Why It Takes So Long to Build a Bridge in America

[Duke87]

Perhaps a "the person who sues pays all costs of carrying out anything if they are found to be in error" system would mitigate that.  The first plaintiff who's on the hook for millions/billions spent on a wild goose chase would serve as an example not to sue unless there's a real issue.  I've always been a proponent of having the loser in court pay all related litigation costs as a means of attaching a penalty to frivolous lawsuits, so this really isn't that different.

The problem with this sort of setup is that it prevents parties who have a legitimate gripe from filing suits if they cannot afford to pay their opponent's costs should they lose. It may sound nice to say the Sierra Club should be on the hook for the price of their blatantly obstructionist tactics, but fair application of such a policy also means that a class action suit by a bunch of working class individuals who were hurt by a company selling them an unsafe product or polluting their property from a nearby factory or what have you would likely not move forward even though it should, simply because the plantiff cannot afford the price of losing and they are not guaranteed to win (big companies can hire some pretty good lawyers).

In terms of reforming the legal system surrounding project review, what I would say instead is that we need to apply the same policy that is applied in other types of lawsuits in the US: namely, that you cannot file suit if you are not an injured party. Current environmental review laws permit anyone and everyone to file a suit against a project if they do so on environmental grounds - even if the people filing the suit live nowhere near the project and are not in any way personally impacted by it.

So, basically... no suing the state about a project unless you live near it or can otherwise claim it harms you personally.

[cpzilliacus]

I would advocate a streamlined enviromental review process for road projects whee a certain fatality threshold has been met.  We ahould not be waiting for all kinds of lawsuits to be heard for roads where 10,15, 20 people are dying every year.

During the George W. Bush Administration, then-Maryland Gov. Bob Ehrlich (R) asked for (and got) streamlined environmental review from the federal government for Md. 200 (the InterCounty Connector) (it may have been the only "big" project to receive same).  It meant that an FEIS was done in less than four years (the previous DEIS in the 1990's took between 5 and 6 years).

Since Bush left office, I have heard no more about streamlined environmental review for any project.

Getting to your point, parallel roads in the ICC corridor had plenty of fatal and multi-fatal wrecks during the time that the study was under way, and as far as I know, there has not been one on the new road so far.

[cpzilliacus]

Perhaps a "the person who sues pays all costs of carrying out anything if they are found to be in error" system would mitigate that.  The first plaintiff who's on the hook for millions/billions spent on a wild goose chase would serve as an example not to sue unless there's a real issue.  I've always been a proponent of having the loser in court pay all related litigation costs as a means of attaching a penalty to frivolous lawsuits, so this really isn't that different.

The problem with this sort of setup is that it prevents parties who have a legitimate gripe from filing suits if they cannot afford to pay their opponent's costs should they lose. It may sound nice to say the Sierra Club should be on the hook for the price of their blatantly obstructionist tactics, but fair application of such a policy also means that a class action suit by a bunch of working class individuals who were hurt by a company selling them an unsafe product or polluting their property from a nearby factory or what have you would likely not move forward even though it should, simply because the plantiff cannot afford the price of losing and they are not guaranteed to win (big companies can hire some pretty good lawyers).

Perhaps there should be a distinction between projects that are essentially public works (regardless of who proposes to build them).  Examples public works obviously include highways (traditionally public, but could be private-sector), transit lines (ditto), railroads (usually private in the U.S.), high-voltage electric transmission lines (could be public or private), and pipelines of various kinds [water, natural gas, petroleum] (usually private, though some water pipelines are public).

You are correct about the lawyers - opponents of highways in the Md./Va./D.C./W.Va. area are often looking for pro-bono legal representation.

In terms of reforming the legal system surrounding project review, what I would say instead is that we need to apply the same policy that is applied in other types of lawsuits in the US: namely, that you cannot file suit if you are not an injured party. Current environmental review laws permit anyone and everyone to file a suit against a project if they do so on environmental grounds - even if the people filing the suit live nowhere near the project and are not in any way personally impacted by it.

So, basically... no suing the state about a project unless you live near it or can otherwise claim it harms you personally.

The plaintiffs in anti-highway lawsuits have been highly creative about coming up with injured parties.  In the case of the Wilson Bridge, they cited the possible impact on dead people (the appeals court that threw out their suit was apparently not impressed):

Amicus Sierra Club rather inventively argues that the Administration failed to treat as a section 106/4(f) property the Hunting  Terrace apartment complex in Alexandria, but it is not eligible for inclusion in the National Register of Historic Places, and therefore is not a protected property under either section 106 or section 4(f).  See 23 C.F.R. s 771.135(e);  36 C.F.R. s 800.2(e).

Showing similar ingenuity, appellees argue that the Administration violated sections 106 and 4(f) because "the boundaries of Freedman's Cemetery ... have still not yet been determined."  They apparently believe that since the site's precise location is unknown (and, it seems, unknowable), it is by definition impossible to know for certain the "effect" that the construction will have on the site, thus placing the Administration in violation of sections 106 and 4(f).

