Senator Kay Bailey Hutchison Took A Meat-axe To Federal Law To Get The Mayor His Toll Road. But Did She Even Think About The Consequences?

We earn disasters like the Gulf oil spill. We bring them on ourselves by breaking the rules every time the rules get in our way.

Houston attorney Jim Blackburn, one of the nation's top environmental lawyers, talked to me last week about efforts by Dallas Mayor Tom Leppert to get the Trinity toll road project exempted from important federal environmental reviews. He called the Dallas effort an attempt to duck laws designed to protect the public.

"This frankly is the exact same problem we have in the Gulf of Mexico right now, just on a little different scale," Blackburn said.

Last month Leppert persuaded U.S. Senator Kay Bailey Hutchison to stick two "riders" onto an unrelated federal appropriations bill in an effort to change federal law so that it will not apply to the Trinity toll road. "Rider" is legislative slang for an additional provision added to a bill as an amendment that has little or nothing to do with the bill itself.

The riders that Hutchison added to an unrelated appropriations bill are now being considered in a conference committee of the House and Senate. If agreed to by House conferees, the riders will become law.

In her statement about the riders to The Dallas Morning News, Dallas City Manager Mary Suhm characterized them as applying only to a possible historic designation for the Dallas levee system. The U.S. Army Corps of Engineers announced last April it was required by law to study the Trinity River Project in Dallas to see if construction would threaten any historic structures.

In explaining why the city sought Hutchison's help in exempting the project from certain federal laws, Suhm said invoking federal historic protections might delay important flood control work.

But I have spoken with experts here and around the country who say the riders Hutchison stuck onto the appropriations bill on May 27 are meat-axes. There is nothing surgical about them, nothing to limit their effect to mere historic designation issues.

"This is sweeping," said David Conrad, senior water resources specialist for the National Wildlife Federation in Washington.

Whether Hutchison and Leppert intended it or not, Conrad said, their amendments, if passed into law, would chop a raw, gaping hole in federal law as it applies not only to the Dallas project but to the entire 700-mile course of the river.

More than historic preservation is at stake. More than the Trinity River toll road is at stake. Much more than the Trinity River Project in Dallas is at stake.

"The applicability of one of those amendments is to the original Trinity River Project," Conrad said, referring to an authorization passed by Congress in 1945. "That was the more general plan for development of the Trinity from way up north to way down through Houston."

Conrad said the wording of the amendment, if it becomes law, could be used by someone to argue that the amendment applies to the entire course of the river.

But the second Hutchison amendment, more narrowly aimed at Dallas, may be even more of a meat-axe for us. It chops away an entire level of federal review, not merely the historic designation laws. Usually called the "4(f)" review, it requires federal highway projects to avoid causing unnecessary damage to a publicly owned park, recreation area, wildlife or waterfowl refuge, or land of a historic site. The whole 4(f) review, considered tougher and more important than the requirements of the National Environmental Protection Act, will be off the table for the toll road if the Hutchison amendments pass.

The second amendment Hutchison has attached to the appropriations bill also will affect much more than just the toll road project. The language of the amendment states that it applies to "any highway project to be constructed in the vicinity of the Dallas Floodway, Dallas, Texas."

"Vicinity, what does that mean?" asked Myron Hess, an Austin lawyer who is a manager of Texas water programs for the National Wildlife Federation.

Regardless what Hutchison may have meant by it, Hess suggested someone in the future could use that language to argue that the exemption from review applies to any and all federally supported road projects anywhere near the Trinity River in Dallas.

"And this sort of rider doesn't expire," he said, "so that could be in effect for decades. That's troubling beyond whatever its importance is to this particular project."

Conrad in Washington said eliminating the 4(f) review for the Dallas toll road project will put the project significantly out of step with equivalent projects around the country in terms of its environmental impact and safety.

"Most cities live with these laws," he said.

Attorney Blackburn in Houston said it's this kind of narrow-gauge, opportunistic approach that sets the scene for disasters like the BP Deepwater Horizon spill in the Gulf:

"These laws were passed for good reason," he said, "and they set up important processes. They're set up to evaluate issues that were judged to be sufficiently important."

Using a back-corridor legislative trick to get out of them, he said, is the very mentality that gets us into trouble.

"It's the mind-set that we're going to make exceptions every time we run into difficulty. That's what gets us into major regulatory problems.

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