts of state and local transportation officials have come to focus on the problem of extending the light rail system to serve a particular corridor, it makes little sense in an environmental analysis to study the environmental impacts of the bus-based options which plaintiffs say federal defendants should have also evaluated.

In essence the defendants are saying there was no need to evaluate “bus options” if Sound Transits “focus” is on the problem of extending light rail”.   Even ST didn’t believe that since they spent 30 years evaluating various cross-lake configurations to select the “no build” options in the DEIS and FEIS  documents.

The fact ST never seriously considered the BRT (i.e. two-way, bus-only service on center roadway) “bus option” with its far greater capacity and accessibility at far less cost shows a lack of competence.  (See 12/7/12 post for details)  ST confiscation of the center roadway for light rail will increase cross-lake congestion not decrease it.  (See 8/08/12 Post)

The defendants’ response concerning the “tunnel alternative” was to admit ST didn’t consider that option.

The notion of tunneling was raised only during scoping and rejected at that nascent stage in the process. It was never pursued thereafter in any serious fashion by any party.

However, it’s significant that the “Tunnel Alternative” was the only Segment 5 configuration that didn’t violate federal environmental law by intruding on the Mercer Slough Park when it was rejected.  It wasn’t until August 2005 that the regulation was changed from precluding such actions unless there were “no feasible and prudent alternatives to the use of land” to "such actions result in a de minimis impact”.   Its not clear whether the court can disagree with the defendants apparent decision the Mercer Slough Park impairment or the devastation to the plaintiffs’ neighborhood is de minimis .

The defendants also make a major point of the failure of the plaintiffs to pursue the tunnel alternative earlier.  For example from Page 5 of 14;

At no time did plaintiffs, or any other party, comment that a tunnel alternative in Segment B was a feasible and reasonable alternative for the South Bellevue segment that should have been evaluated in the FEIS.  Therefore, plaintiffs’ objection to the adequacy of the FEIS on that ground has been waived.

However during the period the Defendants claim the plaintiffs should have argued for the “Tunnel Alternative” ST was demanding Bellevue pay an additional $200 million if they wanted a tunnel rather than a street level train route through the city center.   Any attempt to request a tunnel for the much longer route in Segment B would presumably result in ST demanding substantial additional funds. 

Therefore, the plaintiffs instead attempted to convince the Bellevue City Council and ST to use the B7 alternative.  This route would have eliminated their neighborhood concerns and substantially reduced Mercer Slough impairment.  It was only after these attempts had been rejected did they initiate their current action to protect their neighborhood, as well as Mercer Slough Park, with the “tunnel alternative” or BRT on the I-90 center roadway.   

The question for the court would seem to be “Did the delay in raising the “Tunnel Alternative” issue cause ST any material harm?”  The fact ST recently committed to tunnel the far longer distance from the University Station to Northgate without requiring any surcharge would seem to negate any claims they “suffered” from the delay or that the “tunnel alternative” resulted in substantial additional costs. (Or for any of the other reasons ST originally rejected this option in the East Link  “scoping”.)

Again, to this retired engineer this seems like an easy case to win.