April 19, 2014

State, feds appeal Circ Highway ruling

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Officials say environmental study will continue

By Greg Elias
Observer staff

State and federal officials plan to appeal a court ruling that required a costly environmental study and halted construction of the Circumferential Highway in Williston.

The officials announced last week that they had filed a notice of appeal. The notice is a precursor to the appeal. The U.S. Solicitor General must first determine if the appeal can proceed before a court considers the matter.

The filing comes more than two years after U.S. District Court Judge William Sessions ruled that the 18-year-old environmental impact statement for the project was outdated. A coalition of environmental groups argued that a new study was needed because the existing document failed to account for changes in the area since the 1980s.

The updated study was originally scheduled to be completed this fall. The completion date has since been moved back to spring 2007, a delay that will add $1 million to the study’s original $6.3 million budget.

With the study nearing the finish line, the appeal seems oddly timed. The 2nd U.S. Circuit Court of Appeals in New York City is expected to take more than a year to rule on the appeal, well after the study is completed.

The appeal is not intended to stop the environmental study, said state Transportation Secretary Neale Lunderville. Instead, he said, it is aimed at settling precedents that could affect future highway projects.

“The state wants to clarify parts of Judge Sessions’ ruling, especially as it pertains to other projects around the state,” Lunderville said.

Specifically, Lunderville said, the legal action could affect how the state looks at cumulative and indirect impacts of proposed highways. But he acknowledged the ruling would probably not alter any current or planned project.

The appeal and the study are “really on parallel tracks,” Lunderville said. The study will continue while the state awaits a decision on the appeal.

The notice of appeal was filed now in order to preserve the right to further litigate the matter. Sessions’ originally ruled on the case in May 2004. Vermont transportation and Federal Highway Administration officials asked him to reconsider the decision, but Sessions did not affirm his ruling until July of this year. The state and federal governments then had 60 days to file notice of appeal.

Brian Dunkiel, a lawyer representing Vermont Smart Growth Collaborative, a coalition of groups opposed to the Circ, said he was confounded by the appeal.

“It doesn’t make any sense,” he said. “All it’s going to do is waste taxpayers’ money with continued expensive litigation. Transportation dollars are in high demand and short supply right now.”

The Circumferential Highway was first proposed more than 20 years ago as a 16-mile divided highway running from Williston to Colchester. At issue in the legal battle is the segment that would start at Interstate 89 in Williston and connect to the existing stretch of Circ at Vermont 117 in Essex.

That environmental study now underway, however, has cleared the way for alternatives in Williston. The dozens of options considered at the study’s outset have been narrowed to eight alternatives that fall into four broad categories: build the Circ Highway as originally designed; construct a boulevard-style road along the Circ route; widen Vermont 2A and/or replace traffic lights with roundabouts; or combine elements of both plans. A no-build option also remains a possibility.

The boulevard and roundabout options were proposed by the Smart Growth Collaborative.

The environmental study will culminate with one of the options being picked as the so-called “preferred alternative.”

Though he vowed the study would continue despite legal uncertainties, Lunderville left open the possibility that the appeal could affect what is actually built. But he denied the appeal is a strategy to avoid constructing anything but the Circ if the study concludes one of the alternatives makes more sense.

Dunkiel suggested that politics may have prompted the appeal, noting Gov. Jim Douglas has long supported building the Circ as originally planned. The Douglas administration has repeatedly clashed with groups in the Smart Growth Collaborative.

Lunderville said the appeal will be worth the expense if it helps the state avoid future court battles.

“It makes sense from a financial perspective to hear from the court so we don’t make the same mistake again,” Lunderville said.

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