Case Law Updates on the Environment (CLUE)
Case Law Update Details
Hoosier Environmental Council v. Corps of Engineers
U.S. District Court - Indiana
I-69 Evansville to Indianapolis
This project involved the proposed construction of I-69 from Evansville to Indianapolis, IN. FHWA and INDOT prepared a Tier 1 EIS for the entire project, which was approved by FHWA in a Tier 1 ROD. Following Tier 1, FHWA and INDOT then began preparing a series of Tier 2 EISs for six individual sections of the project. The U.S. Army Corps of Engineers did not issue a permit during the Tier 1 process. Instead, it directed INDOT to submit permits under Section 404 of the Clean Water Act as part of the Tier 2 process for each section. Consistent with that approach, the Corps issued a Section 404 permit for “Section 3” of the project.
In a previous lawsuit, this plaintiff and others challenged FHWA’s Tier 1 ROD; the court in that case ruled in FHWA’s favor, upholding the ROD. In this lawsuit, the plaintiff challenged the Corps’ Section 404 permit for Section 3 of project. The court ruled in favor of the Corps.
Clean Water Act
Section 404 Permitting - Scope of Permit. The plaintiffs argued that the Corps’ entire approach to Section 404 permitting was flawed, because the Corps was reviewing permits only for individual Tier 2 sections, rather than making a permitting decision for the entire project that was considered in Tier 1. The court rejected this argument, holding that “the CWA does not require the Corps to consider alternatives to the entire corridor route when analyzing a permit application for a sub-section of the overall corridor.”
Section 404 Permitting - Practicable Alternatives. Plaintiffs also argued that an alternative considered in Tier 1 - an alternative corridor for the entire project, from Evansville to Indianapolis - was a practicable alternative for the impacts in Section 3. The court rejected this argument as well, because “Plaintiffs’ argument does not take into account the rest of the stated goals for Section 3 which include serving local needs; personal accessibility for local residents and communities; improving traffic safety; and enhancing local economic development.”
Section 404 Permitting - Public Interest Review. Plaintiffs argued that the Corps’ public-interest review for the Section 404 permit was inadequate because the agency weighed the benefits of the entire I-69 project, while considering only the negative impacts of Section 3 by itself. The court found that the Corps had properly confined the focus of its review to Section 3, and in that context it had properly considered the potential for Section 3 to “facilitate” the larger effort to complete I-69 as a whole.