In a letter dated October 19, 2018, Secretary Rahn resorts to misleading characterizations of federal law and dodging responsibility rather than guarantee local officials that Governor Hogan’s plans for I-270 and I-495 won’t require destruction of nearby homes and property.
The letter, a response to a written request from Rockville Mayor and City Council for the Governor to “commit his intentions [that no homes will be torn down] in writing,” does little to address concerns of residents near the highways.
While the Governor and Secretary have clearly become sensitized to concerns about the project’s potential to affect adjacent properties, and while they have both now made verbal promises that no homes will be affected by the project, Rahn’s letter falls short of making any binding commitments to ensure that outcome.
Secretary Rahn’s letter, while striving to sound as though the possibility of taking homes has been ruled out, does not actually contain any binding commitments to make that a certainty. In fact, the letter shrinks back from providing that guarantee. It is also disturbing that letter offers misleading characterizations of the requirements of the National Environmental Policy Act in order to justify continuing to examine options which could result in taking homes and property, and to provide an excuse for why the State declines to remove those options from consideration.
Here are DontWiden270.org’s chief concerns with Secretary Rahn’s letter:
1. Secretary Rahn variously describes MDOT’s intention to avoid affecting adjacent properties as “our approach” and “strategic objectives”; and describes that it is “looking to implement” changes within the existing right-of-way. Yet approaches, objectives and intended implementations change with major projects such as these and the use of such terms in a letter can hardly be construed as a binding commitment.
It is also worth pointing out that MDOT has been saying for some time that minimizing impacts to adjoining properties is a goal – for example, in this RFP for technical support on the project – but has not taken the steps available to ensure no homes are taken, such as ruling the option out in materials for bidders.
2. Secretary Rahn’s stated intention to keep the project within the existing rights-of-way and treat sound barriers as immovable boundaries for the project is encouraging. But it isn’t really clear that MDOT is acting in a manner consistent with Secretary Rahn’s assurances. In a presentation to potential bidders on December 13th, 2017, MDOT poses the question “Right-of-way acquisition – retained by MDOT or transferred? Who assumes cost risk?” Why would MDOT need to think about this if there was no way the project would extend beyond existing rights of way?
3. Secretary Rahn’s letter cites the National Environmental Policy Action (NEPA) to imply first that federal law requires MDOT to study alternatives which could require taking homes and property, and second that the law prohibits MDOT from removing options from consideration before the process is complete.
Both implications are based on a serious misrepresentation of what NEPA actually requires. First, according to the Federal Highway Administration (FWHA), the NEPA decision-making process on highway projects does not require looking at “all” options as Secretary Rahn suggests, but a range of alternatives to the proposed action the state has put forward. To quote FWHA, the first two principal elements required are:
“Assessment of the social, economic, and environmental impacts of a proposed action or project” (such as a proposal to add two to four lanes to a highway); and
“Analysis of a range of reasonable alternatives to the proposed project, based on the applicants defined purpose and need for the project.”
Under NEPA, the State must assess the impacts of the proposed project and a range of reasonable alternatives to it. However, NEPA does not require the State to assess the impacts of any specific options the State is not considering (other than the “no build” option in which the state does nothing.) The only reason NEPA requires the State to assess the impacts of widening the highways by two or four lanes is because those are projects the State is considering. If the State were not considering them, it would not be obligated to assess their impacts.
Furthermore, the Secretary's claim that "We cannot commit to any alternative until we fully and objectively evaluate the reasonable alternatives as it would violate federal NEPA requirements" appears to imply the State cannot provide the guarantee that the City of Rockville and residents are seeking, lest it violate federal law. This is rubbish. While it is true that the State cannot leapfrog the process and commit to a specific plan without completing the process, there is nothing under NEPA to prevent it from removing some options from consideration (other than the "no-build" option.)
In short, NEPA does not prevent the State from committing to reject any proposals which would involve taking homes or property.
It is somewhat disheartening that the Secretary of Transportation would attempt to hide behind a mischaracterization of a federal law in order to justify refusing to guarantee the I-270 and I-495 project will not require taking of homes, businesses or property, or that MDOT’s understanding of the law is so poor that it doesn’t realize what the law requires and allows. But it confirms our conviction that a binding commitment is still necessary in order to put Rockville residents’ minds at ease on the question of widening the highway.
The sum of these concerns boils down to one simple question: if the Governor and Secretary are so confident that the project will not affect any homes, business or property, why do they continue to refuse to commit to it? The Governor could issue a binding directive to MDOT requiring it to consider only those proposals which have no impact on surround properties. Given that this P3 project is under the authority of the Governor, it is within his purview to simply rule out the possibility of property impacts.
Please join us in urging Governor Hogan to back up his promises by putting them in writing. Sign the petition here.