Prediction for 2009: Trinity Toll Road Finally Crashes and Burns for Good

Here's hoping that the next year brings us a big, stinking failure on the Trinity

This is the time of year when most people who do what I do for a living write about what they think will happen in the year ahead. In other words, they take the day off.

But I prefer to view the future through my own lens. What warms my heart and quickens my pulse is thinking about all the stuff that's going to crash and burn next year. It makes me happy. Like the Trinity River toll road, for example.

Look, I do remember that we had a referendum on this issue a year ago and that the people of Dallas, in their estimable wisdom, voted to build a highway out in the middle of the river. But let me say this about that. Building a highway in the middle of a river is a really, really, really stupid idea.

When the rains come down, the river fills up. Perhaps we forgot this important scientific principle when we voted to build an expressway next to the river.
When the rains come down, the river fills up. Perhaps we forgot this important scientific principle when we voted to build an expressway next to the river.

Please bear with me. I mean no harm. These last years in our great nation have been a time of turmoil and soul-searching for us all. One of the things I have had to open my own heart to, in spite of a lifelong faith in democratic governance, is that sometimes democracy is an idiot.

Sometimes the people elect the wrong guy. Sometimes they vote to build a highway in the middle of a river. People are people.

I see some of you raising your hands to say that you did not, as far as you know, vote to build a highway in the middle of a river. You voted to build it on the side of the river. And I do see your point. Please allow me to explain my point.

When there is no rain and the region is dry, the Trinity River, which runs through the center of our city, is low and narrow—a trickle at most. True, during those periods the proposed highway will be next to the river—right next to it, cheek-by-jowl as a matter of fact.

But when the rain comes down from the sky and the storm sewers and ditches fill with water, then the river will become deep and broad, and then the highway will be in the river up to its cheeks.

Aha! The dratted rain. But you know, an underwater highway is actually the least of what we have to worry about. The real concern is that gumming up the city's flood-control system by building a highway in the middle of it will expose downtown to a risk of catastrophic flooding.

That's the biggie. Not that the people pushing this highway will feel even a twinge of conscience over that. We have seen already that they do not and will not. No, the problem for them now is a new and evolving legal climate in America in which they could be sued and ruined. In fact, my prediction for next year is that the risk of litigation will put the long overdue kibosh to this idiotic scheme.

In the legal climate post-Hurricane Katrina, government agencies, officials in those agencies and elected officials are starting to have new worries. Centuries-old legal principles shielding them from liability are changing and eroding, especially the concept of sovereign immunity.

Sovereign immunity is the time-honored idea that government officials who are doing their darned best to protect the public from floods can't be sued if something goes wrong and a flood happens anyway.

Legal experts are warning government officials not to put too much trust in sovereign immunity these days. In fact a "National Committee on Levee Safety" convened by the U.S. Army Corps of Engineers a year ago seems to be spending less time on levee safety and more time on the issue of who gets sued, who wins and who loses when dams and levees go bad.

You remember levees—those big grassy berms along both sides of the Trinity that are supposed to hold the water in when the river rises so it won't flood downtown. There are two things to keep in mind about our own levees here in Dallas. First, in the early 1990s when the Corps of Engineers first started talking about the need for new construction along the Dallas levees, the Corps' justification was that the Dallas levees needed to be raised to prevent flooding downtown.

But in October 2001, George W. Bush's first director of the White House Office of Management and Budget, Mitchell Daniels (now governor of Indiana), took the Trinity River project out of the presidential budget. Daniels said in a memo to the Corps: "OMB has serious concerns about the way the Corps formulated this project."

Since then, in fact, the Trinity project has been funded almost entirely with congressional earmark funds outside the normal budgeting process. If you don't mind, let's not try to drill down too deep into that one. Daniels' technical reasons for questioning the project aren't central to the point I'm trying to make here.

The pertinent point—especially if you happen to be a plaintiff's attorney out there with your ears pricked up—is this: A fairly dramatic public record exists in which a high government official called into question the basic underlying design of this flood-control project.

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