Tysons Tunnel

For Immediate Release:
View this Press Release as a PDF file | View the Lawsuit as a PDF file

TYSONSTUNNEL.ORG SUES FOR COMPETITIVE BIDDING AND FEDERAL REVIEW
OF A TUNNEL FOR DULLES METRORAIL
Legal Challenge asks for Injunction Barring Action on Project until Review Completed

Tysons Corner, Va. (Nov. 27) —TysonsTunnel.org yesterday filed a lawsuit alleging that two federal agencies failed to ensure competitive bidding of the Dulles Metrorail project and did not adequately consider a tunnel under Tysons Corner as a “reasonable alternative”—actions that are required under federal law.

The lawsuit asks a federal court for an injunction until a competitive bidding process and a comprehensive tunnel review are conducted.

The legal challenge was filed in U.S. District Court for the Eastern District of Virginia in Alexandria. Named as defendants were the U.S. Department of Transportation (DOT) and its secretary, Mary E. Peters, as well as the Federal Transit Administration (FTA) and its administrator, James S. Simpson.

“We didn’t want to go to court but our hand was forced by DOT and FTA reluctance to hear our side of the issue,” said TysonsTunnel.org President Scott A. Monett. “We believe that through this lawsuit we will prove that both federal transportation agencies are required to ensure that the responsible choice is made regarding the allocation of taxpayer dollars and that a tunnel is given fair consideration prior to constructing the first segment of rail service to Dulles Airport. I believe we have an excellent chance to win an injunction and to win our underlying case.”

Concerned about potential traffic, noise, pollution and other disruptions to the Tysons Corner community, Ratner Companies decided to lend its voice to the issue. Its offices are situated along the alignment of the proposed aerial railway, located at the intersection of Route 7 and Spring Hill Road in Tysons Corner.

In the filing, TysonsTunnel.org charges that federal procurement requirements calling for “full and open competition in third-party procurements contained in Title 49 U.S.C. Section 5325 and FTA Circular 4220.1E were not followed. That U.S. Code section requires that “recipients of assistance…shall conduct all procurement transactions in a manner that provides full and open competition”. Meanwhile, the FTA Circular requires “all grantees—even state agencies—must comply with Paragraph 8(a)” which states, “All procurement transactions will be conducted in a manner providing full and open competition.”

In fact, the filing stated, the negotiation of the project’s design-build contract was done on a sole-source basis with Dulles Transit Partners LLC, a consortium of Bechtel Corporation and Washington Group International. There was no competitive bidding or competitive negotiation for the design-build contract, the filing asserted.

“DOT arbitrarily and capriciously, and otherwise not in accordance with law, approved the use of federal funds to pay for the project even though the procurement of the design-build contract was not conducted with full and open competition,” the lawsuit charges.

It also alleges that the defendants violated federal statutes requiring “the need to seriously and comprehensively consider reasonable alternatives to a major transportation project…that would impose fewer environmental impacts.” This requirement is established in Title 49 U.S.C. Section 5324 as well as in the National Environmental Policy Act (NEPA), the lawsuit contends.

Despite these legal obligations, DOT and FTA did not consider a Tysons tunnel a reasonable alternative even though each never concluded that the tunnel would fail to meet the Metrorail extension’s purpose or would be unreasonable, impractical or infeasible to construct. Additionally, the plaintiffs asserted in the filing that the federal transportation agencies in violation of NEPA failed to “treat the tunnel as a reasonable alternative even though they recognized the tunnel would have fewer environmental impacts than the aerial alternative.”

In stating their case that federal administrative procedure laws were ignored, the plaintiffs alleged among other things that one or both of the defendants:

Had not investigated adequately the cost of constructing a tunnel;
Did not study other alternatives as part of the final environmental impact statement;
Did not investigate the feasibility or cost-effectiveness of using large-bore tunneling technology;
Failed to conclude that a tunnel could not meet the project’s purpose and need or was impractical, infeasible or unreasonable;
Failed to adequately analyze the visual or noise effects of the aerial option and downplayed the impact;
Failed to analyze the significant multi-year, economic and traffic impacts on Tysons Corner;
Neglected to compare the long-term operation and maintenance costs of the tunnel and aerial alternatives;
Did not compare the life-cycle costs of both alternatives; and
Did not include in its analysis information developed by TysonsTunnel.org engineers and provided to DOT demonstrating that large-bore tunneling was a viable and reasonable alternative to the aerial option. (That information directly contradicted several key reasons DOT cited for not considering the tunnel alternative further, asserted the plaintiffs in the lawsuit.)

NEPA requires DOT prepare additional environmental analyses if new circumstances or information relevant to environmental concerns and bearing on the project, said Monett. “We intend to show in court that DOT was aware of information that a large-bore tunnel could be built through Tysons Corner at a cost equal to or less than the aerial option and with fewer environmental impacts,” he said. “We also will prove that despite this fact the agency failed to conduct an additional environmental analysis that would have established a tunnel as a reasonable alternative.”

In asking for an injunction, the plaintiffs challenged that these violated laws prohibit DOT from awarding federal funds to the Dulles Corridor Metrorail Project until a comprehensive review of a single-bore tunnel under Tysons Corner is completed by both federal agencies.

The plaintiffs asked the court to rule that DOT and FTA had violated federal procurement statues, NEPA and other federal statutes and to remand the Dulles Metrorail project to DOT to:

Reopen the NEPA process to analyze the tunnel as reasonable alternative;
Determine whether the tunnel is a “prudent and feasible alternative with fewer environmental impacts vis-à-vis the aerial alternative”; and
Enjoin the defendants from taking final actions or granting federal approvals, including acting on any application for the project to enter final design, full funding or award or allocate federal funds until DOT and FTA have complied with NEPA and other federal statutes.

In a related development, TysonTunnel.org President Monett earlier this month sent a letter to FTA Administrator Simpson asking that the agency defer approval of the Dulles Metrorail project until a competitive bidding process was completed that “fully” considers a tunnel under Tysons Corner.

“We appeal to the FTA to show leadership and creativity in allowing this project to ‘hold its place in line’ or ‘take a timeout’ while these two critical objectives are met for the benefit of the community and while other issues raised in the Department of Transportation Inspector General Report are addressed—issues that confirm the concerns TysonsTunnel.org has raised about the results of no-competitive bid on the final design and construction work,” wrote Monett.

Monett pointed out that there is precedent for this approach, most relevant the Seattle Central Link Light Rail Project, which encountered significant problems that were subsequently corrected in a “timeout” process.

The effort proved unsuccessful, leading to the lawsuit filed yesterday in federal court, said Monett.

TysonsTunnel.org represents an unprecedented coalition of community associations, small businesses, environmental groups, landowners, civic groups, homeowner associations, major corporations and private citizens calling for competitive bidding of the Metrorail extension to Dulles Airport and supporting construction of a tunnel under Tysons Corner.

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