Schnader Harrison, Outstanding Civil Rights Attorneys in Washington, DC Claims Important Civil Rights Victory for Arlington Civil Rights Activist Chris Zimmerman

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Schnader Achieves Important Victory for the County of Arlington, Va. in a Dispute over a Proposed Highway Project 05/20/2010 John B. Britton and Neil T. Proto prevailed in the first round of arguments related to a lawsuit filed on behalf of Arlington County, Virginia (the County) against the state and federal governments regarding a proposed High Occupancy Toll (HOT) lanes project proposed for the I-395/I-95 corridor in northern Virginia. On April 15, 2010 the United States District Court for the District of Columbia rejected in part the motion to dismiss brought by the state defendants and upheld the right of the Arlington County Board to move forward with all of its claims intact. The lawsuit – filed on August 19, 2009 against the United States Department of Transportation (USDOT), the Federal Highway Administration (FHWA), the Virginia Department of Transportation (VDOT), and their representatives – alleges that, in allowing the HOT lanes project to move forward, defendants violated the Constitutional rights of minority residents, particularly in the County, due to the project’s disparate environmental and public health impacts. The defendants also failed to conduct comprehensive environmental and public health analyses and public review as required by the National Environmental Policy Act (NEPA), instead relying on an improperly issued “Categorical Exclusion” classification. Although the project’s likely impacts warrant a full environmental and public health review, the defendants improperly segmented the project and used traffic and air quality modeling that was deficient and inconsistent with standard practices to reach the unsupportable conclusion that the project would not significantly impact the human environment. Further, the County believes that VDOT exaggerated the benefits of the project and underestimated the adverse impacts of the project, both regionally and in Arlington particularly. Beyond traffic, environmental and public health impacts, concerns have been raised about degraded emergency response capacity, local and regional air quality impacts, enforcement, pedestrian/bicycle conflicts, and local funding needs to mitigate the impacts on local streets and maintain the current level of transit service. With respect to the discrimination claims -- violations under Title VI of the Civil Rights Act and the Virginia Constitution – the County asserts that the proposed HOT lanes and their interchanges would have a disproportionately disparate impact on minority and low-income communities adjacent to the proposed route and disproportionately benefit exurban and white single-occupancy-vehicle drivers. If constructed as proposed, the project will worsen air quality in the region, particularly along the project corridor and in those areas where congestion and traffic queues will increase, primarily in Arlington at the I-395 interchanges and surrounding local roadways and intersections. Combining the anti-discrimination provisions of the Civil Rights Act and NEPA’s environmental and socio-economic analysis requirements to support the claim of intentional discriminatory behavior by the government agencies and their representatives is an innovative and unusual legal strategy. Yet, it accurately represents the full spectrum of damages that has already and could possibly result if the HOT lanes project were to move forward under the Categorical Exclusion classification. The County of Arlington seeks to have the Categorical Exclusion classification withdrawn and the initiation of a proper and comprehensive analysis and public review as required by law. The District Court’s April 15 order is a significant step forward in ensuring the proper review and analysis of the proposed project’s environmental, public health and community impacts will be completed. Additionally, the Court denied VDOT’s motion to dismiss the former Secretary, Pierce Homer, from the case; with respect to the civil rights and constitutional claims, the former secretary remains in the case in his personal capacity. The Court also allowed the County lawsuit to continue with respect to the other environmental claims against the agencies and the current heads of the agencies in their official capacities.

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