The Controversy Over the Legacy Highway in Utah: an Opportunity for Lnvitational Rhetoric T

Barry University School of Law Digital Commons @ Barry Law Faculty Scholarship 2007 The onC troversy Over the Legacy Highway in Utah: An Opportunity for Invitational Rhetoric Carlo A. Pedrioli Barry University Follow this and additional works at: https://lawpublications.barry.edu/facultyscholarship Part of the Environmental Law Commons, Legal History Commons, and the State and Local Government Law Commons Recommended Citation Carlo A. Pedrioli, The onC troversy Over the Legacy Highway in Utah: An Opportunity for Invitational Rhetoric, in WILDERNESS, ADVOCACY, AND THE MEDIA: PROCEEDINGS OF THE EIGHTH BIENNIAL CONFERENCE ON COMMUNICATION AND ENVIRONMENT 326 (Kevin DeLuca ed., 2007) This Article is brought to you for free and open access by Digital Commons @ Barry Law. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Digital Commons @ Barry Law. t Proceedings of the Bth Biennial Conference on Communication and Environment t t The Controversy Over the Legacy Highway in Utah: An Opportunity for lnvitational Rhetoric t Carlo A. Pedrioli, J.D. University of Utah I Disagreements over how best to relate to nature and its resources can lead to charged rhetorical I exchanges among stokeholders, and Utah has been no exception to this type of conflict. Beginning in the mìd-L990s, residents of the state began to qrgue over the merits of the "Legacy Highway," a large highway that would run near the Great Salt Lake in qn attempt to alleviate the clogged commute on Inlerstale-l5, which passes north/.south through Salt Lake City. Given the extensive rhetoric in the controversy, lhis I paper suggests invitational rhetoric as an alternative approach to help improve the discourse. I Disagreements over how best to relate to nature and its resources can lead to charged rhetorical I exchanges among parties who are concerned primarily either about the environment or about using nature's resor¡rces for human benefît (Peterson & Horton 139). Utah has been no exception to this type of conflict. Beginning in the mid-1990s, residents of the state began to argue over tåe merits of the "Legacy Highway," alarge highway that would run near the Great Salt Lake in an attempt to alleviate the clogged commute on I Interstate-15, which runs north-south through Salt Lake City, the state's capital. Perhaps not surprisingly, environmental groups were upset with this proposed govemmental project, and groups like the Sierra Club, Stop the Legacy Highway, and Utahans for Better Transportation faced off against Advocates for Safe and Efficient Transportation and the Utah Department of Transportation. Generous amounts of rhetoric, I including public discussion and litigation, resulted from this controversy. At stake for Utah's residents were both transportation and environmental issues. In light ofthe extensive rhetoric in this controversy, this paper suggests invitational rhetoric as an I alternative approach to help improve the discourse involved in the ongoing disagreement over the Legacy Highway in Utah. Sonja K. Foss and Cindy L. Griffin deftne invitational rhetoric as "an invitation to understanding as a means to create a relationship rooted in equality, immanent value, and self- determination" (5). One of the benefits of invitational rhetoric is that it can help parties work towards I developing ongoing relationships (Mallin & Anderson 130-31), which could be useful in the case of the parties to the Legacy Highway conflict since both major sides have to co-exist with each other in Utah. Hopefully, an invitational approach would allow parties to open doors to new possibilities rather than I keeping open the same doors that have led to repeated clash. The paper will advance its thesis via several sections, including a more detailed statement of the conflict, methods employed in the study, discussion. of the rhetorics of the two major sides in the conflict, an explanation of invitational rhetoric, and an t application of an invitational approach to the environmental conflict at hand. Each section will receive consideration in turn. Statement of the Conflict I The controversy began with intensity in 1996 when then-Governor Michael O. Leavitt of Utah annor¡nced plans for what he called the Legacy Highway ("Legacy Parkway"). The Highway was I supposed "to be a four-lane, divided, limited access, state-funded highway" that would run from near Salt Lake City north along the eastem shore of the Great Salt Lake and connect with U.S. 89 (Utahnsþr Better Transportation v. (J.5. Deparlment of Transportation 116l). The aim was to alleviate strain on the north- I ; Pedrioli 327 ; south commute along Interstate-15, whioh is the only major north-south corridor that runs through Salt Lake City and the surrouncling communities. Estirnates were that by 2020, the population and travel delnand in thaf particular area, which consists offive counties, would increase by 60 percent and 69 percent : each (Utahns v. U.S. Depart. Trans. l16l). V/hile transportation issues have been one aspect of this conflict, environment¿rl issues have been anofher aspect. Specifically, the Great Salt Lake, which lies directly west of the proposed site of the Legacy Highway, is home to "a variety of birds, reptiles, amphibians, and mammals, some of which are t endangered" (Utahns v. U.S. DeparL Trans. I I 6l On an annual basis, approximately two to five milli on ). birds make use of the Great Salt Lake, almost exclusively on the side where the proposed Legacy Highway would go (Utahns v. U.S. Depart. Trans. 