Oral arguments are set to take place before the Fourth Circuit Court of Appeals in Richmond, Virginia on March 20, 2012 in connection with an appeal asserted by several environmental groups seeking to stall construction of the Monroe Connector Bypass (commonly known as the “Monroe Bypass”) in Union County. If the Fourth Circuit rejects the appeal and allows the project to move forward, a groundbreaking is expected in August of this year, as reported late last week by the Charlotte Observer.
Tag Archives: N.C. Department of Transportation
As reported in the Fayetteville Observer over the weekend, the N.C. Department of Transportation (“NCDOT”) is moving forward with its $4.4 billion (yep, that’s “billion” with a “b”) plan to widen I-95 from four to six lanes through implementation of tolling on this critical 182-mile transportation corridor.
Why tolls? To quote the story:
The reason is money. [NCDOT] figures show the state has roughly $45 billion in projects to complete by 2020. But the state expects to have only about $9 billion to spend on those projects. The funding gap would mean many key projects would have to be postponed for years.
To the extent current conditions, anticipated usage and a comparison of the available alternatives dictate that lane expansion is necessary — issues I have not researched thoroughly and therefore cannot opine upon — I can understand why NCDOT officials are seeking federal approval for converting I-95 to a toll road. The divisive political environment pervading our nation’s capital virtually guarantees that no new federal infrastructure investment, beyond what the state is already receiving year-in and year-out on average, can be expected anytime soon. That means end-users, and not taxpayers, are going to have to foot the bill if this ambitious widening project is to move forward now.
However, with the price of 87-octane currently hovering around $3.70 per gallon, I suspect the public’s reaction to the tolling plan could be vocally negative. We’ll know shortly whether these suspicions are confirmed, as the NCDOT is conducting informal hearings up and down the corridor between tomorrow and February 27. If you’re interested in attending, a complete calendar of the hearings can be found here. And for more information, including a chance to review the “I-95 Corridor Planning & Finance Study Environmental Assessment” recently authored by NCDOT’s consultants, head on over to www.driving95.com.
What’s my view on this as a construction law matter, as opposed to a public policy and/or political matter? Well, I’ve spent a bit of time perusing those portions of the Study related to the financing of the project, keeping in mind that other states have utilized public-private partnerships (“PPPs”) in the design and construction of new toll facilities. Under a PPP, one or more private partners invests up-front in the design and construction of the infrastructure in question, and is subsequently reimbursed though (and profits by) tolling. As best as I can tell, however, the Study does not indicate whether NCDOT is still considering the PPP option.
I’m curious about this angle to the story, since PPP’s introduce a host of issues of interest to construction law attorneys: Would the construction contract(s) be awarded to the “lowest responsible bidder” within the statutory sealed bid framework, or by some other competitive or negotiated process? How transparent would the procurement process be? Would statutory bonding requirements for public projects apply? What project-level communications challenges might be created through the involvement of a private partner? Would the government, its private partner or both have authority to terminate a contractor for cause? How might typical contractual risk allocations be shifted? I’m sure my fellow construction law practitioners could suggest a score of others.
I’ll be keeping my eyes on both the PPP-angle to this story and other developments, so please stay tuned.
November 1, 2011 Update: Lawyers from the Southern Environmental Law Center have appealed Judge Dever’s decision to the 4th Cirtcuit Court of Appeals. As the Charlotte Observer notes, the appeal is not expected to postpone construction of the bypass. Also in today’s Charlotte Observer is this story regarding the potential far-reaching impact of the project, including for area construction crews.
Original October 25, 2011 Story: Earlier today, summary judgment entered in favor of the N.C. Department of Transportation (“NCDOT”) in a lawsuit brought by lawyers from the Southern Environmental Law Center seeking to stop the Monroe Bypass project in Union County from moving forward. As reported by News 14 Carolina (story and video here), work can now begin on the $824 million project. The new toll road will run approximately 20 miles from Highway 74 at I-485 to Highway 74 between Wingate and Marshville.
Based on my cursory review of the Monroe Bypass opinion, it appears the attorneys for the Southern Environmental Law Center advanced arguments that are substantially similar to those they are making in a separate litigation concerning the planned Bonner Bridge replacement project in Dare County, on which I commented back in September. Specifically, counsel argued that NCDOT did not carefully analyze the potential environmental impacts of the project, thereby violating the National Environmental Policy Act (“NEPA”) of 1969. Judge James C. Dever III disagreed in a 28-page Order reciting, in a fair amount of detail, the steps taken by NCDOT to analyze the environmental impacts of the project and comply with NEPA.
