Environmental groups ask judge to reverse Maryland toll lane approvals

It’s the latest challenge to former governor Larry Hogan’s (R) plan to ease some of the nation’s worst road congestion. Supporters say the project to widen highways through suburban areas would help alleviate traffic backups in suburban Washington, while critics cite concerns about effects on parkland and historic sites, arguing it does little to boost transit options.

In the motion filed Friday, the groups allege that the project would increase pollution in communities near the highway, disproportionately affecting residents who are racial minorities or have lower incomes. They also cited the potential for disturbances to unmarked graves around a historic Black cemetery, intrusions on the environmentally sensitive Plummers Island near the American Legion Bridge and decreased quality of life for those who live near new interchanges.

“Despite spanning tens of thousands of pages, the Agencies’ review of the toll lanes project still omits critical information about the project’s harms to communities, historic sites, and the environment,” the motion says. It calls on the court to reverse project approvals “so the Agencies can reconsider their decision after a full evaluation of the project’s impacts.”

Terry Owens, a consultant for the Maryland Department of Transportation, said the state and the Federal Highway Administration will reply in court by Aug. 7, citing a schedule ordered by the court.

“While we maintain the Managed Lane Study fully complied with all federal requirements in [the] environmental review process, the Maryland Department of Transportation cannot comment further as this is an ongoing legal proceeding,” he wrote in an email.

A spokesman for Gov. Wes Moore (D) reiterated that the administration is committed to easing congestion and replacing the 60-year-old American Legion Bridge, which often creates a bottleneck for traffic between Virginia and Maryland.

But the administration has not expressly said that it would build the toll lane project as designed. Moore spokesman Carter Elliott IV said in an email that “the governor is committed to reviewing solutions that will ease congestion and providing more travel options that serve everyone.”

“Gov. Moore’s first priority is to review solutions through the lens of equity, sustainability, environmental protection and environmental justice,” the email continued.

Among other allegations, the motion claims that state and federal officials failed to clearly analyze and articulate the project’s community and environmental costs, citing some of the same issues Moore has said are important to him.

Plaintiffs include the Maryland Chapter of the Sierra Club, the National Trust for Historic Preservation, the Natural Resources Defense Council, and Friends of Moses Hall, formed to help preserve the Morningstar Tabernacle No. 88 Moses Cemetery and Hall, a historic African American cemetery in the shadows of the Beltway. The Northern Virginia Citizens Association, which had filed a separate lawsuit, joined portions of Friday’s brief, the groups said.

The plaintiffs singled out what they allege was a lack of analysis and public communication about environmental air quality for vulnerable communities along the path of the project and the disturbance of graves in the Morningstar Tabernacle No. 88 Moses Cemetery, which was separated from its church when the Beltway was constructed decades ago.

Hogan announced the plan in September 2017 as part of a $9 billion proposal to widen Maryland’s most troubled roadways without getting public support from local officials. Many of those officials — particularly in Democrat-heavy Montgomery County — preferred a more transit-oriented approach. Hogan pitched the public-private partnership as a way to relieve bottlenecks without relying on taxpayer money.

Part of his plan faltered early: the state couldn’t secure control of the Baltimore-Washington Parkway from the federal government to widen the highway. But the remaining proposal to launch one of the nation’s largest public-private partnerships to build toll lanes and replace the bridge moved forward in fits and starts until March.

That month, the company selected for a 50-year deal to design, build and operate the toll lanes walked away, leaving the $6 billion project’s future uncertain. By then, Maryland had spent $200 million to design it. Australian toll company Transburban cited the ongoing lawsuit as part of the reason it quit the project. The decision came amid uncertainty over whether Moore, who has criticized the project, would support building it.

Owens said the state is working on “design and permitting activities, field work and data collection; and developing funding options and procurement approaches to deliver a new American Legion Bridge and multimodal corridor improvements, including seeking federal grants.”

Diane E. Baxter, who has two great-grandparents buried at the cemetery, said in a new legal filing along with the motion Friday that she finds it “galling that MDOT keeps saying that the project will not harm the Cemetery when they have no idea whether that’s true.” She said that a ground penetrating radar survey conducted in connection with the project in 2021 did not cover all of the land around the cemetery where people might be buried.

In an earlier legal filing, Maryland acknowledged “there remains limited potential for burials located outside the historic property boundary” that could be affected by the toll lanes project. To account for that possibility, the state said it agreed to “fully investigate areas to be impacted by construction that are near or may be associated with the Morningstar Cemetery as design is advanced further.”