ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Thursday, October 3, 1996 TAG: 9610030059
SECTION: VIRGINIA PAGE: A-1 EDITION: METRO
SOURCE: MARK CLOTHIER STAFF WRITER
NOTE: Above
A lawsuit filed by three New River Valley environmental groups to slow development of the ``smart'' road was handed a setback Wednesday.
U.S. District Judge Jackson Kiser dismissed one of the environmentalists' three claims and found in the government's favor on the other two.
The decision removes one of the last potential obstacles to construction of the road, a six-mile link from Blacksburg to Interstate 81 that will serve as a laboratory for new transportation technology and has been billed as a boon to Virginia Tech and the region's economy.
In his 22-page opinion, Kiser outlined the arguments before deciding in favor of federal highway planners. The judge offered a slight rebuff: Though planners "certainly could have been more thorough in their analysis of the project's environmental impacts, plaintiffs have failed to demonstrate that defendants' actions were arbitrary and capricious."
Don Schumacher, of the New River Valley Environmental Coalition, said his group probably will appeal the decision.
"But we're glad the judge took as much time as he did to consider this thing; that's something that surprised us all," he said. "And presumably - hopefully - he took the time to do thorough research."
Ray Pethtel, Tech's chief spokesman on the project, said Wednesday he looks for a July groundbreaking on the project..
"I'm glad the judge ruled and the issue has been resolved," Pethtel said. "I think it proves that all of the proper procedures have been followed and kind of indicates that the environmental issues raised by the opponents have been addressed satisfactorily."
Advertising for construction bids for the first, two-mile, stage of the highway begins in April, said Pethtel, associate director of Tech's Center for Transportation Research. Studies on that test bed could begin by late fall 1998, he said.
The lawsuit, brought in November by the New River Valley Greens and later joined by the New River Valley Environmental Coalition and the national Sierra Club, made three claims:
*Highway planners violated the National Environmental Policy Act in several areas, including by failing to conduct a "supplemental" environmental impact statement in 1995 after the road's path was changed; by failing to adequately consider alternatives to building the highway; and by failing to prepare adequate bird, wildlife and plant surveys.
Kiser ruled that the changes to the impact study were ``so slight, especially in light of the project's magnitude, that they cannot reasonably be said to alter `significantly' the environmental impact of the project.'' He also found the government had sufficiently studied alternate routes and that its rejection of them was not arbitrary and capricious.
On the wildlife and related surveys, he found that the court's role was to show only that the government considered the environmental consequences, not to question the scientific methods used.
*Federal highway planners failed to show the smart road would not hurt low-income residents disproportionately. That requirement, included in a 1994 presidential order, took effect after the original environmental study was completed, Kiser found. Also, it still didn't apply to the 1995 addendum because the presidential order was designed for internal use by federal agencies and not as a basis for a lawsuit.
*Road planners violated the Endangered Species Act by failing to follow federal conservation recommendations to protect an endangered flower along the initial route. Kiser dismissed this claim ``with prejudice'' after noting that highway planners actually moved the smart road's route to avoid the plant, and that the plaintiffs failed to back up their claims in supporting motions.
LENGTH: Medium: 70 linesby CNB