HOT Lanes Lawsuit: Highway Robbery?


Alexandrias city government was confronted with an awkward predicament in August when Arlington decided to file a lawsuit against the federal government and the Commonwealth of Virginia over the High Occupancy Toll Lanes project that has concerned regional residents and municipal governments from its inception: Should Alexandria band with its neighbor in the litigation or not?

City officials said Tuesday at a work session that there is no viable reason to join the suit at least not right now. The city is still awaiting information from parties involved that will help flesh out the suit and determine a course of action.

In the meantime, Alexandria will let Arlington do the dirty work.

Its sort of like a game theory situation, City Councilman Rob Krupicka said. The best game theory situation for us is to stay neutral right now because that keeps our options and leverage at the highest point.

One of the reasons for neutrality and lack of haste is that both jurisdictions have similar stakes in the matter, so expending city resources on a lawsuit already filed would be a waste of time and money.

City Attorney Jim Banks predicted that Alexandrias primary role in the matter provides the city with the leverage to join the lawsuit after it is fleshed out further. Consulting with the city is in the state and federal governments best interest as the suit proceeds because, if they did not, Alexandria would be justified to file a lawsuit of its own after Arlingtons is complete and the outcome is certain.

If the federal government and the Commonwealth were truly committed to proceeding with this project, they would want to make sure that all potential litigants were satisfied to some extent, Banks said. That would clearly include Alexandria as well as Arlington.

In the final analysis, youre question to me would probably be, Is there a compelling reason from a procedural legal standpoint for us to get involved at this point? Banks said addressing City Council members. And my answer to that question would be that there is no pressing legal justification for our being involved right now.

Arlington originally filed suit against the Federal Highway Administration and the Virginia Department of Transportation for rushing into the project without a necessary precautionary study, in Arlingtons view. The Bush administration allowed the project to move forward with a categorical exclusion that negated the need for an environmental impact study based on HOT lanes perceived importance to the regions traffic congestion.

The HOT lanes plan would add free express lanes for buses, motorcycles and carpools with at least three riders to parts of Shirley Memorial Highway (Interstate 395) and the Beltway, while other vehicles could opt to pay a toll for the decongested lanes.

Parts of the lawsuit seemed moot, though, as VDOT and private contractor Fluor-Transurban could not come up with the funds for some of the construction. Both developments nonetheless pleased city residents living in Parkfairfax near the Shirlington rotary, a potential reservoir of congestion under the plan. Those residents took matters into their own hands and provided a detailed study of their own that opposed the project.

The HOT lanes project also conflicts with both Alexandria and Arlingtons stated goals of moving more people not more cars, officials said, especially with the Department of Defense development expected to bring 6,400 employees to the citys West End, once complete.

Residents and city officials expressed ample concern with the project on Tuesday, compared to assertions from VDOT indicating a decrease in neighborhood traffic with vehicles utilizing express lanes rather than city streets.

VDOT studies in the area neglected to account for major intersections that HOT lanes could affect, though, in addition to the categorical exclusion and construction noises that could dampen quality of life, according to Rich Baier, director of Transportation and Environmental Services. The city is still awaiting such information despite a specific request to VDOT as much as a year ago, he said.

Their analysis doesnt go far enough, Baier said. We dont really have much analytical data to support or to defend ourselves. Wed have to manufacture a lot of group studies, a lot of data.
The city government simply has not seen other studies completed.

Because of the private-public nature of this [project], some of the traffic data is considered proprietary, Baier said. So even if the studies have been done, they wont release them because they are considered proprietary.

As a possible alternative to joining the lawsuit, Alexandria Delegate David Englin will carry to Richmond a proposal that would initiate state legislation requiring VDOT to perform the missing studies normally required for such a project, according to Legislative Director Bernie Caton.

But the prospect of state action seems just as muddled as the larger picture. The election of a new governor is imminent, and with him comes a new administration with new players, perhaps a new secretary of transportation, for instance, yielding more uncertainty.

I really dont know what to expect, Caton said, echoing the essence of the controversy.