The freeway’s path

The freeway’s path. (Map courtesy ADOT)

As construction continues on the West Valley end of the South Mountain Freeway, a legal battle is grinding on in San Francisco that could stop or dramatically delay the most expensive highway project in state history.

That battle, unfolding in thousands of pages of legal arguments and reports, will be decided at some undetermined point by the U.S. District Court of Appeals for the Ninth Circuit.

At issue is U.S. District Judge Diane Humetewa’s July 2016 ruling that allowed the Federal Highway Administration and Arizona Department of Transportation to begin construction of a 22-mile bypass for I-10 traffic around the heavily congested Broadway Curve and downtown Phoenix to the Chandler interchange.

The Gila River Indian Community and Protect Arizona’s Resources and Children hope to stop it dead in its tracks.

Joined by other environmental organizations and a consortium of 21 Southwest Native American tribes, the Gila Community and PARC have asked the appellate court to overturn Humetewa’s decision and force highway planners back to the drawing board.

Though the appellate court rejected a request early this year to halt construction until the appeal is resolved, PARC on August 2 again asked that it stop ADOT from blasting large rock formations near homes in a part of the Ahwatukee district of Phoenix and pouring concrete for two bridge spans. It is not known when, or even if, the court will rule on that request.

Connect 202 Partners, a consortium of five contractors that is designing and building the $1.7 billion freeway, says it must conduct the blasting several times a week for as long as a year.

That will be a prelude to even more significant blasting that likely will occur next summer as crews cut a 200-foot-wide swatch across three South Mountain peaks.

The clash between opponents and proponents of the freeway, which has been discussed and planned for more than three decades, pits traffic engineers’ efforts to bring some relief to West Valley residents and workers against environmental and cultural concerns.

ADOT has asserted that the freeway will provide long-sought relief to people coming from and going to the West Valley, particularly residents who work in Phoenix. Besides that, most Phoenix officials say the freeway will stimulate economic development in the west.

“An injunction is not in the public interest because it would delay the mobility, environmental, health, safety, and employment benefits of the project,” ADOT said in successfully fighting the first injunction request.

Calling it one of the “largest and most complex transportation projects in the United States,” ADOT argued that work must proceed unstopped so that C202P can meet its target completion date of late 2019.

“A suspension of design and construction for approximately 11 months would increase the cost of the project to the point that ADOT would likely terminate all contracts,” ADOT warned earlier this year, adding that termination alone would “result in damages to the public ranging from $91.2 million to $131.7 million.”

Opponents’ arguments have focused on the way ADOT conducted environmental impact studies over the last 15 years.

They argue it relied on false assumptions, outdated population projections and faulty methodology when it came to assessing the impact of the new freeway’s traffic on the health of Ahwatukee and Gila Community residents, particularly children attending the 17 circles within a half-mile radius of the freeway’s eastern segment.

The freeway will form a border between Ahwatukee to the north and the Gila Community to the south, spoiling residents’ desert views with sound walls between 16 and 24 feet high running along virtually the entire length of the so-called Pecos segment.

Noting that Native Americans consider South Mountain a sacred site, the Gila Community has accused planners of ignoring federal laws protecting sites that indigenous people consider sacred or culturally significant.

In August of last year, a small contingent of Gila Community residents appeared before the Ahwatukee Foothills Village Planning Committee, disrupting a presentation on the freeway with a native dance and vows to lay down in front of bulldozers if crews begin tearing away at South Mountain.

Attorney Howard Shanker, who represents PARC – a 10-year-old organization of Ahwatukee homeowners, mostly near the right-of-way, who oppose the freeway – has ridiculed the government agencies’ claims about the freeway’s impact on traffic.

He asserts that ADOT did not give sufficient consideration to a so-called “no-action alternative,” in which the I-10 traffic woes would be dealt with other than through a freeway.

“Despite the expenditure of about $2 billion to $3 billion to build the South Mountain Freeway and despite the displacement of many residences and business establishments, there will be capacity deficiencies at levels comparable to the no action alternative on freeways and arterials throughout the metropolitan area and on the South Mountain Freeway itself,” he said.

Shanker also noted that ADOT and the FHWA studied air quality within the 150-square-mile area surrounding the entire freeway path instead of that segment in Ahwatukee where the schools are located.

Such a wide study area “is not the same as a meaningful analysis of” the impact on children “that live and go to school near the freeway.”

Moreover, Shanker argues, the planning agencies “did not even have the final 15 percent level design for the freeway” until after the air quality analysis was completed.

That’s one of the reasons why the Environmental Protection Agency expressed concerns about the agencies’ studies, he said.

Planners “not only ignored the U.S. EPA’s, and the public’s comments, they manipulated data to their own ends and precluded the requisite public review of essential information,” he wrote.

Shanker is asking the panel to consider whether the government agencies’ actions were “arbitrary, capricious, an abuse of discretion and/or otherwise not in accordance with law” in three areas.

First, did they fail to consider a reasonable range of alternatives to the project by relying on an economic model? This argument goes to their use of population data that Shanker claims was outdated.

The second area involves the environmental studies

Shanker argues that besides their ignoring the impact of fumes from the estimated 140,000 vehicles – half of them large trucks – that will use the freeway, planners virtually dismissed transport of hazardous materials as an issue for consideration.

Even though an estimated 14,000 heavy-duty trucks are projected to use the freeway every day, Shanker says, ADOT and the FHWA contended the possibility of an accident was “too remote” to consider the possibility of a chemical spill.

The third area where Shanker alleges arbitrary, capricious and possibly illegal conduct by the planning agencies involves South Mountain Park.

While noting the Gila River Indian Community’s contention that construction would desecrate a site that Native Americans consider sacred, Shanker also argues that federal laws governing the impact of projects on parkland were violated.

He contends the planning agencies ignored their duty to consider alternative freeway paths that would “minimize harm to” the park.

“In short, defendants are building a $2 to $3 billion freeway that will have significant negative impacts on human health and the environment and that requires destruction of protected park land that is sacred to the tribes in the region,” Shanker wrote.

For now, construction is proceeding rapidly on the freeway, undeterred by the possibility of a court-ordered shutdown.

While the losing side in the case before the Ninth Circuit likely would try to appeal that ruling to the U.S. Supreme Court, there is little assurance the high court will take it, since it usually accepts only about 150 of the 7,000 cases brought to the justices.