The state Route 840 trial is history. Last Thursday, attorneys and their clients—and a virtual stampede of hard-core spectators—gathered in the Williamson County Courthouse for closing arguments. All that remains now is Judge Russ Heldman’s ruling. Both sides predict that the loser will ultimately appeal to the state Supreme Court.
Trial veterans greeted each other like old friends—waving and shaking hands—following the week-and-a-half hiatus since final testimony concluded. They exchanged news on who did and didn’t get poison ivy during Heldman’s court-ordered field trip over the 840 terrain. And reporters gathered on back benches to handicap just what the judge’s ruling would be and when he would make it. “It’s like a class reunion,” said Aubrey Preston, a seasoned trial-watcher from Leiper’s Fork.
Despite the camaraderie, however, a wide fault line divides the opposing sides. Heldman’s ruling will determine if the Tennessee Department of Transportation (TDOT) can proceed with the construction of 840 between Highway 100 and Thompson Station Road, a 16.6-mile stretch of a 185-mile ring road through the counties surrounding Nashville. In July, the judge issued a temporary stop-work injunction in response to a lawsuit filed by property owners in the path of the roadway, joined by the SouthWest Williamson County Community Association and the Heritage Foundation. The suit alleges that TDOT Commissioner Bruce Saltsman failed to enforce his department’s legally mandated standards for the planning and building of the southern loop of 840, including getting approval from the Williamson County Commission for all right-of-way acquisition.
In summarizing the 840 opponents’ case—which seeks a full environmental impact study for the road—attorney David Lemke reminded the court that state law requires the TDOT commissioner to establish “standards for construction” which give “due regard to the topography and natural conditions” of any road project. Lemke said TDOT’s environmental assessment (EA) for the southern loop of 840 flunked the “due regard” test, noting that the EA failed even to identify numerous streams and wetlands in the path of the roadway. Lemke attacked TDOT’s defense, which hinges on a definition of “standards for construction” that applies only to the design-and-build phases, not to road planning. “That’s like defining the baking of a cake as just putting it in the oven.”
Lemke said the construction process for all highways, in fact, includes feasibility studies to determine the need for roads and their costs. That process also includes impact studies to decide where roads actually will be built and how—by using bridges versus culverts, for example—to minimize negative environmental and social impacts. The attorney pointed out that a TDOT witness admitted that road planning is “inextricably intertwined” with design and building. Lemke concluded that TDOT was “arbitrary and capricious” in not performing a detailed impact study—violating its own policies and procedures manual in the process—because such a study would take too much time. “If this manual had been followed,” Lemke said, “we wouldn’t be here today.”
Attorney Julian Bibb, who represents the Heritage Foundation, spoke of the broader principles of the case. The former English major eloquently summarized “the overriding issue here” as “one of trust and accountability.” Bibb pointed out that the legislature mandates standards for TDOT performance “to safeguard the interests of the public”—that state roads not only have the approved concrete mixture and lane widths, but that taxes be spent wisely on roads built in a manner that does not damage the natural and cultural integrity of a community. “The purpose of an environmental impact statement is not to frustrate TDOT, but to protect the citizens. Why has the commissioner shortchanged them?” Bibb asked.
“What happened here is that convenience replaced true efficiency, and citizens of Williamson County came to believe that arrogance had replaced due process,” Bibb concluded. “The builders of highways have incredible powers to destroy a community—its environment and its heritage—or to bring economic opportunity and prosperity.” Bibb asked Heldman to make TDOT follow its own standards for an environmental impact study “to balance the competing interests of [the] public and government and build back the public trust.”
The state’s lead counsel, Phyllis Childs, also spoke of power during her summation—the power resting in the hands of Commissioner Saltsman and TDOT. She explained that the commissioner’s duty to establish “standards for construction” is a “discretionary duty” and that the legislature didn’t outline “specific standards” for the commissioner. In other words, she said, the commissioner has the power “to use his judgment.”
Childs reiterated the state’s tortuous distinction between standards and policies, and said TDOT followed department standards and used its discretionary power to interpret department policies. She admitted that Saltsman was aware that the Williamson County Commission had not approved all the right-of-way acquisitions in the county, but explained that the commissioner also “knows that he has the power to exercise eminent domain,” which gives TDOT “the power to acquire land and construct highways.” Asked by Heldman whether eminent domain is more powerful than TDOT’s policies and procedures manuals, Childs said, “If [the commissioner] has the power to make a requirement, he has the power to take it away.”
After summations, the judge tried three separate times to get the state to agree to compromise or mediation, and three times Childs said “No.” The judge explained that whatever he ruled, it was “crystal clear” that either side would appeal. He noted that the appeals process averages two to five years, and that TDOT witnesses had testified that an environmental impact statement, by comparison, could take one year to produce. The judge questioned the “cost effectiveness” of the state’s insistence on fighting its way through the courts, when “appeals could take more state resources. The public interest may demand, when there is a whirlwind of discussion about state tax issues, that an environmental impact statement be performed when appeals could take longer.”
Lemke and Bibb said that those who sued to halt 840’s southern loop would agree to neutral mediation. Childs’ final answer was that “in some instances, mediation is not appropriate,” explaining that “there’s a lot at stake for the department.”
What’s really at stake is the TDOT culture—whose implicit motto is “Big Brother Knows Best” and that is dominated by special interests: road builders, concrete suppliers, the petroleum industry, real estate developers, and home builders.
If Heldman rules for the 840 opponents, and he is upheld on appeal, it could establish a higher standard of accountability for TDOT. In the future, the department might actually have to prove that a road is needed, that the road would deliver the traffic and economic benefits TDOT officials promise, and that those benefits would outweigh the impacts on the state budget; on planned growth and land use; on natural, cultural, recreational, and historic resources; on air and water quality; and on travel patterns.
If TDOT had been subjected to such a burden of proof for 840’s southern loop, its officials might have been forced to acknowledge that, in terms of transportation planning, 840 is a fossil. Anyone who bothered to look at Atlanta or Cincinnati, Columbus, Ohio, or Washington, D.C., should realize that ring roads make for sprawling patterns of development, greater congestion, and more air pollution, and that they have a crippling impact on the traditional downtowns of the large cities and small towns they bypass.
By refusing to compromise on 840, TDOT sends a clear message to the citizens of Tennessee that, if they object to the whys and hows of a road plowing through their community, they must be willing to give a whole new definition to the term Tennessee “volunteer.” They must be determined enough to spend years of their own time, asking many questions and getting few answers—just as the citizens of southwest Williamson County have done. They must recruit attorneys—like Lemke and Bibb—willing to serve without pay on a case that, on the open market, would cost a minimum of $250,000. They must be able to swallow out-of-pocket costs—for video documentation, transcripts, depositions, and copying—of $50,000. And they must find a judge who’s willing to listen.
