Infrastructure Bank takes wrong road with payback threat

Charleston County Council, once a champion of the S.C. Department of Transportation’s DOT plan for extending the Mark Clark Expressway, has officially voted against the project. The move was 100 percent justified, as council rightly considered citizens’ overwhelming opposition to the project as well as the studies revealing the meager transportation benefits of extending the highway compared to the project’s exorbitant cost — over $489 million.

Now, proponents of the highway are trying to force open the issue by claiming the county is in breach of its agreement with the DOT and the State Infrastructure Bank to fund a portion of the project. State Sen. Glenn McConnell was quoted in this paper as saying: “You can’t make a decision to do it and then make a decision not to do it.”

But, in fact, that is precisely what federal law allows communities to do.

Any proposal to build a major highway project like the Mark Clark must first be evaluated under the National Environmental Policy Act (NEPA), one of America’s fundamental environmental laws, enacted some 40 years ago.

Among other things, the law requires that potential alternatives for proposed projects be thoroughly explored, including a “no-action” alternative. NEPA does not compel a particular outcome; rather, its purpose is to unearth all of the facts so that the public and decision-makers can make an informed choice.

A principal feature of the law gives project sponsors, after careful study and public input, the opportunity to amend their proposals or to reverse course altogether.

During the NEPA process for the Mark Clark Extension, citizens came out in force at five local public hearings to oppose DOT’s plan. In addition, the draft environmental studies showed that the project would yield little transportation benefit — reducing the average drive time by less than a minute for drivers in West Ashley and on James Island, and just 4.6 minutes for drivers on Johns Island. All of this for a whopping $489 million price tag, leaving the county responsible for coming up with an additional $69 million beyond what it had already committed.

The county rightly asked DOT to take a harder look at alternatives that were dismissed early in the process and also consider newly proposed alternatives. When DOT refused, County Council rejected the Mark Clark Extension as proposed.

Those who argue that Charleston County now owes the bank $11.6 million to repay what’s been spent on the project so far are on the wrong side of the law.

They claim that when the county entered into the agreement with the bank and the DOT in 2007 (before the initiation of the NEPA studies), the county was committing to build the project no matter what the studies concluded. Such a claim undermines federal law; the NEPA process cannot be treated as simply a box to check off in pursuit of constructing a highway.

An examination of the agreement shows that the county is on firm legal ground. In addition to complying with NEPA, the extension of a highway requires the consent of all municipalities in the highway’s path, plus various state and federal permits.

James Island Town Council has passed two resolutions rejecting construction of the extension through their town, and the U.S. Environmental Protection Agency recommended denial of a necessary wetlands permit. The county clearly is not responsible for the actions of either.

The agreement does not specify what happens if the approvals are not secured. When a contract is silent or ambiguous, South Carolina law favors an interpretation in accordance with reason, justice, and public policy.

Trying to exact $11.6 million from the county for a decision that ultimately saves the county and the state almost half-a-billion dollars would undermine sound principles of public policy. It would penalize the county for actions taken by other governmental bodies and would treat the NEPA process as a sham, establishing a dangerous precedent for poor decision-making on projects of significant public importance.

Citizens of Charleston County, and all South Carolinians, should applaud council members for reaching a reasoned and just decision that will avoid wasting scarce taxpayer money on a project that would cause significant environmental harm yet fail to solve traffic problems.

There are more cost-effective ways to solve our transportation challenges and the bank, rather than threatening local citizens, should instead help our community by funding worthy local projects.

Chris DeScherer is the head of the Coast & Wetlands Project of the Southern Environmental Law Center, based in Charleston.

Post and Courier

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