Over several months, representatives from Utahns for Better Transportation, the Sierra Club and other groups have met with officials from the Utah Department of Transportation to reach a reasonable, negotiated solution to the longstanding Legacy saga. These negotiations took place, in part, at the request, and with the full support, of Gov. Jon Huntsman Jr.
The details of the proposed compromise remain confidential while discussions proceed. The joint citizen/UDOT proposal, however, embraces a win-win solution that would provide needed transportation within Davis County in a more environmentally sensitive way, and that would allow a modified version of the project to proceed expeditiously.
At the 11th hour, 59th minute of successful negotiations, Sen. Hatch tried to add to the federal transportation bill a secret "rider" that would have pre-empted the Legacy negotiations completely. No hearings, no public discussion, not even any formal committee vote.
After six months of deliberations between the House and the Senate on the transportation bill (which included no discussion about Legacy), Hatch asked conference committee leaders to slip his provision into the bill privately, just before it was printed.
Fortunately, other senators rejected this untimely effort. While Hatch claims that his Legacy rider was blocked by a few key "opponents in Congress," most members of Congress never even knew about the provision.
Hatch claims incorrectly that his rider "respected environmental concerns." The proposed language would have effectively exempted Legacy from every federal environmental law with a wave of the legislative magic wand. The rider would have allowed no more public or judicial scrutiny, regardless of how many laws might be broken.
Hatch also asserts that the project's initial environmental analysis was approved by a federal district judge. But he neglects to mention that three judges on the U.S. Court of Appeals unanimously overruled that decision. Indeed, the only reason Hatch sought his legislative fix is that the appellate court found that the project as originally submitted violated both the Clean Water Act and the National Environmental Policy Act.
To the extent that Legacy delays have cost Utah taxpayers money, as Hatch argues, it was the 10th U.S. Circuit Court of Appeals, not environmental groups, that found that the state suffered a "self-inflicted wound." Even when litigation was likely, the state signed a construction contract that forced it to pay penalty fees to the builder, and began construction while the plaintiffs sought an appeal of the district court decision.
It is also not true that "wildlife have yet to get their 2,000 acres" while the road itself has undergone re-evaluation. To its substantial credit, UDOT purchased the Legacy Nature Preserve and is in the process of restoring much of that valuable habitat and developing a management plan, working collaboratively with diverse interest groups.
The saddest part of this episode is the disheartening message that Sen. Hatch would have sent to every Utah citizen who cares about public health and the quality of our environment: "Don't try to compromise. Don't try to reach constructive, win-win solutions. No matter how successful the negotiations, if we can get away with it we will secretly slip in a last-minute legislative loophole while you sit at the bargaining table."
Environmental issues in Utah are all too divisive, often addressed by name-calling rather than constructive discourse. We will always face difficult environmental choices that affect our lives in very significant ways, and it is naive to think that we all won't continue to debate them passionately. But informed and respectful debate leads to better decisions.
The Legacy solution, which combines good ideas from the original project with other good ideas suggested by citizens, presents a valuable model for a more civil dialogue on these difficult issues. Utah's senior political leaders should embrace this rare example of cooperation and encourage all of us to address environmental problems collaboratively wherever possible.
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Robert W. Adler is the James I. Farr Professor of Law at the S.J. Quinney College of Law at the University of Utah and has worked with Utahns for Better Transportation and other groups on the Legacy issue.
