Environmental Defense Appeals Intercounty Connector Ruling

January 7, 2008



Contact: Sean Crowley, Environmental Defense, 202.550.6524, scrowley@ed.org


(Richmond, VA – January 7, 2008) Environmental Defense today filed an appeal of a federal judge’s ruling in favor of government agencies that approved the proposed Intercounty Connector.  The Audubon Naturalist Society has decided not to file an additional appeal of the issues it had raised in the case, choosing to support the claims based on the state’s failure to prevent the serious air quality and human health threats raised in the appeal by Environmental Defense, and a separate appeal by Sierra Club based on the National Environmental Policy Act. 


The appeal seeks review in the U.S. Court of Appeals for the Fourth Circuit of the November 8 ruling by Judge Alexander Williams, Jr. of the United States District Court for the District of Maryland, Greenbelt Division. It maintains that agencies violated the Clean Air Act and other federal laws when they approved the ICC. The Washington, DC-Maryland-Virginia area already violates the Environmental Protection Agency’s air pollution standard for tiny particulate matter (2.5 millionths of a meter or less in diameter), a dangerous pollutant that is associated with heart attacks, irregular heartbeat, asthma attacks, reduced lung function, bronchitis, and premature death.  The region also violates the federal standard for ground-level ozone, a major component of smog.


“The court’s ruling falls woefully short of the bar and fails to address the serious health threat of air pollution generated by traffic on the ICC and other roads,” said Michael Replogle, a civil engineer, transportation director for Environmental Defense, and a former consultant for the Federal Highway Administration. “The court’s ruling gave unwarranted deference to government agencies to ignore what the law requires.”


Environmental Defense maintains that ICC approvals violated federal law because the agencies based their assessment of compliance with air quality standards on measurements made well beyond the zone of impact where highway emissions would violate the national standards. Appellants also will argue that the court unlawfully allowed the agencies to ignore the public health impacts of air pollution within the zone where highway emissions have been shown to impair lung development among children, and exacerbate the serious danger to health from asthma and heart attacks. 


The ICC is a proposed six-lane, 19-mile toll highway connecting I-95 and US-1 in Prince George’s County with I-270/I-370 at Shady Grove in Montgomery County. The agency approvals assumed that monitors located more than 1.5 miles from major highways could represent the pollution levels experienced by neighborhoods, schools, and parks in close proximity to major highways such as I-95, I-270, and I-370. 


“In his written opinion, the judge admitted that our arguments that air pollution monitors miles away from I-95 did not fairly represent pollution next to the road had ‘resonated with the court,’ but then proceeded to give deference to the agencies to disregard these serious problems,” concluded Replogle. “The flaws in this legal opinion leave us with no alternative but to appeal this decision in the hope that the higher court will more effectively consider clear Clean Air Act requirements that would better protect the health of the thousands of people living close to the proposed ICC and I-95.”