PennDOT’s unpopular $100 million Lake Erie arterial highway plan is still in court! Check out this April 14, 2022 Bayfront Parkway Litigation Update:
In December 2020, the NAACP Erie Unit and PennFuture, represented by Earthjustice, filed a lawsuit against the Federal Highway Administration and PennDOT to challenge the approval of the Erie Bayfront Parkway Project. The lawsuit argues that the decision to approve the project violates the National Environmental Policy Act and the Federal Aid Highway Act because PenDOT failed to examine the project’s potential impacts, including impacts on local residents, and failed to hold a public hearing. After the lawsuit was filed, the federal government was required to turned over all of the documents that the agencies reviewed in deciding to approve the project. These documents are called the “administrative record.”
In September 2021, Earthjustice filed papers asking the court to rule in favor of the NAACP and PennFuture based on the administrative record. Earthjustice made a number of arguments, including that the agencies’ analysis was flawed because it relied on incorrect numbers. The Federal Highway Administration and PennDOT, in turn, asked the court to rule in their favor based on the administrative record. A few days before Earthjustice’s deadline to respond, the federal government’s lawyers filed a notice with the court attempting to change numbers in the administrative record that Earthjustice had relied on to show their analysis was incorrect. In other words, we were correct that their analysis was wrong, and the agencies tried to change the numbers after the fact to support their original decision. Earthjustice opposed the agencies’ filing and argued to the court that the agencies’ attempt to change the record after the fact meant that we should win the case. The judge was interested in this argument and convened a conference to discuss. The night before the conference, the federal government filed two additional documents that should have been included in the administrative record, but were not. These documents directly responded to arguments we raised when we opposed them changing the administrative record.
This type of attempt to change the administrative record so late in the case and so dramatically is extremely unusual, if not unprecedented. At the conference, the judge gave Earthjustice an opportunity to submit additional papers arguing that the case should be resolved in our favor based on the government’s treatment of the administrative record. Now we are waiting for a ruling from the court. There is no deadline by which the court must rule, so it is hard to predict how long it will take, but we hope we will get a ruling within the next few months.