Legal wonks out there will appreciate this gem: Andrew Villeneuve at the Northwest Progressive Institute has a blistering takedown of Supreme Court Justice Jim Johnson’s dissent (PDF) in the Freeman case. Johnson, one of only two to vote against Sound Transit and WSDOT, largely framed his opinion around constitutional protections for drivers and cited the 18th Amendment extensively.
Andrew’s entire post is a treasure trove of transit legalese, so I’ll let it speak for itself. But I do want to pull out probably the single most important distinction in this entire case:
What the Johnsons do not acknowledge in their dissent – and what anti-rail conservatives either don’t get or won’t admit – is that the urban King County portion of Interstate 90 is not simply a highway. It is a multimodal corridor that contains a highway. And this distinction matters.
More below the jump.
One of the biggest arguments working in Sound Transit’s favor was that construction of the express lanes was paid for by federal funds, and done so under an agreement (.pdf) that high-capacity transit would one day have priority over those lanes. In other words, the design of the center lanes was for a multimodal corridor, one that would fulfill a multitude of purposes, highway, transit, and ped/bike alike.
I also want to make a couple of points about the lease of the center lanes to Sound Transit, which Andrew discusses near the bottom of the post. Justice Johnson asserts that WSDOT can’t lease any facility that is “presently needed,” based on his interpretation that the word “present” means “now” (i.e., this very instance). Two things:
- The 40-year airspace lease which allows East Link to take over center lanes does not go into effect until the start of revenue service. The determination of whether or not the facility is “presently needed” isn’t talking about the present time (i.e., now; as we speak) but what is applicable to the present time at that point in the future (i.e., the start of revenue service).
- When that does happen, the present need (i.e., a need for travel capacity) at that time will already be filled by both East Link itself and the addition of the outer HOV lanes. With that need filled, WSDOT has every right to carry through with the lease.
If Johnson’s interpretation of present need were the prevailing opinion, it would set an absolutely terrible precedent for state transportation policy. Agencies would be forced to make evaluations of future projects based on current travel conditions. This would fly in the face of everything we know about peak driving and the simultaneous rise in transit and ped/bike mode shares.
Luckily, the dissenting opinion was just that– a dissent. As Ben said last week, the majority opinion itself provides a very cogent, almost technical argument of why Sound Transit and WSDOT have every right to move forward with East Link. With that opinion ruling the day, we can finally look forward to Eastside rail with this last major political hurdle cleared.