NEPA

Purpose and Need. The plaintiffs’ claimed that FHWA’s review was inappropriately biased by FHWA’s reliance on Congressional intent, as expressed in legislation designating the “high-priority” corridor as a future Interstate route. The court held that “it was reasonable for FHWA to interpret Congressional intent as favoring an Interstate design, and then to include effectuation of this intent as part of the purpose and need of the I-73 Project.”

Access-Management Alternative. The plaintiffs asserted that FHWA erred by failing to consider an “Access Management Alternative,” which essentially involved improving existing roads without constructing a new Interstate highway. FHWA had rejected that alternative, in part, because Virginia DOT lacked legal authority to control that access.” In the ROD, FHWA stated that “it does not consider access control alternatives to be reasonable because they are outside the control of FHWA and can’t be implemented with any degree of certainty or control by VDOT for the life of the project and are wholly dependent upon the localities for their success.” The plaintiffs noted that, after the ROD was issued, Virginia passed legislation that increased VDOT’s ability to control access. Nonetheless, the court upheld FHWA’s decision, because its review was based on the record as it existed at the time of the ROD.

Postponement Alternative. The plaintiffs claimed that “FHWA should have considered the reasonable alternative of postponing finalizing the EIS, in order [to] ensure that there is a full NEPA review of the impacts and alternatives to the project that is ultimately approved and funded for construction.” The court rejected this argument, finding that “such an alternative would not satisfy the I-73 Project’s purpose and need.” The court also noted that “post-ROD considerations and contingencies raised by Plaintiffs may trigger re-evaluations, supplementations and later judicial review …, as well as prevent FHWA from obtaining necessary permits, but these issues are not properly before the court at this time.”

Impacts of Phased Construction. The plaintiffs noted that, because of the lack of funding, it was likely that the project would be constructed in phases, and argued that the EIS had not properly considered the impacts of phased construction. The plaintiffs based this argument on the U.S. Court of Appeals decision in Davis v. Mineta, 302 F.3d 1104 (10th Cir.2002), which found an EA inadequate based partly on inadequate consideration of the impacts of phased construction. The court rejected the plaintiffs’ argument, because this project involved a much larger area: “The court finds that given the large size and scope of the I-73, any delays in construction may rightly be categorized as ‘temporary’ or ‘construction-related,’ and therefore any impacts from the ‘phased’ construction would not be significant when viewed in context of the overall project.” The court also found that individual construction segments of I-73 were not required to have logical termini and independent utility, because “these requirements apply to ‘the action evaluated in each EIS,’ which here is the complete I-73 Project.”