Arkansas Times
Richard Mays fights pigs, pollution
and
plans for bigger highways
The blight-buster.
By Leslie Newell Peacock @eyecandypeacock
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- WORK ON I-630 WIDENING: Mays failed to get an injunction against the project that started last week. He took issue with the highway department's exclusion from doing an environmental assessment.
For reasons that will perplex and surely distress the people who come after us, the folks who fight to keep our air and water clean and limit the degradation to our natural world are usually on the losing side of that fight. Developers, the side with the money, usually win, thanks to prevailing philosophies that money is almighty and people have dominion over the earth.
Still people fight for a healthy environment, and when they do, they hire Richard Mays, considered by those who work with him to be unparalleled when it comes to understanding the National Environmental Policy Act and how business interests try to get around it. "He's one of the top [attorneys] by far, in the state if not the region," said Judge David Carruth of Clarendon, who worked with Mays to halt the Grand Prairie Irrigation Project until it could be designed in a way that would not harm the White River. "He's probably one of the most knowledgeable guys on water issues," said Glen Hooks, the director of the Arkansas chapter of the Sierra Club, who worked with Mays to ameliorate the detrimental effects of the Turk coal-fired plant in Southwest Arkansas.
In North Arkansas, it's the monitoring of the pig farm on a creek that feeds the Buffalo National River that keeps Mays busy. In Russellville, he's known as the man who's helped delay for nearly 20 years a slack-water harbor and transportation hub the city hopes to build on the Arkansas River, in a floodplain south of town.
In Little Rock, it is highway widening that has people knocking on Mays' door.
Two weeks ago, Mays filed a request in federal court for a temporary injunction against the Arkansas Department of Transportation's project to widen two-and-a-half miles of Interstate 630 from six lanes to eight. The project will cost $87.3 million and require the demolition and reconstruction of three bridges between University Avenue and Baptist Health. The highway department persuaded the Federal Highway Administration that no environmental study was needed on the project. Mays, attorney for plaintiffs David Pekar, George Wise, Matthew Pekar, Uta Meyer, David Martindale and Robert Walker, argued that the project didn't qualify for such an exclusion. Federal Judge Jay Moody denied the request for an injunction, and the widening project has begun.
You win some; you lose some. In 2004, federal Judge G. Thomas Eisele ruled against Mays and Carruth in their attempt, on behalf of the Arkansas Wildlife Association, the National Wildlife Association and others, to enjoin the Grand Prairie project to pump water from the White River to irrigate 250,000 acres of thirsty rice fields. The 8th Circuit Court of Appeals later denied their appeal of Eisele's ruling.
But in 2006, federal Judge William R. Wilson ruled with Mays and Carruth, ordering the U.S. Army Corps of Engineers to halt construction on a pumping station that was part of the $319 million project until it could better study the impact of pumping on the ivory-billed woodpecker newly discovered on the Bayou DeView.
"You just have to keep fighting, keep pushing back," Mays said in an interview last week. "You don't want to stop development, at least I don't. People have to eat ... [but] that doesn't mean you have to trash the environment."
Carruth said he told Mays at the time that he wished the courts had ruled on the merits of their argument — that pumping water from the White would lower water levels and endanger wetlands, fish and other wildlife downstream "and that it cost too much money." Mays responded, "Instead, you gave them the bird."
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Gordon Watkins, president of the Buffalo River Watershed Alliance, which hired Mays to represent it before the Arkansas Department of Environmental Quality in cases involving the controversial C&H hog farm near a creek that feeds into the Buffalo, said it's more than Mays' expertise that's important to his group. "Lawyers can do whatever their clients ask, but to find a lawyer who actually believes in your cause is important to us, [someone who believes] we were right and would represent us with that in mind. His mind was in the right place; his heart was in the right place."
Mays, 80, who has been an environmental lawyer for 40 years and worked for the Environmental Protection Agency for eight years in Washington, D.C., said he takes on such cases "because of the desire and the need to protect and help the world, if you like." He said his eight years at the EPA were some of the best years of his life. "I felt like I was really doing something I was philosophically interested in and wanted to do."
Mays attributes his desire to protect the natural world to his childhood in El Dorado. "When I was growing up, my father would rather be hunting or fishing than anything on earth," Mays said. His father owned a grocery store, but on the weekends, "he would be out on the river or in the woods, and I was usually with him." And from his mother, he inherited an appreciation for literature and writing, "so that turned out to be a pretty good background for being an environmental lawyer," Mays said.
Mays works in Little Rock (at least) two days a week, at the Williams and Anderson law firm. He commutes from his home at Eden Isle on Greers Ferry Lake. The case he won there, he says, is the one he's most proud of, since it concerned his backyard — literally.
