Law professor challenges legality of CRC
Project opponent alleges funding is too shaky
Originally published March 23, 2012 at 11:20 a.m., updated March 23, 2012 at 6:54 p.m.
A Portland attorney and Lewis and Clark College law professor has asked the federal government to rescind its approval of the Columbia River Crossing, saying the project’s shaky finances make the Record of Decision invalid.
In a March 13 letter to the Federal Highway Administration, Tom Buchele says the key document — which allows for construction to start on the $3.5 billion project — is possibly illegal.
Writing on behalf of his clients, Northwest Environmental Defense Center and the Coalition for a Livable Future, Buchele states that the highway administration violated its own rules when it gave the green light to the CRC.
Federal law requires that a project’s funding must be “reasonably available” before bureaucrats may sign off on a final environmental impact statement.
The plans the CRC sent to the feds show deadlines for receiving federal and state money, and also include a three-way split of financing among the federal government, vehicle tolling and the states of Oregon and Washington.
However, only tolling has been approved, along with $39 million for light rail from the Federal Transit Authority.
Buchele argues that with state and federal budgets in crisis, and with no official approval of construction money from either state, the federal Record of Decision doesn’t contain an expectation of funding that is reasonably available.
“It is very clear given the funding crisis confronting the two state Departments of Transportation, their binding commitment of the bulk of their future revenues to retire debt service, and the omission of any provision for funding construction costs in the two states’ transportation budget that funding for the CRC is not reasonably available,” he wrote.
A September 2011 timeline issued by the CRC said legislative review of the project would happen this year. But both state’s bodies adjourned without any action on the proposed megaproject.
The federal law regarding Records of Decision says determining what “reasonably available” means is a judgment call. But it adds that two important points to consider are if a project has evidence of review and support by state and local officials, and documentation of the rationale and procedural steps to be taken with milestone dates for securing the funds.
Buchele also quoted Polly Trottenberg, assistant secretary for policy at the U.S. Department of Transportation, as having said funding for any megaproject, including the CRC, is not available at the level that it used to be.
Reached for comment Thursday, Buchele said he’s afraid that if the Record of Decision is null, the community has wasted the more than $140 million that has been spent in planning for a project that may never be built.
“It’s not the first time I’ve seen the Federal Highway Administration ignore this requirement,” said Buchele, who specializes in National Environmental Policy Act law. “It’s unfortunate. It’s not uncommon for them to go down this road, issue (Records of Decision), and state agencies and others put a lot of effort into a project, and then the money’s not there.”
Though he is representing two clients who are staunchly opposed to the CRC, Buchele said he had no comment as to whether they were planning to file litigation to stop the project.
He told an Oregon Legislative Oversight committee last week that a lawsuit from some party was highly likely.
A spokeswoman for the Columbia River Crossing did not return a request for comment.
A U.S. Department of Transportation spokesman said Thursday that “the letter was received and a response is currently being prepared.”