Institute plans to sue CDOT over U.S. 36

BOULDER – The Boulder-based Drive SunShine Institute has announced plans to file a lawsuit against the Colorado Department of Transportation on Wednesday in hopes of halting a contract that covers the private management of U.S. Highway 36 for the next 50 years.

The lawsuit is being filed on the grounds that CDOT failed to do a complete Environmental Impact Assessment on the U.S. 36 Express Lanes Project that is under way between Denver and Boulder. The charge is one that CDOT spokeswoman Amy Ford on Tuesday said is unfounded.

In addition to filing the lawsuit Wednesday, Drive SunShine is leading a protest of the contract at CDOT headquarters, where CDOT’s High-Performance Transportation Enterprise board will be meeting to review the contract with Plenary Roads Denver. The group will also deliver a petition supporting public ownership of U.S. 36 to U.S. Department of Transportation officials.

CDOT’s Express Lanes Project adds a new toll lane to U.S. 36 in each direction between Boulder and Denver. The lane will also be used for Bus Rapid Transit and carpool vehicles carrying three or more people. The project also refurbishes the existing general-purpose lanes and adds a commuter bike lane.

Plenary Roads Denver was chosen in April through a bid process to manage the highway and collect tolls on the new express lanes. But the contract defining the public-private partnership has come under fire recently by lawmakers and citizens who say there was too much secrecy surrounding the deal.

Specifically, people have been upset about aspects of the contract that raise the definition of a high occupancy vehicle from two to three people as it relates to being able to use the toll lanes for free, as well as the fact that tolls for a round trip from Boulder to Denver could rise to as much as $28.

Drive SunShine officials could not be reached Tuesday. But in a press release they said that deterrents like the potential for high tolls and the tightened definition on HOVs could decrease the public’s carpooling efforts and actually increase environmental impact caused by the new project.

“The bottom line is that the 2009 Environmental Impact Assessment for the US 36 project is seriously flawed,´ said Ken Beitel, a clean energy analyst for Drive SunShine. “A deficient EIA that actually increases carbon emissions on U.S. 36 means that federal tax dollars in the form of TIFIA loans cannot by used to support the U.S. 36 privatization project.”

CDOT funded Phase 1 of the project – running from Interstate 25 to 88th Ave. – with a combination of money from CDOT itself, the Regional Transportation District, the Denver Regional Council of Governments, and federal Transportation Infrastructure Finance and Innovation Act program loans.

Phase 2, from 88th Ave. to Boulder, is also slated to receive TIFIA financing. And Ford said Plenary Roads Denver will be assuming the TIFIA debt for both phases as part of the management contract.

Ford said CDOT went through the necessary process for the environmental studies required for receiving such funds.

“Certainly it was a very extensive and expansive process that was overseen and approved by the federal government,” Ford said.

Ford said CDOT officials don’t believe the lawsuit will slow down the financial close of the contract with Plenary Roads Denver, which is still slated to take place by the end of this month.

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