Mays moved back to Arkansas in 1998 after 20 years in D.C., buying a home on Eden Isle. He chose the area because of Greers Ferry Lake and the Little Red River. Right after he took up residence there, the Corps of Engineers proposed a shoreline management plan that would open up the undeveloped main lake to boat docks. The lake is zoned, with boat docks in the coves only and the main body of water reserved for public recreation. "It's unbroken shoreline," Mays said, "with not a whole lot of boat docks and clear water, clean water."
Mays was thinking it was a bad idea, and so was Carl Garner, the retired resident engineer who had worked at the lake since its construction began in 1959, a man so connected to Greers Ferry Lake that his name appears on the visitor center there. Garner called Mays on the advice of a mutual friend and Mays invited him over. "I expected to see somebody walk in, a whip-cracking authoritarian type, somebody who looked like George Patton with jodhpurs, and there this guy walks in and looks like Ichabod Crane," Mays said of Garner, who died in 2014. They became good friends and with other residents formed Save Greers Ferry Lake, which hired Mays to file a preliminary injunction against the Corps' plan. He won, and the plaintiffs and the Corps eventually settled. Greers Ferry Lake remains mostly undeveloped.
It may seem like such a victory — for aesthetics — isn't as important as, say, keeping the highway department from doubling the size of I-30 through downtown Little Rock or a coal plant from spewing mercury into the air. There were arguments to be made about increased water pollution on the lake. But protecting the lake was "a personal thing," Mays said. It was important to his family and others, "a place where you go to feel refreshed."
"People can get very caught up, and justly so, in a place where they can feel like they are in communication with nature, with God, if that's what you're into. That's what makes environmental law practice so interesting to me. I feel like it's preserving things we need to have."
That kind of emotion and love for place is what saved the Buffalo River from being dammed and what keeps its advocates fighting to keep the beautiful national treasure clean.
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Mays said he figures he gets a good outcome in his cases about half the time. Environmental cases are "very difficult" to win, he said, because "courts give considerable deference to agency decisions. If you're trying to overturn ADEQ or EPA or the federal highway administration, you're fighting an uphill battle."
Settlements are hard to get as well, Mays said. But that's what he got when he fought the Southwestern Electric Power Co.'s coal-fired Turk Plant in Fulton. The Sierra Club and the Audubon Society, both national and the state chapter, challenged the plant's water permit from the Corps of Engineers in 2010 and won an injunction. But that was just a portion of the plant; construction continued. Still, with the conservationist's good outcome on the injunction, SWEPCO agreed to a settlement that would allow it to complete the plant. In return, the company fitted the plant with more equipment to reduce emissions and agreed to shutter another coal-fired plant in Texas sooner than planned.
Mays' 50-50 record held true in a hearing last week before the Arkansas Pollution Control and Ecology Commission for ADEQ, when Mays (on behalf of the Buffalo Watershed Alliance) and Sam Ledbetter (representing the Ozark Society) suggested that newly appointed Commissioner Mike Freeze recuse from decisions on C&H. They cited Freeze's emailed comments on C&H's permit application in 2017 in support of the hog farm — in which he wrote "enough is enough" in the permitting process — as evidence the commissioner could not be impartial. The commission, however, voted to support Freeze's refusal to recuse.
But after Mays and Ledbetter argued later in the same meeting that the administrative law judge for the Commission was correct in his finding that the hog farm's extended permit wasn't perpetual, the Commission agreed, voting to support the administrative judge. It was a win for conservationists and a win for Mays. Mays told the Commission that the lawyer for the hog farm had tried to make a silk purse out of a sow's ear. The ADEQ previously denied a second permit for C&H. The hog farm appealed that decision and can continue to operate while an administrative law judge considers the appeal.
So while an outright win may be hard to get, fighting wide roads and coal plants and hog waste on various fronts, including noncompliance with the National Environmental Policy Act, also helps delay the degradation, and "you may be able to wear them [the opponents] out," Mays said, or national policies may change that may hinder the project. That was the case in the Grand Prairie Irrigation Project: When Judge Wilson issued the order requiring study to protect the bird, the federal government had already pulled funding for the project. (The project continues, but with a greater dollar burden on the state and the encouragement of conservation strategies by farmers.)
More often, however, the development side of the equation in litigation has more money and more lasting power.
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Many people who haven't previously been wrapped up in environmental cases are now, thanks to the potential impacts of the 30 Crossing project, the highway department's plan to replace the Interstate 30 bridge and widen I-30 for a little over 7 miles at a cost of $630 million. ARDOT wants to double the width of the interstate through downtown Little Rock by building two connector-distributer lanes on either side of the highway to provide exit from and entrance to I-30.
