By Paul Maryniak

What could be the last fight to stop construction of the South Mountain Freeway is being waged on paper in San Francisco.

There, the U.S. Court of Appeals for the Ninth Circuit has started receiving briefs from both sides in the battled over the 22-mile freeway.

At stake for Gilbert motorists and those in other communities is a highway, 30 years in the planning, that state experts say will cut as much as a half hour of travel time from the East Valley to West Valley communities.

So far, the Gila River Indian Community and Protect Arizona’s Resources and Children haven’t had much luck with judges in the effort to stop the Arizona Department of Transportation and Federal Highway Administration from building a highway that has been on the books for more than three decades.

And if the Ninth Circuit rejects opponents’ arguments, their only recourse is to hope they can get a re-hearing or get the case on the U.S. Supreme Court docket. Neither is guaranteed.

The South Mountain Freeway will provide a detour around downtown traffic for I-10 motorists.
The South Mountain Freeway will provide a detour around downtown traffic for I-10 motorists.

The freeway would connect West Phoenix and the Loop 202 Santan Freeway-I-10 interchange in Chandler to provide a bypass around the heavily congested segment of I-10 that runs through Downtown Phoenix.

The $1.77-billion highway project is the most expensive in Arizona history and also has been billed by ADOT as a potentially huge stimulus to economic development along its path.

But in the eyes of opponents, the freeway desecrates South Mountain, which Native Americans consider a sacred site, and poses significant health risks, especially to children attending 17 schools within a half-mile of the right-of-way.

Opponents in November lost their bid to stop its construction temporarily while a Ninth Circuit panel considers their appeal of U.S. District Judge Diane Humetewa’s August decision that turned away all arguments they had made to stop the freeway.

PARC sought the temporary injunction, contending that current work on the freeway, if allowed to continue, would eliminate some aspects of the surrounding environment that they are trying to protect.

The Gila Community did not join the injunction request, which PARC attorney Howard Shanker thinks might have hurt his client’s bid for a temporary work stoppage.

Shanker said that as disappointing as the panel’s ruling is, “we have not lost the war.”

He noted that the appeals court will consider the case without paying any attention to Humetewa’s ruling.

“This did not mean that we have lost our case,” he added. “I understand that this is a frustrating and disheartening process. “We are, however, still very much in the game.”

PARC President Pat Lawlis wrote on the group’s Facebook page, “I admit I am depressed about this.”

She added that she was somewhat heartened by the fact that when the appellate court hears oral arguments, probably in the spring, “it will be heard and ruled on before ADOT can do any damage to South Mountain.”

In a release, ADOT said the Ninth Circuit ruling “keeps the Arizona Department of Transportation project on track to begin construction of the mainline freeway early next year.”

“It’s the fourth time courts have rejected attempts to halt construction of this long-planned link between the East Valley and West Valley,” it continued, quoting ADOT director John Halikowski as saying:

“With the support of the Federal Highway Administration, the Maricopa Association of Governments and the city of Phoenix, we are moving forward with a critically needed freeway that will make this region a better place to live and do business. This long-planned alternative to an increasingly strained Interstate 10 through downtown Phoenix will better position this region for continued growth in its population and its economy.”

ADOT and the federal government objected to a temporary halt, claiming PARC and the Gila Community will lose the appeal and that meanwhile taxpayers would be saddled with millions of dollars in extra costs.

In his request for a temporary injunction, Shanker zeroed in on ADOT’s handling of environmental studies and its refusal to consider either alternative routes or a “no-build alternative.”

“There are approximately 17 schools within one-half mile of the selected right-of-way, resulting in significantly increased health risks to children attending those schools (over 15,000 children on a daily basis),” he said.

“This project will have a disparate impact on children without even accounting for the parks, day-care providers, and children who live near the right-of-way and who attend these schools,” Shanker wrote.

“Many studies have now shown that people who live, work, or attend school near major roads have an increased incidence and severity of health problems that may be related to air pollution from roadway traffic,” he added, stating that “near-roadway traffic emissions may not only trigger and exacerbate asthma symptoms, but also contribute to the development of asthma in children.

“As such, the construction of a new eight-lane freeway with diesel truck volumes of up to 17,000 per day in an area with a large population of children constitutes a need to analyze, disclose and mitigate impacts to children.”

ADOT estimates that 125,000 to 140,000 vehicles would use the freeway daily. Of these, nearly half would be trucks, including 14,000 to 17,000 heavy-duty trucks.

Shanker noted that the U.S. Environmental Agency had expressed misgivings about ADOT’s analysis. It was concern not only about the potential harm posed by a 460 percent increase in traffic in the Pecos Road corridor but also with ADOT’s conclusions of the minimal risk of accidents involving vehicles carrying hazardous chemicals.

Shanker also said that in coming up with a justification for the specific right-of-way selected for the freeway, ADOT initially used 2005 Census data to project the region’s population growth even though 2010 census data showed a 20-percent decrease in those projections.

He also said ADOT refused to consider other routes because they would not complete the freeway loop system around Maricopa County.

He quoted from an EPA letter expressing concern about such an approach.

“We have continuing concerns regarding the analysis and discussion provided in the Final Environmental Impact Study regarding possible near-roadway health impacts along the proposed new freeway corridor, including impacts to children,” the EPA said.

“Additionally, we have continuing concerns with the analysis of the No Action Alternative, as well as impacts to both aquatic resources and wildlife connectivity,” it added.

Assistant U.S. Attorney John Cruden countered in a lengthy brief that “PARC is not likely to succeed in overturning” Humetewa’s ruling.

“The balance of the equities and public interest strongly tip against issuing an injunction, which would increase costs by $68,700,000 of taxpayer money per year, and delay a project necessary to address existing traffic conditions,” he added.

“As the district court found, the agencies reasonably considered the potential impacts of the project on children’s health, including air quality and noise impacts,” Cruden said, adding:

“The agencies specifically considered and addressed the potential air quality impacts of the project, including the potential for impacts on children, in its National Environmental Protection Act analysis and its conformity analysis under the Clean Air Act.”

Cruden also contended that the freeway “is not located closer to schools than it is to other nearby receptors” and that “because particulate matter levels decrease rapidly with distance from the freeway,” ambient air quality standards would be met at all the schools.

He acknowledged also said that any disagreement between highway planners and the EPA “highlights the rigorous consideration of the project” rather than a failure to meet federal regulations requiring a thorough air quality analysis.

“The proposed project would relieve congestion and would save people approximately 9.2 million hours of travel time a year,” Cruden said of the freeway, adding:

“The project also benefits low income and minority communities by reducing bus travel time and improving access to school facilities and community centers. And voters have twice voted for a sales tax to fund transportation infrastructure projects such as the project.”

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