Tollway Suit Argued Before Appeals Panel : Courts: Judge questions environmentalists’ offer of alternatives to putting roadway through Laguna Canyon. Ruling is due later this year on whether new studies should be made.

A skeptical U.S. appeals court heard arguments Tuesday in a lawsuit by environmentalists to force a key federal agency to further study a planned 4.7-mile section of tollway that cuts through Laguna Canyon.

A three-judge panel from the U.S. 9th Circuit Court of Appeals heard Joel R. Reynolds, attorney for Laguna Greenbelt Inc., criticize an environmental study done on the roadway and offer several alternatives to the road’s cleaving the environmentally sensitive canyon. But the concept was questioned by one of the judges.

“If alternatives are proposed, is there anything in the law that says they have to be considered?” asked Judge Alex Kozinski, referring to federal environmental laws, which do not require agencies to adopt alternatives even when proposed in their own environmental studies.

The appeals court is expected to issue a ruling later this year in the suit, which charges that a federal agency did an inadequate environmental study of the project before giving its approval to the current route, which runs 17 miles between San Juan Capistrano and Newport Beach.

Work on the disputed stretch in the canyon was halted last September when a federal judge issued an injunction against construction in the canyon, so both sides could argue the outstanding issues in the courts.

Lawyers for the San Joaquin Hills Transportation Corridor Agency and the U.S. Department of Transportation, which want to build the disputed link between Newport Coast Drive and El Toro Road, countered the environmentalists’ claims by saying that numerous alternatives were considered by the agencies, and that many steps are being taken to protect the canyon’s ecology.

In addition, attorney John L. Flynn said that much of the habitat surrounding the proposed road through Laguna Canyon would be targeted for development today had it not been converted to a greenbelt as part of the controversial tollway.

“Thousands of acres of this greenbelt would not be committed to open space were it not for . . . this (toll road),” said Flynn. There was no dispute from Reynolds to Flynn’s argument.

Flynn maintained that the federal agency’s study was more than adequate.

Each side argued for 20 minutes before the panel, which also included Appellate Judges Wilfred Feinberg and Mary M. Schroeder. The case was argued at the end of the morning session in a mostly empty courtroom. There was a handful of environmentalists present to hear the give and take. After the hearing, both sides predicted the judges would rule in their favor.

Reynolds argued that the Federal Highway Administration, the agency of the Transportation Department that approved the tollway, failed to study the use of bridges, viaducts and tunnels as alternatives to leveling hills and filling ravines in the canyon.

Flynn countered, saying the tollway agency plans to build 78 structures, including bridges and animal crossings, in the canyon.

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In the courtroom, the environmentalists suggested that an acceptable compromise would reduce the number of lanes in the canyon from six to four. Reducing the number of lanes would mitigate damage to the environment and wildlife in the area, Reynolds said.

“Redesigning the project as a downsized facility would be beneficial, but there was never any discussion of it,” said Reynolds.

Eliminating two lanes would defeat the purpose of the tollway, Flynn answered.

“That’s simply not going to accommodate the volume of traffic required by (the project),” said Flynn. “It’s got to satisfy the demand for volume for which this project was designed.”

According to tollway agency figures, the toll road would accommodate 150,000 vehicle trips per day when it is completed by 1997. After the bonds that were sold to finance the $800-million project are paid off some time next century, commuters will be allowed free access to the road, and officials estimate that usage will then increase to 160,000 trips per day.

The court also did not appear impressed by Reynolds’ argument that the federal transportation agency erred in assuming that the tollway would be built when it did projections about the road’s impact on development and growth in the area.

Reynolds said the federal agency never analyzed the area’s growth without the toll road.

“They need to do projections that don’t include the toll road,” he said. “The road is on all of their maps.”

Flynn said it is impossible to calculate what South County would be like without the tollway, since the thoroughfare has been a part of the Orange County master plan since 1976 and its construction was a part of most development plans for the area.

“The (tollway) has contributed to growth. We have never denied that. But it’s impossible to say to what degree,” said Flynn.

U.S. Justice Department attorney Ellen J. Durkee, who represented the Federal Highway Administration, argued that environmentalists had an all but impossible task if they are trying to prove that the federal agency did not do an adequate environmental study.

“They’re going to have to prove that the (Federal Highway Administration) was wrong at every step of the way,” said Durkee. “That’s a lot of hoops to jump through.”

Tollway agency officials said the environmental review process took about 20 years, and U.S. Department of Transportation authorities in 1992 delayed approval of the final environmental report for 16 months while they consulted with other federal agencies.