Litigation Procedure Supplementation of Administrative Record. In the district court, the plaintiffs sought to introduce information outside the administrative record, based on a legal principle allowing consideration of extra-record documents if there was an indication of bad faith by the defendants in preparing the record. The district court rejected that request. On appeal, the plaintiffs argued that the district court had erred by excluding the extra-record evidence. The court of appeals upheld the district court’s decision, citing three reasons: “First, plaintiff provides no explanation for why this late-discovered material could not have been submitted for consideration during the NEPA process, which lasted about fourteen years. Second, plaintiff had an opportunity to review the draft Administrative Record before it was finalized and did not identify any information that was missing at that time. Third, the district court properly rejected plaintiff’s numerous examples of ‘bad faith’ because the evidence offered could not support a finding that defendants engaged in misconduct during the NEPA process.” NEPA Purpose and Need. As defined in the EIS for the project, the Purpose and Need included five distinct elements, all of which were associated with the overall goal of improving cross-river mobility in the Louisville metropolitan area. The plaintiffs argued that the Purpose and Need was flawed for three reasons: Scope of Project. The plaintiffs argued that FHWA had improperly combined two separate projects – the downtown bridges and the East End bridge – into a single project, rather than addressing each separately. The court held that it was within FHWA’s discretion to decide that these projects should be addressed in the same EIS, and concluded that FHWA had appropriately exercised that discretion here. An important factor in the court’s analysis was FHWA’s explanation of its reasoning in response to a comment on this issue. FHWA’s response stated that “Because these needs are interrelated, and have arisen at the same time and in the same geographic area, evaluation of the full range of potential solutions, or combinations of solutions, in one EIS achieves the intent of NEPA. That evaluation properly included various one- and two-bridge combinations, as well as the no action alternative.” Project Purposes. The plaintiffs argued that the Purpose and Need was flawed because it did not explicitly include the goal of aiding the minority population in West Louisville. The court rejected this argument, because “[n]o law or regulation required defendants to include a goal of benefiting minority populations in the Purpose and Need Statement, and NEPA ‘does not substantively constrain an agency’s choice of objectives.’” The court characterized plaintiffs’ disagreement with the Purpose and Need as a disagreement over policy, which did not provide a basis for overturning the Purpose and Need statement. Public Involvement. The plaintiffs argued that the Purpose and Need was flawed because FHWA and the State DOTs “engaged in a sham process” when they circulated the Purpose and Need statement for additional public review and comment during preparation of the Supplemental EIS for the project. The plaintiffs pointed to an internal agency memorandum in the record stating that “All of the elements of the original P & N remain valid, so there is no reason to change the P & N.” The appeals court rejected this argument, finding that such a statement was appropriate in the context of a supplemental EIS for a project that had already been approved. Range of Alternatives . The plaintiffs argued that the alternatives analysis was inadequate because the EIS did not include detailed analysis of a new light rail transit system and a non-tolled East End Bridge (separately or in combination with one another). The court upheld the rejection of non-tolled bridge alternatives based on analysis in the record showing that toll revenues were needed to help pay for the project. The court upheld rejection of the light-rail transit alternative because it did not satisfy the purpose and need, which identified a need for two new bridges to support improved cross-river mobility. Supplemental EIS. The plaintiffs argued that a supplemental EIS should have been prepared based on new information or changed circumstances relating to: (1) greenhouse gas emissions; (2) “ultra-fine” airborne particulates; (3) road runoff; (4) tunnel spoil; and (5) bridge piers. The court rejected each of these arguments. Greenhouse Gas Emissions. The plaintiffs claimed a supplemental EIS was needed to address the project’s contributions to greenhouse gas emissions. The court upheld FHWA’s conclusion that a quantitative GHG emissions analysis was not required, based on FHWA’s determination that it “cannot usefully evaluate greenhouse gas emissions on a Project-specific basis because of the non-localized, global nature of potential climate impacts.” Ultra-Fine Particles. The plaintiffs claimed that a supplemental EIS was needed to assess the project’s contributions to emissions of “ultra-fine particles” – a type of fine particulate matter. The court rejected this argument for two reasons: (1) “Plaintiff cites no guidance document, case law, agency comment, or other authority to suggest that such an analysis is required under NEPA or is even technically feasible.”; and (2) “the record shows that defendants consulted with the EPA throughout the preparation of the Supplemental Final EIS regarding the methodologies for various impact analyses—including air quality—and at no time did EPA suggest that defendants should analyze ‘ultra-fine’ particulates.”

Road Run-Off. The plaintiffs claimed that a supplemental EIS was needed to remedy defects in the analysis of stormwater run-off, including impacts of road de-icing salts on a creek in the project area. The court held that FHWA had satisfied NEPA because it “conducted a thorough analysis of potential impacts to water quality, incorporated robust measures to minimize road runoff impacts, and responded directly to plaintiff’s concerns about the potential discharge of road deicing fluids into Harrods Creek.” Tunnel Spoil. The plaintiffs claimed that a supplemental EIS was needed to assess the impacts of disposing of tunnel spoil, which would be generated during construction of the East End bridge. (The bridge included a tunnel segment on the Kentucky side of the river.) The plaintiffs asserted that defendants knew what the disposal sites would be and deliberately withheld that information during the NEPA process. The court found that this “baseless assertion falls flat” and concluded that the defendants had “rationally deferred a consideration of the environment impacts until the precise spoil locations would be identified.” Bridge Piers. The plaintiffs claimed that a supplemental EIS was needed to assess the impacts of constructing bridge piers within a water body. The plaintiffs claimed that the defendants had deliberately delayed seeking a permit under the Clean Water Act in order to avoid having to disclose the impacts in the EIS. The court found that the EIS adequately disclosed the potential for bridge piers to be located in water body, and had considered alternatives to minimize those impacts. The court also found that the “claim that defendants deliberately delayed seeking permits under the CWA to postpone the release of the locations of bridge piers is unwarranted speculation that has no basis in the record.” Civil Rights Act Title VI. The plaintiffs alleged that KYTC and INDOT had violated Title VI of the federal Civil Rights Act by participating in a process that resulted in selection of a tolled alternative that would have disproportionate impacts on low-income and minority populations. Title VI prohibits recipients of federal funds – such as KYTC and INDOT – from engaging in discrimination on the basis of race, color, or national origin. The court noted that, under applicable precedent, a violation of Title VI occurs only when there is intentional discrimination; a disparate impact is not enough to establish a violation of Title VI. The court held that “the record demonstrates that the need for tolling arose from funding shortfalls, not because defendants intentionally discriminated against Title VI populations. No rational factfinder could conclude otherwise.” Therefore, the court ruled in favor of KYTC and INDOT on these claims.