116l). This particular area of wetlands makes up three-quarters t of all wetlands in Utah, a state in which wetlands comprise under two percent of the surface area (Utahns v. U.S. Depart. Trans. 116l). During the late 1990s and early 2000s, the government and the public considered the wisdom of the ; proposed project ("Legacy Parkway"). For example, in 1997 the Utah Department of Transportation (UDOT) began an environmental impact study for the project ("Legacy Parkway"). From 1997 until 2000, public meetings in which citizens had the opportunity to speak their minds on the issue took place, and in 2000 UDOT completed the environmental impact study ("Legacy Parkway"). ln 2000 and 2001, ; respectively, the Federal Highway Administration (FHWA) and the U.S. Army Core of Engineers (COE) approved the project ("Legacy Parkway"). Because the proposed Legacy Highway would intersect with the U.S. interstate system and called for filling in wetland areas, both the FHWA and the COE had to issue approval for the project (Utahns v. U.S. Depart. Trans. 116l). t The matter took a major legal turn in January 2001 when Utahns for Better Transportation, Mayor Rocky Anderson of Salt Lake City, and the Sierra Club sued to challenge the issued FHWA and COE permits (' Legacy Parkway"). Although limited construction took place throughout 2001 , in September t 2001 the plaintiffs filed for a federal court injunction, but the next month the trial judge denied the plaintiffs' request ("Legacy Parkway"). In November 2001, the plaintifß appealed the denial of the injunction to the Tenlh Circuit U.S. Court of Appeals in Denver, and that court granted a femporary injunction on constrtrction ("Legacy Parkway"). In March 2002, the appellate court heard oral arguments ; on the controversy ("Legacy Parkway"). Six months later, the federal appellate court in Denver ordered the federal agencies to review some of their findings. Although it accepted most of the agencies' findings, the court had problems with t implications for two federal laws: (l) the National Environmental Policy Act (NEPA), which requires that federal agencies prepare environmental impact studies before taking large-scale federal action and (2) the Clean Water Act (CWA), which prohibits filling wetlands without a permit from the COE (42 U.S.C. $$ ; 4321-4370(d); 33 U.S.C. $ 1344(a),(d)). In terms of the final environmental impact statement, the court took issue with the elimination of an altemative possibility- to the Highway, failure to consider alternative sequencing of the overall plan to remedy transportation, lack of consideration of integration of the Highway with other forms of transportation, and failure to address impacts on wildlife (Utahns v. U.S. Depart. Trans. ; ll92). In terms of the COE permit, the court expressed concern with insufflrcient consideration of several items, including alternatives to the Highway, a narrow median on the Highway, a right of way matter, and impacts to wildlife (Utahns v. U.S. Depart. Trans. ll92). ; Upon remand of the case to the lower court, the injunction remained in effect pending consideration of the areas with which the appellate court had taken issue (Utahns v. U.S. Depart. Trans. ll92). In December 2004, a draft version of a supplemental environmental study came out, and governmental authorities requested public comments before submitting a final version of the environmental study for : court review ('Details about the Legacy Parkway Dispute" 806). t Methods Employed in the Study As suggested above, this study considers some of the rhetoric that has surrounded the Legacy Highway. To do so, the study will address the rhetoric of several of the major players in the lawsuit that went to the ; 10"' Circuit U.S. Court of Appeals. In the written decision for that case, the names of several different goups that have opposed and supported the project appear as parties to the case or as amici curiae. Amici curiae are non-parties to a legal case but have interests in the case at hand and so file brieß with the court t ("Amicus Curiae" 83). The parties and amici include groups such as the Sierra Club, Utahans for Bctter t t 328 Pedrioli n Transportation, Advocates for Safe and Efficient Transportation, and the Utah Depaltntent of' Transportation. Indeed, an examination of the available web pages of the groups in interest, as postcd in làll 2004, will reveal how those major players in the legal conflicf have seen the Legacy Highway rnatter.

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