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.

"I think that's exactly what we're looking at in the Gulf of Mexico. It's just not the right way to do things. If the exception becomes the rule, we have no rules.

"It's not the way to go about running a country."

Conrad, who deals with Congress all the time, said special-interest riders stuck onto appropriations bills at the last minute should always be viewed with suspicion:

"I know everybody gets cynical and thinks Washington, D.C., has no rules, but as far as riders are concerned, people don't like them. Members may try to use them, but the system is supposed to kick these things out.

"The appropriations bills are not supposed to carry this kind of stuff," he said. "It is what we call legislating on an appropriations bill.

"The appropriations committees don't claim as committees to have deep expertise in these kinds of things. That's why they have authorizing committees."

The problem—and the trick here—is that once a thing is firmly stuck into the hide of a big appropriations bill, it's harder to remove than a tick on a fat dog. Appropriations bills are almost by definition too big to fail. Once Hutchison's riders were in the appropriations bill, it was too late for Senate subject matters committees to assert jurisdiction.

"The Senate Environment and Public Works Committee certainly has made no official sign-off on this," Conrad said. "And they probably didn't hold any hearings. They may not have even known this was happening."

An appropriations bill is a "must-pass" bill. It passes into law, ticks and all.

The experts I spoke with were all looking at this from varying distances from Dallas, speaking about the issues in broad brushstrokes. They all tended to talk about potential harmful consequences of the Hutchison riders in a sort of generic sense, as unintended consequences that happen when you take an axe to the tree of the law to carve yourself a toothpick.

I'm closer to it. I don't know how far I'm willing to go with the "unintended" part.

As soon as she learned of these riders, city council member Angela Hunt contacted Dallas assistant city manager Jill Jordan to ask about the intended consequences of the riders.

Jordan sent Hunt a memo, which Hunt shared with me, in which Jordan told Hunt the exemption from the requirements of a 4(f) review would eliminate scoring differences between the several proposed alignments for the toll road. Jordan told Hunt the riders "would allow for them (federal highway officials) to look at all alternatives without weighing one more heavily than the other."

And that's a good thing?

Remember: There is no chosen official route yet for the toll road, which is to run from below downtown along the general route of the river to a point northwest of downtown. Yes, the voters of Dallas have endorsed a route between the flood control levees, may God preserve their souls.

But the feds haven't chosen a route. The process of making that determination depends on a carefully calibrated scoring system. A 4(f) review would apply negative points to the levee route, because the levee route would cause several kinds of negative impacts—to park land, wildlife, wetlands, historic structures, etc.—listed in the law.

Myron Hess, the environmental lawyer in Austin, spotted the effect of exempting the toll road from 4(f) right away: By exempting the levee route from the negative scoring points that the route would otherwise accrue, the riders have the effect of greatly improving the relative score of the levee route.

"That is one of the chief effects," he said. "It is dramatically changing what existing law is in terms of how that scoring system applies."

So the riders have the effect of giving a big boost to building a major expressway out between the flood control levees where floods happen. Isn't that special?

Hutchison's staff told the Morning News that Hutchison introduced the riders because "this is first and foremost a public safety issue."

I attempted for two weeks to get Hutchison's office to comment, at one point e-mailing them the entire gist of this column. They did not respond. Mayor Leppert did reply, confirming he had requested Hutchison's help.

But, yes. It is a public safety issue. An enormously important public safety issue. The Trinity River levee system, badly neglected by the city over the years and in dangerous disrepair, is all that stands between downtown and West Dallas and disastrous flooding during the region's biannual flash flood seasons.

That is precisely why Hutchison's riders are so wildly irresponsible. This is not a moment for us to reduce our caution or take shortcuts.

Conrad pointed out that science is providing new reasons every day for us to take more precautions, not fewer.

"In the U.S. climate report in 2008, they made the statement, at least for the upper Midwest, that events they thought had a return frequency of once in 100 years were, in the not very distant future, going to be more like 20-to-30-year events.

"In other words, they would be four to five times as common."

I believe somebody wants that road and doesn't care. I don't think there is anything unintended about the meat-axe approach. Quite the contrary. What these riders really demonstrate is that somebody somewhere in this city will use any kind of meat-axe, chainsaw or grenade—whatever it takes—to get this road built and built between the levees.

Damn the floods. Damn the people.

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Jim Schutze has been the city columnist for the Dallas Observer since 1998. He has been a recipient of the Association of Alternative Newsweeklies’ national award for best commentary and Lincoln University’s national Unity Award for writing on civil rights and racial issues. In 2011 he was admitted to the Texas Institute of Letters.
Contact: Jim Schutze