Ambassador Bridge company's plan for new parallel span takes hit in US court

April 11, 2012
By Peter Samuel

The Ambassador Bridge company's plans for construction of a new parallel span next to their 82 year old suspension span took a hit last week. Avern Cohn a US District Court judge rejected the bridge company (DIBC) challenge to the federal permitting of the downriver bridge (known as DRIC or NITC) proposed by the state of Michigan and the Canadian government. DIBC was joined in the challenge by several groups representing minorities in the vicinity of the bridge and its approaches. Their appeals were also rejected.

The DRIC is proposed just under 2 miles, 3km downriver of the Ambassador Bridge and with its own separate border processing plaza facilities and connections to expressways on both sides - a hugely expensive project.

Cohn in a 49-page judgment noted the vast number of studies (over 100) and pages of documents (130,000 called the 'administrative record') supporting the selection process and permitting. He called the eight year long process by which the downriver plan was approved "reasoned" and "exhaustive."

Canadian opposition rightly considered

The bridge company maintained that the project selection process wrongly eliminated its 'parallel span' or 'twinning option'  from consideration. 2003 to 2005 in early studies the Parallel Span ranked high on the US side of the river. But late 2005 FHWA said it should be dropped because of difficulties on the Canadian side - this would create "significant community disruptions and environmental impacts" in the expanded plaza needed in Windsor, and in providing expressway standard connections to the H401. FHWA also said the parallel span failed to satisfy US needs for "redundancy and economic security."

The draft EIS of February 2008 included the parallel span replacing the existing Ambassador Bridge in a 'No Build' category. As such it was deemed unacceptable since extra capacity was an objective established at the outset of the planning.

In November 2005 FHWA officially dropped the Parallel Span as unacceptable to the Canadians, and not satisfying US requirements for full expressway connectivity end-to-end or providing redundancy.

Not role of court to second guess government decision

The Judge ruled that the role of the court was not to second guess the actual decision of the government agency, just to check it had considered a reasonable range of alternatives and had not acted arbitrarily or capriciously. Cohn said the selection of the DRIC was part of a "reasoned  and deliberative process."

Both countries respected each other's environmental reviews and wanted not to unduly burden the other. What the judge called "principles of comity" between countries under customary international law made it quite proper for the US to take seriously Canadian  objections to the Parallel Span.

To the bridge company's argument that FHWA used "grossly exaggerated" traffic forecasts the Judge expressed no view saying simply that they were "entitled to substantial deference and are only subject to a reasonableness review."

The court was "neither required, equipped or inclined to resolve fervid disagreements between the parties over technical analysis" it said citing another court precedent.

A bunch of witnesses said the FHWA forecasts were reasonable.

Traffic

Traffic data for 2008 was low but 2007 was "within the low range of the DRIC forecast."

Judge Cohn dismissed a pessimistic investment grade traffic and revenue forecast sponsored by the Canadians which showed it unlikely private investors would see the DRIC as viable. He called it "a wholly different inquiry from whether capacity is needed...or whether there are policy considerations supporting a second crossing."

FHWA's decision not to consider the financial non-viability of the bridge was "not an abuse of discretion," Cohn ruled.

On current congestion and delays the judge accepted the bridge company proposition that customs processing is the major bottleneck but that new bridge capacity was shown to be needed "well within the 30 year window for the needs assessment."

The parallel span failed to provide desired redundancy because it would share plaza areas and ramps to expressways.

Cohn summed up his rejection of the bridge company complaint: "Overall, deference to the agency's definition of Purpose and Need is appropriate. The Court finds nothing in the Purpose and Need statement which is unreasonable."

COMMENT: Judge Cohn says repeatedly that "deference is appropriate" which is another way of saying he isn't inclined to question the judgment of government officials.  In that case any appeal to him of this kind is pointless.  And perhaps the courts are not the right place to determine these issues.

Interestingly the Judge did accept that (1) customs processing is the only present border bottleneck, (2) that the DRIC may well be non-viable financially and (3) extra capacity will only be need at some point in the next 30 years.

There is therefore no urgency about building it.

That's not surprising given the modest traffic volumes here relative to crossing capacity. Blue Water Bridge has 6 lanes, the Detroit Windsor Tunnel 2 lanes, Ambassador Bridge 4 lanes, for a total of 12 lanes.

A traffic lane routinely carries 10,000 vehicles/day so there's capacity for 120,000 vehicles per day at the Ontario-Michigan border.

With another six lanes downriver there would be capacity for 180,000.

Forget all the forecasts. Actual traffic at the three MI-Ont crossings is presently about 50,000/day so there is huge spare capacity now and surely for the next ten or 15 years even with good growth. Not only will the addition of extra capacity be itself non-viable financially, it will undermine what financial viability the three existing crossings have.

They'll all lose money with so little traffic to spread across so much capacity and the debt that it took to build it.

Maybe extra capacity in the form of the DRIC will be needed at some future point after years of sustained growth in border traffic, but in 2012 and at least for the rest of the decade it's  thoroughly premature.

Michigan's legislature at least deserves credit for punting on this. And public opinion in the state is skeptical, rightly so.

TOLLROADSnews 2012-04-10

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