Tollway Lawsuit Has a Chilling Effect : Public Agency's Legal Action Against Toll Road Opponents Sends the Wrong Message

The running battle between the San Joaquin Hills Transportation Corridor Agency and environmentalists who have been opposing construction of the 15-mile tollway has wound up in court again. This time, however, there is a rare switch. It's the public agency that brought the suit, dragging into federal court the four environmental groups and one individual who earlier had sued them in a challenge to the agency's environmental report to the state.

The agency's frustration with the relentless opposition from the environmentalists is understandable considering the years of hard work and planning that have gone into the agency's effort to ease the growing traffic congestion without doing damage to communities and open space.

But the serious issue the lawsuit raises really has nothing to do with whether the tollway should be built or scrapped, or the merits of the arguments on both sides of that controversy.

Rather, the question is whether a government agency, faced with legitimate opposition from community groups concerned about a public project, should sue those disagreeing with it, and also seek legal fees and court costs for the lawsuit.

The corridor agency says it filed the lawsuit seeking validation of the environmental impact statement for the toll road to "accelerate the legal process." The agency, having been sued before in state court, believes that its opponents would "at a date convenient to their own goals" again file legal action to try to kill the tollway project.

The defendants named in the lawsuit (the Laguna Canyon Conservancy, Laguna Greenbelt Inc., Save Our San Juan, Stop Polluting Our Newport and activist Elizabeth Leeds of Laguna Beach) see the action differently. The environmentalists made statements calling it a "malicious," and "bullying tactic . . . to stifle responsible citizen input." As a practical matter, the suit forces the issue into court when it might not necessarily have ended up there.

From a tactical point of view, attorneys always try to get the legal advantage. But in this kind of a case, in which a legitimate public disagreement is involved, what message is sent when a public agency sues those who disagree with its goals? The corridor agency's intent may not have been to intimidate, but its action easily can have that effect on legitimate dissent involving issues of rightful community concern. And it raises the chilling fear of how often the tactic might be used in the future to discourage public protest.

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