When I-30 was built in the 1950s, neighborhoods east of the interstate fell into decline. That area, buoyed by the Clinton Presidential Center and Heifer International, is now experiencing a renaissance, with a new school, new restaurants, new housing and new businesses. Its progress follows the revitalization of the west side of the interstate, with the old downtown resuscitated by the River Market district and new development attracted to Main Street north and south of Interstate 630.
- The logic behind 30 Crossing, says its foes — and there are many in Little Rock — is outdated. The transportation design ignores alternatives to using downtown Little Rock and North Little Rock as the main thoroughfare to highways north and south. It does not contemplate alternatives to cars, such as public transit or bicycle and pedestrian transportation. While cities such as Portland, Ore.; Rochester, N.Y.; Milwaukee; Boston; San Francisco; New Haven, Conn.; Seattle and Dallas are tearing down interstates and replacing them with people- and business-friendly boulevards and parks, Little Rock and North Little Rock are about to get more concrete.
Opponents of highway widening — including neighborhood associations, downtown residents, a retired Texas transportation executive and a retired economist and natural resource planner — have hired Mays to represent them should the Federal Highway Administration issue Finding of No Significant Impact (FONSI) in its evaluation of the Environmental Assessment on 30 Crossing to green-light the highway project. That finding could come as early as mid-August, according to the highway department.
On July 27, at the end of a 45-day public comment period on ARDOT's draft Environmental Assessment, Mays filed a 16-page comment challenging, among other things, the department's traffic modeling and its ignoring the indirect impact of induced travel on communities outside the project area. It notes the lack of consideration of HOV (high-occupancy lanes) lanes or other routes to handle the rush hour traffic that ARDOT gives as its reason for widening and its failure to "fully address" health effects from air pollution caused by increased traffic.
The comment also suggests that Arkansas — which has the 12th largest highway system in the country, with more highways to maintain than Illinois, California, New York and Florida — struggles to maintain the roads it has now. It points to a column written by state Highway Commissioner Alec Farmer in Arkansas Talk Business in which Farmer says ARDOT needs $400 million in new highway funds simply to maintain what is built now, and that revenues from the gas tax will decline as more electric cars are built.
Mays said that the 30 Crossing project presents "an opportunity to force the agencies involved — state and federal — to take a hard look at updating the thinking toward highway traffic, how to handle highway traffic by means other than simply putting more lanes on the highway. I believe we're on the cusp of a breakthrough on technology that will affect our highway travel dramatically."
The 30 Crossing widening is designed to address traffic in "design year" 2041, when ARDOT says 153,000 vehicles per day will use I-30. The highway department's preferred model, six lanes of through traffic and four collector-distributer lanes, would allow cars traveling south on I-30 during afternoon rush hour to travel at 30 to 50 miles per hour (considered a "somewhat congested" situation). That suggests there will be two decades of smooth sailing through Little Rock, no rush hour traffic at all.
"It's ridiculous to think that you can predict that far," Mays said. "It's a total mistake to do [the widening] at this time. It was the thing to do in the '50s and '60s, but not now," given the technology — like self-driving cars and new safety-features being built into vehicles — that will be available in not too many years from now.
What we don't need, he said, is to spend nearly a billion dollars on highway projects in Central Arkansas in the anticipation of a transportation future we can't predict.
The highway department, using funds from a $1.8 billion bond issue funded with a tax increase approved by voters, is spending nearly $90 million on the widening of I-630 (three times its estimated cost), which has already started; an estimated $80 million on widening Highway 10 (previously estimated at $58 million); $23 million on new ramps at Highway 10 to I-430 northbound; and a figure estimated a couple of years ago at $630.7 million on 30 Crossing.
(Dale Pekar, who is one of Mays' clients, raised the issue of cost in his public comment on ARDOT's draft environmental assessment. ARDOT says if construction — which is being combined with design — costs more than the funds available to the project, contracts will be let "at a future date" to complete the project. Pekar said that provision "makes the entire analysis unreliable," and if ARDOT comes up short, it should take it from low-priority projects — which is what it threatened Metroplan it would do if the planning agency didn't agree to add lanes to the corridor.)
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"I'm not opposed to spending money in this area," Mays said, "but I don't know how the people in the rest of the state feel about it. It seems to me we ought to be thinking about how we can get more value [from the $1.8 billion total] for a longer period of time, rather than more lanes that may or may not be used in 20 years."
It's no surprise the highway department wants to build highways rather than think about transportation holistically. (ARDOT used to be the Department of Highway and Transportation, but recently dumped Transportation from its name, perhaps to fend off suggestions it thinks differently.) "It's a matter of mindset. This is what they get paid to do." Figuring into that is what Mays called "bureaucratic inertia."
"Sometimes you have to force their attention by filing lawsuits. I've found that, sometimes, litigation is the best way to bring about change ... or at least, to get their attention."