NEPA

Public Involvement

The court held that the plaintiffs were unlikely to succeed on the merits of their NEPA claims. While the court resolved some of the plaintiffs’ arguments without much explanation, the court elaborated on the following issues related to public involvement:

·       The plaintiffs claimed that they did not have an opportunity to comment on the project being completed in phases. The court noted that the Draft EA (which was made available for public comment) stated that the project could be completed in phases. Specifically, the Draft EA explained that the project would be delivered using a “fixed budget/variable scope” design-build contract with contractors bidding to provide the most project scope for the fixed budget, and that the project would be completed in multiple parts if the winning bid did not entail the full project scope.

·       The plaintiffs claimed that the agencies should have provided a notice and comment period after FHWA issued the FONSI. The Council on Environmental Quality’s NEPA regulations (40 CFR 1501.4(e)(2)) require an agency to make a FONSI available for public review in limited circumstances: when the proposed action is, or is similar to, an action that normally requires the preparation of an environmental impact statement under the agency’s NEPA procedures, or when the nature of the proposed action is one without precedent. The court found that neither of these circumstances was present, “in part because the Project improvements will occur almost entirely within existing ArDOT right of way.” Therefore, the court held, FHWA was not required to make the FONSI available for public review.

·       The plaintiffs argued that the agencies should have given an opportunity for public review and comment on new material that was presented in response to comments on the Draft EA. In particular, the agencies’ response to comments provided more detailed information from their travel time modeling to support the travel time estimates in the Draft EA. The court held that the plaintiffs did not establish that this was actually new material or that their procedural rights had been violated.

·       The plaintiffs alleged that the notice of availability of the Draft EA misled the public by requesting comments on the preferred alternative rather than on the Draft EA. The court held that this oversight was harmless because the agencies corrected the notices prior to the public hearing on the Draft EA, and there was no indication that the commenters who responded prior to the form’s correction were misled.

Preliminary Injunction

The court concluded that the plaintiffs did not satisfy the four required elements for a preliminary injunction: they were not likely to succeed on the merits of their claims (see above), they were not likely to suffer irreparable harm if the court did not issue a preliminary injunction, the balance of equities did not support halting construction, and the public interest favored allowing construction to continue.

Threat of Irreparable Harm.  Several plaintiffs who lived near the project testified that they would be negatively impacted by construction of the project due to noise, traffic, air pollution, decreased property values, and other impacts. The court concluded, however, that the plaintiffs did not demonstrate that they were likely to suffer irreparable harm if construction on the project proceeded while the lawsuit was pending. The court noted that construction was scheduled to begin around the same time as the court’s final hearing in the case, and so the case could be resolved shortly after construction was scheduled to begin.

Balance of Equities.  The court held that the balance of equities did not support an injunction. The court explained that the plaintiffs were not likely to suffer irreparable harm, whereas an injunction could increase project costs and delay the construction schedule. The court noted that ArDOT had already spent roughly $40 million on the NEPA process and $60 million for the design-build contractor. If the court issued a preliminary injunction, ArDOT would be required to pay $32,000 per day to the design-build contractor, and 40 construction workers would lose their jobs. If the project were terminated, ArDOT would be required to pay roughly $21 million to the contractor for demobilization costs. In addition, even a short delay in starting construction could significantly impact the project schedule because certain construction activities had to be scheduled for particular times of the year based on ambient temperatures and the water level in the Arkansas River.

Public Interest.  The court held that the public interest favored allowing construction to continue because the project would benefit the public by reducing congestion, enhancing safety, and improving the quality of life for highway users. In addition, the court explained that halting construction on the project would not be in the public interest because “it would cause a delay in its completion and a significant loss to the taxpayers of Arkansas.”