Since both the Monroe Bypass and Bonner Bridge matters are pending in the U.S. District Court for the Eastern District of North Carolina, Judge Dever’s ruling is likely to cast a long shadow over the OBX litigation. Indeed, unless NCDOT handled the environmental impact studies for the OBX project in a substantially less comprehensive manner than Judge Dever describes with respect to the Monroe Bypass project, it is difficult to envision a scenario where the Southern Environmental Law Center prevails in stopping the Bonner Bridge replacement project from moving forward.
Creative carpool-lane scofflaws, like this artiste from New York, might soon be able to retire their mannequins, at least in the Charlotte area. As reported in today’s Charlotte Observer, N.C. Department of Transportation Secretary Gene Conti informed the Charlotte City Council on Monday that a contractor could be selected to convert high-occupancy vehicle (“HOV”) lanes to high-occupancy toll (“HOT”) lanes on I-77 as soon as this time next year. Once the conversion is complete, high-occupancy vehicles would be authorized to use the HOT lanes without charge, but solo motorists trying to shorten their morning and evening commutes would have to pay a toll via electronic transponder.
The project could cost upwards of $200 million, but it wasn’t the price tag that caught my eye. Rather, I’m interested in the possibility that the conversion could be financed through a public-private partnership. A number of other states have either utilized or are considering utilizing “PPP’s” in developing HOT lanes. In fact, Georgia appears primed to build new toll lanes alongside I-75 and I-575 in Cobb and Cherokee counties through a PPP, at a price tag over $1 billion.
Which got me to thinking:
- What are the potential legal issues that must be considered before the NCDOT engages in a PPP for an HOT?
- What are the public policy considerations?
- Might the politics of developing so-called “Lexus Lanes” be too HOT to handle?
I hope to give these questions some additional thought in the days ahead and provide some additional insights in a subsequent blog post.
As reported in today’s News & Observer, a public hearing was held yesterday at the Raleigh Convention Center to unveil the latest option for siting a high-speed rail line through Raleigh. The new route unveiled by N.C. DOT engineers, dubbed “NC5,” would feature a 700-foot bridge over Capital Boulevard between Peace and Wade Avenues. Despite adding a reported $32 million in construction costs to the 3.4-mile segment of the line between Hargett Street and Whitaker Mill Road, the latest proposal appears to be drawing some favorable reviews from interested Raleigh residents, according to the N&O.
Additional information regarding the proposed Southeast High Speed Rail Corridor from Washington, D.C. to Charlotte can be found here.
9/30/2011 Update: North Carolina has been awarded a $4 million grant by the U.S. Department of Transporation for environmental and design work for constructing a high-speed rail connection between Raleigh and Richmond; the Department’s press release is here.
While construction crews continued making steady progress repairing the damage Hurricane Irene inflicted upon Route 12 in the Outer Banks in late August (updates can be found here and here), lawyers for the N.C. Department of Transportation were busy responding to a complaint filed by two national non-profit organizations seeking to put the kibosh on the State’s current plan for replacing the Herbert C. Bonner Bridge, which spans the Oregon Inlet and connects Hatteras Island with the rest of the Outer Banks.
Plaintiffs Defenders of Wildlife and the National Wildlife Refuge Association filed their Complaint on July 1, 2011 alleging, among other things, that NCDOT violated various federal environmental laws in failing to “rigorously explore and objectively evaluate” alternatives to the bridge’s replacement, including a “no action” alternative that would scrap the bridge entirely in favor of utilizing high-speed ferries. NCDOT lawyers answered the Complaint on September 6, denying that the Department violated any federal laws and asserting that Plaintiffs had failed to state a claim against NCDOT upon which relief could be granted. Both the Complaint and the Answer are posted on NCDOT’s “Bonner Bridge Repair and Replacement Projects” webpage. Additional coverage by the North Beach Sun can be found here.
Incidentally, the replacement project went out to bid between the filing of the Complaint and the filing of the Answer. Specifically, in late July, NCDOT awarded a $215.8 million contract to the design-build team of PCL Civil Constructors Inc. and HDR Engineering Inc. of the Carolinas; the Department’s press release can be found here.
As of the date of this blog post, the Plaintiffs had not sought any preliminary injunctive relief to stop the design process in its tracks. I’ll keep my eye out for developments in the litigation and keep you posted as this matter unfolds.