[vdeane]

Perhaps a "the person who sues pays all costs of carrying out anything if they are found to be in error" system would mitigate that.  The first plaintiff who's on the hook for millions/billions spent on a wild goose chase would serve as an example not to sue unless there's a real issue.  I've always been a proponent of having the loser in court pay all related litigation costs as a means of attaching a penalty to frivolous lawsuits, so this really isn't that different.

The problem with this sort of setup is that it prevents parties who have a legitimate gripe from filing suits if they cannot afford to pay their opponent's costs should they lose. It may sound nice to say the Sierra Club should be on the hook for the price of their blatantly obstructionist tactics, but fair application of such a policy also means that a class action suit by a bunch of working class individuals who were hurt by a company selling them an unsafe product or polluting their property from a nearby factory or what have you would likely not move forward even though it should, simply because the plantiff cannot afford the price of losing and they are not guaranteed to win (big companies can hire some pretty good lawyers).

I assumed that, in such a system, the plaintiff would hire an army of lawyers to counter that effect.

[oscar]

The plaintiffs in anti-highway lawsuits have been highly creative about coming up with injured parties.  In the case of the Wilson Bridge, they cited the possible impact on dead people (the appeals court that threw out their suit was apparently not impressed):

Showing similar ingenuity, appellees argue that the Administration violated sections 106 and 4(f) because "the boundaries of Freedman's Cemetery ... have still not yet been determined."  They apparently believe that since the site's precise location is unknown (and, it seems, unknowable), it is by definition impossible to know for certain the "effect" that the construction will have on the site, thus placing the Administration in violation of sections 106 and 4(f).

Unknown burial sites have been a serious headache for some Hawaii road projects, with strong protections for burial sites under state law in addition to whatever Federal law might require.  For one project that is finally heading to completion (extension of Ali'i Drive south of Kailua-Kona), part of the solution was a really wide ROW, so that if construction crews encounter a previously undiscovered burial site, there's room to realign the highway around it.

If the location of Freedman's Cemetery had been known, I suspect the Wilson Bridge project would've had to work around it.

[cpzilliacus]

Unknown burial sites have been a serious headache for some Hawaii road projects, with strong protections for burial sites under state law in addition to whatever Federal law might require.  For one project that is finally heading to completion (extension of Ali'i Drive south of Kailua-Kona), part of the solution was a really wide ROW, so that if construction crews encounter a previously undiscovered burial site, there's room to realign the highway around it.

I recall this being a big problem with the proposed light rail line on Oahu.

If the location of Freedman's Cemetery had been known, I suspect the Wilson Bridge project would've had to work around it.

They did find some graves in the path of the widened Beltway (on the Virginia side, obviously), and those graves were carefully exhumed and the remains moved to a new cemetery located on the southwest corner of South Washington Street (Va. 400) and  Church Street.

There was once a Mobil station on that parcel of land.

[Duke87]

People have way too ridiculous a hangup over graves and cemeteries. I wouldn't care if my dead body were just chucked in the river.

[NE2]

Neither would I. But, unlike most people here, I also don't care if I have to slow down for the occasional small town or god forbid take a bus.

PS: the original reason for burying dead was to keep away carnivores who would eat the living.

[Jardine]

People have way too ridiculous a hangup over graves and cemeteries. I wouldn't care if my dead body were just chucked in the river.

and then fished out and eaten by the Aghoris ???

(new episode with Andrew Zimern!!)

[cpzilliacus]

N.Y. Times: High Above the Water, but Awash in Red Tape - Long Review of Bayonne Bridge Project Is Assailed

It seemed ingenious at the time: Elevate the deck of the existing Bayonne Bridge to accommodate the giant cargo ships that will begin passing through the Panama Canal in 2015 after the project to widen and deepen it is scheduled to be finished. Building a new bridge or tunneling under Kill Van Kull would have been much more expensive and would have required years of regulatory reviews.

That was back in 2009. The Port Authority of New York and New Jersey first spent more than six months importuning various federal offices to serve as the lead agency for an environmental review. The law is vague about which agency is responsible. The Coast Guard finally agreed.

Since then, the Port Authority's "fast-track"  approach to a project that will not alter the bridge's footprint has generated more than 5,000 pages of federally mandated archaeological, traffic, fish habitat, soil, pollution and economic reports that have cost over $2 million. A historical survey of every building within two miles of each end of the bridge alone cost $600,000 – even though none would be affected by the project.

After four years of work, the environmental assessment was issued in May and took into consideration comments from 307 organizations or individuals. The report invoked 207 acronyms, including M.B.T.A. (Migratory Bird Treaty Act) and N.L.R. (No Longer Regulated). Fifty-five federal, state and local agencies were consulted and 47 permits were required from 19 of them. Fifty Indian tribes from as far away as Oklahoma were invited to weigh in on whether the project impinged on native ground that touches the steel-arch bridge's foundation.