The lawyer for a group trying to halt further work on the South Mountain Freeway said he is encouraged by the latest order handed down by an appellate court panel.
The U.S. Court of Appeals for the Ninth Circuit last week ordered that Protect Arizona’s Resources and Children should identify areas in Ahwatukee that would be subjected to blasting before a panel of judges hears oral arguments in the case on Oct. 19.
“I took the order as a very good sign,” PARC attorney Howard Shanker said. “It means that somebody is actually thinking about the environmental harms we are alleging. They also gave us an open-ended invitation to make our reply brief as long as we want.”
The reply brief involves responses by PARC and the Gila River Indian Community to briefs filed last week by federal and state highway agencies that asked the court to reject a request for a temporary halt of bridge work and blasting in Ahwatukee until the appeal is decided.
Lawyers representing the Arizona Department of Transportation and the Federal Highway Administration said “no damage to nearby structures will occur” from blasting tentatively scheduled this month in areas west of 24th Street and beyond Desert Foothills Parkway.
Both Ahwatukee-based PARC and the Gila Community have claimed that bridge work and the impending blasting will irreparably damage the environment along the Pecos Road corridor.
Both groups and other environmental organizations are appealing a federal judge’s ruling in July 2016 that cleared the way for the $1.7 billion project to begin.
The 22-mile freeway will connect the 59th Avenue I-10 interchange in the West Valley with the Chandler Interchange, giving an estimated 140,000 vehicles a day a bypass around downtown Phoenix and chronically congested Broadway Curve.
“This court has expressly declined to adopt a rule that any potential environmental injury automatically merits an injunction,” the Arizona Attorney General’s Office said on behalf of ADOT.
It said PARC sought “a third bite of the apple” to stop the work, referring to denials of previous injunction requests by both the appellate panel and U.S. District Judge Diane Humetewa.
“The only change since this court’s prior ruling is that the previously disclosed construction in the Pecos Road Segment is further along,” the attorney general said.
“The blasting activities will be conducted in accordance with stringent regulations adopted by the City of Phoenix and recommended by the U.S. Bureau of Mines,” it said, citing an expert’s testimony that “no damage to nearby structures will occur.”
“Controlled rock blasting using modern technology and methodology ensures that ground vibrations are well below thresholds that could result in even cosmetic cracking,” it added. “Crews will monitor all controlled blasting activities to ensure that such activities do not result in any harm to structures.”
The agencies also warned that even a temporary halt in construction of the freeway, scheduled to open in late 2019, “has the potential to cause substantial harm to the public.”
“The harms to the public include an increased cost to the public of $188,000 for each day the project is delayed; increased costs to the traveling public in the form of additional travel time delays; delay of project benefits, including improved regional air quality, reduced energy usage, reductions in greenhouse gas emissions, increased traffic safety, and projection of cultural resources.”
They also contended that as many as 9,900 jobs would be affected, although the actual number of construction workers totals around 1,400.
“These harms are in stark contrast to the insignificant and speculative harms claimed by PARC,” the attorney general said.
They also said PARC knew blasting would occur and that it “never asserted injuries from blasting or bridge construction in its earlier motion, or at any time in the eight months since that motion was denied.
“PARC’s tardiness in alleging injuries from these planned activities undercuts its plea for urgent action by this court,” the attorney general said.
The agencies’ lawyers also noted that “construction commenced on Sept. 12, 2016 with elaborately sequenced activities common to highway projects – surveying, utility identification, plant salvage, clearing, grading, utility relocations, paving, drainage, retaining walls, noise walls and bridge construction.”
The court did not indicate when it might rule on the injunction request, but said that any reply by PARC and the Gila Community to the government agencies’ assertions “shall specifically address the location of the blasting that is anticipated to take place before the scheduled oral argument.”
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