Defendants instead are forging ahead as rapidly

A federal judge ruled Friday in favor of road operator Transurban and the Virginia Department of Transportation, saying that "irreparable harm" has already occurred by the company's removal of trees along Live Oak Drive in McLean.

MCLEAN, VA — A group of McLean residents lost their bid to get work halted on the I-495 Express Lanes Northern Extension project, when a federal judge ruled Friday in favor of road operator Transurban and the Virginia Department of Transportation.

At the hearing in federal court in Alexandria, U.S. District Judge Leonie Brinkema said the group, the Northern Virginia Citizens Association, failed to show that the $660 million project would irreparably damage the area of McLean next to the George Washington Memorial Parkway interchange with Interstate 495, where many homes and a swim club are located.

Since breaking ground on the project, known as the 495 NEXT Project, about a year ago, the developers have removed hundreds of trees and created a huge stormwater basin at the interchange.

In their motion for a preliminary injunction, the residents, many of whom filled the courtroom on Friday, argued that Transurban, an Australia-headquartered company, VDOT and the Federal Highway Administration had violated federal environmental law “by radically changing the approved May 2021 design without proper public notice, opportunity for comment, or assessment of the dramatically more severe environmental, health and safety impacts.”

But Brinkema said in her ruling at the end of the hour-long hearing on Friday, where she heard from lawyers representing both sides, that the “evidence is just not there” to support the residents’ contention that they would face irreparable harm if the project were allowed to proceed.

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Because Transurban and its subsidiary, Capital Beltway Express LLC, had already cut down many of the trees around the project area, the “irreparable harm has already happened,” Brinkema said.

READ ALSO: McLean Residents Sue To Stop Further Work On I-495 Toll Lanes Project

After the judge’s ruling in its favor, Transurban said it remains confident that the project, which is expected to be completed in 2025, is in compliance with all environmental regulations and associated requirements and approvals.

“Alongside our project partners, we continue to focus on minimizing impacts to communities as we work to deliver the expanded travel choices, environmental enhancements, and improved safety that the more than 230,000 daily travelers of this corridor are relying upon,” Tanya Sheres, director of corporate affairs and marketing for Transurban, said in a statement Friday.

In the coming weeks, Transurban said project work will include additional removal of old sound walls in preparation for widening of I-495 and pile driving work for the foundations of new bridges. Work will also continue at Live Oak Drive in the coming weeks and months, including construction of temporary drainage facilities, the placement of temporary pavement, and a minor traffic shift, according to the company.

"This work will allow for the required relocation of utility lines at Live Oak Drive," Transurban said. "Throughout this work, it continues to be a top priority to utilize industry best practices to reduce impacts for residents and travelers."

The Northern Virginia Citizens Association, formed in December 2020, has more than 150 members, including 75 members who live on Live Oak Drive, Green Oak Drive and Rivercrest Drive in McLean.

The association filed a lawsuit on March 16 asking the court to put a stop to further work on the 495 NEXT Project, until the developers complied with the National Environmental Policy Act. Instead of filing a lawsuit earlier in the project's life, the residents waited until March to file their complaint because they had hoped to reach an agreement with the developers in order to avoid litigation.

Once they filed the lawsuit, instead of waiting for the case to work its way through the court system, the residents then filed the motion for injunctive relief on March 31, with a request for it to be expedited.

On Tuesday, Brinkema granted the group's request to expedite consideration of the motion and set a hearing on the motion for April 7.

In her ruling in favor of Transurban on Friday, Brinkema suggested the company meet with the residents to see if their concerns could be addressed. But the judge did not issue an order that would enforce a discussion between Transurban and the members of the Northern Virginia Citizens Association.

After the hearing, Claudia O’Brien, a Northern Virginia Citizens Association member, said she was not surprised by the judge's ruling. But she wished the judge had taken into consideration her group's arguments that Transurban and VDOT had made significant changes to the project after completion of the environmental assessment required under federal law.

Among the changes were new cloverleaf flyover ramps and one wishbone-shaped ramp in the vicinity of Live Oak Drive at the George Washington Parkway interchange that expanded the footprint of the project deeper into the nearby community. The redesigned project also included the building of a large stormwater basin that would result in significantly greater environmental impacts than had been disclosed during the environmental process, the group said.

In the original project plan, a pond would be located in a small portion of the forested interchange between I-495 and the George Washington Parkway. The redesigned project plan, though, changed the small pond to a much larger stormwater basin that occupied the majority of the interchange.

At the hearing, a Transurban lawyer described the large stormwater basin as about 30 feet deep, as opposed to the originally planned 19 stormwater basins, which would have been much smaller.

Someone in the courtroom yelled that the basin was deeper than 30 feet. Brinkema then reminded the audience that no outbursts were permitted in the courtroom.

After the hearing, O’Brien said she believes Transurban decided to switch to a large basin because it was cheaper than building several smaller stormwater basins that her group believes would be more environmentally friendly.

Also, rather than clear-cutting the interchange area where the stormwater basin is located, they could have protected more than 90 percent of the trees there, she said.

In their motion, the residents also noted that Transurban has withdrawn as contractor for the Maryland portion of the I-495 Express Lanes project and the state of Maryland has stated that it may not go forward with its plan to widen the American Legion Bridge and add toll lanes to I-495 and I-270 in Maryland.

"Maryland’s reconsideration suggests that this matter may present, in part, the proverbial bridge to nowhere," the residents said. "But far from reconsidering the revised project scope — or at a bare minimum, at least reanalyzing anticipated traffic flows in light of the changes on the Maryland side, Defendants instead are forging ahead as rapidly as possible to build this bridge to nowhere."

At Friday's hearing, a lawyer for Transurban said the company has no intention of stopping construction even if it decided to engage in discussions with the neighbors on the environmental effects of the project in the McLean area.

Brinkema responded that the developer would indeed need to stop construction if she ruled in favor of the motion for a preliminary injunction.

But the judge ultimately denied the motion for an injunction and said she believes Maryland's new governor, Wes Moore, will work to get the Maryland side of the project back on track.

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