Categorical Exclusion

The plaintiffs raised several arguments for why the project did not qualify for a CE. The court ruled in favor of FHWA and VTrans, upholding their decision to proceed with a categorical exclusion rather than an environmental assessment or environmental impact statement.

Applicable Regulations.  The court reviewed the CE determination under the regulations that were in effect at the time of FHWA’s decision in December 2013. The court therefore rejected the plaintiffs’ argument that the project no longer qualified for a CE under a subsequent version of FHWA’s NEPA regulations (23 CFR 771.117).

No Significant Impact on Travel Patterns.  FHWA’s NEPA regulations (23 CFR 771.117(a)) define CEs as actions that do not have any significant environmental impacts, including no “significant impacts on travel patterns.” The plaintiffs asserted that the project would have a significant impact on travel patterns because its purpose was to reduce congestion and improve traffic flow at the Exit 16 interchange, and therefore it was ineligible for a CE. The court held that “an improvement in traffic flow does not automatically disqualify a project from consideration as a CE.” The court concluded that the project would not have a significant impact on travel patterns because the project would merely modify the design of the existing interchange and would largely take place within the existing right-of-way, without increasing roadway capacity, redirecting traffic, or otherwise causing wholesale changes in the use of roadways by the population.

Indirect Effects on Another Project.  The plaintiffs claimed that VTrans and FHWA did not adequately assess the project’s indirect effects on a nearby proposed gas station. The state environmental permit for the proposed gas station, which was issued in January 2013, was conditioned on VTrans’s submittal of a state environmental permit application for the Exit 16 interchange improvements and VTrans’s completion of the project’s improvements to U.S. 7. Alternatively, the permit condition could be satisfied by the gas station developer’s paying for optimized traffic signal timings along U.S. 7. The court rejected the plaintiffs’ assertion that these conditions made the gas station an indirect effect of the project. “The decision of a state regulatory body to condition its permit for the . . . service station on certain steps toward completion of the Exit 16 project does not make the service station the effect or result of the federal action.” The court noted that the permit application for the gas station was submitted before the plans for the Exit 16 interchange project were developed, and VTrans and FHWA had no control over the conditions placed on the gas station’s permit. The court concluded that the gas station was not caused by the Exit 16 interchange project, and the gas station’s effects were properly excluded from VTrans’s environmental analysis for the Exit 16 interchange project.

Certainty of Environmental Impact Findings.  The plaintiffs argued that VTrans’s CE documentation did not unequivocally find that significant environmental effects would not result from the project, citing VTrans’s statements that significant effects were not likely or not expected. The court disagreed. “The court interprets the phrases ‘not likely to induce significant alterations’ and ‘no significant environmental impact is expected to occur’ as the functional equivalent of ‘will not induce’ and ‘will not result.’ The VTrans author is plainly communicating his or her view that the project will not affect the environment.”

Administrative Record

Post-Decision Documents.  The court denied the plaintiffs’ request to consider emails from 2018 that allegedly demonstrated that VTrans and FHWA did not properly consider all indirect effects of the project. The court explained that it could not consider material or events after FHWA’s CE determination in December 2013 because post-decision documents could not have formed the basis for FHWA’s decision.