Judge keeps 281 lawsuit alive



San Antonio, TX – February 6, 2009 – Yesterday, U.S. District Judge Fred Biery turned to common sense, “old lessons,” the wisdom of Aristotle, and even a bit of poetry in a ruling on the lawsuit filed by Aquifer Guardians in Urban Areas (AGUA) and Texans United for Reform and Freedom (TURF) against the Texas Department of Transportation (TxDOT), the Federal Highway Administration (FHWA), and the Alamo Regional Mobility Authority (ARMA) over the proposed US 281 and Loop 1604 toll roads.

Specifically, Judge Biery denied motions by FHWA, TxDOT and ARMA to dismiss the case as moot.  Instead, the Judge took an interim step that left the case closed but pending on the court’s docket and subject to further requests for relief by the parties.  At the same time, Biery denied motions by the Plaintiffs to order the Defendants to release study documents on the proposed toll roads that were previously withheld.

While stopping short of ordering the Defendants to study the proposed, intersecting US 281 and Loop 1604 projects together in one comprehensive environmental study, Judge Biery wrote that while “the Court has no highway engineering expertise, it seems commonsensical that two intersecting parts costing billions would be connected to create an Aristotelian whole.”

In response to the lawsuit, FHWA had previously reversed course on US 281, revoking its approval and ordering TxDOT to prepare a full Environmental Impact Statement on the proposed seven mile long toll road.  The project would extend from Loop 1604 north to the Comal County line.  TxDOT had also recommended that the proposed 36-mile long Loop 1604 toll road, which similarly traverses the recharge zone for the Edwards Aquifer, be approved without an EIS.  But in recent months ARMA has stepped forward to begin the process of preparing preparing EISs on both projects.  All of the Defendants, however, have resisted Plaintiffs demands that the two projects be studied together, in a single study on what ARMA has called its “starter toll system.”

The court makes clear that it will watch the next moves from FHWA and TxDOT and that it expects “transparency and public participation” in the decision-making process.

Judge Biery’s six page order writes of “Uncle Fred and Aunt Della Grantham . . . [who] knew nothing about computers or air conditioning or environmental impact statements, but they were wise enough not to build the privy close to their water supply.”

In leaving the case pending, Judge Biery wrote that while the projects remain “at a red light, the issues of water quality and quantity and traffic gridlock will not disappear into the legal smog. . . .  What is known is that we, like the dinosaurs and the cockroaches, will either adapt, move or die.”  He concluded with this adaptation of John Donne’s meditation of 1624 (which, in turn, inspired Hemingway’s novel, “For Whom the Bell Tolls.”

“No San Antonian is an island, entire of itself;
Each is a piece of South Texas, a part of the Edwards escarpment.
If our refuse washes into the aquifer,
all are the less.

And species’ death diminishes the whole,
Because we are all involved in life,
and therefore never send to ask for whom the road tolls;
it tolls for thee.”

Representatives for the Plaintiffs deferred comment for another day, preferring that the people of San Antonio consider the words of the court.

To read the Court’s opinion, go here.