Controversy over highway construction and clean air proves to be a red herring. Court says the NAHB has the right to protect members' interests. By Gary Garczynski

It may not have generated extensive coverage on the nightly news, but a recent decision by the U.S. Court of Appeals for the 10th Circuit was an important victory for the nation's home builders and for housing consumers.

Court rules

In its ruling, the Court of Appeals reversed a lower court decision and determined that the NAHB, as part of the Advocates for Safe and Efficient Transportation (ASET) coalition, has the right to intervene in lawsuits that seek to halt highway construction under provisions of the Clean Air Act.

Real goal

This is important because the groups that file such suits say they're seeking compliance with the Clean Air Act, but often their real goal is very different. They want to control growth and development by preventing the construction of new roads. Ultimately, such actions will limit the country's housing supply, drive up costs at a time when nearly 28 million American families are struggling to find affordable housing, and limit the freedom of choice that is a hallmark of our nation's housing system.

Photo: John Hansel

In Utahns for Better Transportation v. United States Department of Transportation, the Sierra Club challenged federal approval of a transportation plan for the Salt Lake City area and sought to prohibit any further funding and approval of highways in the region. Last year, the Utah federal trial court denied the NAHB's request for intervention in the case, and the associations involved in the ASET coalition then appealed that ruling.

Protect interests

In its decision, the 10th Circuit confirmed that it is appropriate for trade associations to protect members' economic interests. It also stated that the NAHB should have the right to intervene because it contributed to the transportation planning decisions made by the region and because its members depend on the local transportation system for conducting their businesses, for commuting, and for recreation.

Significantly, the 10th Circuit also ruled that it is impossible for the federal government to sufficiently represent the NAHB's interests in these types of transportation-related challenges, and that the NAHB's intervention is appropriate because the association provides "expertise the government agencies may be lacking."

Speedy intervention

Not only will the Court of Appeals' decision allow the NAHB to intervene in this specific case, but it will carry great weight in any future transportation litigation. Hopefully, with the backing of this decision, the association will no longer need to fight expensive, prolonged battles over intervention and in future cases will be able to move much more quickly to the substance of the debate.