A federal judge declined to issue an injunction to stop the Platte to Park Hill flood control project and threw out sections of a lawsuit brought by developer Kyle Zeppelin and other plaintiffs over the connection between the project and the planned widening of I-70.
A major allegation of Zeppelin's lawsuit was that the city and CDOT teamed up to do an end-run around the environmental impact statement process and should have included the flood control project in that analysis.
U.S. District Court Judge William Martinez found that while there may well have been a connection in terms of how and why the flood control project was conceived, Denver is now committed to moving forward with it and would do so regardless of CDOT's actions. Martinez also said that as a judge in federal court, he doesn't have jurisdiction over a Denver flood control project. Denver was not named as a defendant in the lawsuit, which is directed at CDOT and the Federal Highway Administration. A separate lawsuit against the city in Denver District Court was unsuccessful.
Aaron Goldhamer, an attorney for the plaintiffs, called this "a minor setback." He's going to ask the judge to reconsider his decision, but there are a number of claims still active that don't have the same jurisdictional complications.
"We still think connected or related issues with cumulative environmental impact deserve examination," he said. "What today probably did mean is that we're not going to be able to stop Platte to Park Hill, period."
Today's ruling does not address other aspects of the lawsuit that are more directly targeted at CDOT and federal regulators, including that the hazards posed by contaminated soils that will be disturbed during construction were not adequately addressed in the EIS and that the EIS failed to consider all the pros and cons of rerouting I-70 north of Denver.
"Fine, we can't stop Platte to Park Hill from happening, but we still have a gripe here because there is no EIS out there that studies this cumulative environmental impact," Goldhamer said.
Today's ruling also does not concern the claims in a lawsuit brought by the Sierra Club and organizations representing the neighborhoods along the I-70 corridor. That lawsuit alleges the EIS did not fully consider the impact of fine particle pollution or the potential for future violations of the Clean Air Act as a results of the highway widening itself. That lawsuit has been joined with the Zeppelin suit, and they're being heard by the same judge.
An injunction is a kind of litmus test in cases like this because to issue an order to stop a project, the judge has to find that the plaintiffs have a pretty good chance at prevailing on the merits.
CDOT officials have repeatedly defended the work done on the environmental analysis and pointed to measures the agency is taking above and beyond what's been offered to other communities affected by construction, such as paying for new windows and air-conditioning units for nearby homes.
"This is positive news for the Central 70 Project and important confirmation of the diligence and effort CDOT has devoted to preparing to deliver a safer and less congested I-70,” said CDOT Executive Director Shailen Bhatt said in an emailed press release. "CDOT has long-maintained that the Central 70 Project will stand up under the toughest legal scrutiny and today’s finding affirms that."
