Case Law Updates on the Environment (CLUE)
Case Law Update Details
Hoosier Environmental Council v. Corps of Engineers
U.S. Court of Appeals - 7th Circuit
I-69 Evansville to Indianapolis
This project involved the proposed construction of an Interstate highway, I-69, from Evansville to Indianapolis, Indiana, a distance of approximately 142 miles. Because of the size of the project, FHWA and the Indiana Department of Transportation (INDOT) used a tiered approach to comply with NEPA. The Tier 1 EIS considered a wide range of corridors for the project, extending across a 26-county study area in southern Indiana. The Tier 1 ROD approved a corridor - known as 3C - that connected Evansville to Indianapolis via a relatively direct route. Environmental groups and others opposed that route, and instead advocated a less direct route that would have improved existing roads (U.S. 41 and I-70). The Tier 1 ROD divided the approved corridor into six separate sections, each of which became the subject of a separate Tier 2 EIS.
The Corps participated in developing the Tier 1 EIS. In its comment letter on the Tier 1 Final EIS, the Corps expressed support for the tiered process, but also emphasized that it was not committing to approve a permit for the project. At the Corps’ direction, Section 404 permitting occurred on a section-by-section basis in Tier 2. Consistent with that approach, the Corps issued an individual permit for “Section 3” of the project.
The plaintiffs, an environmental group, challenged the Corps’ approval of the individual Section 404 permit for Section 3 of the I-69 project. They claimed that the Corps violated Section 404 by failing to consider Tier 1 alternatives - in particular, the 41/70 route - as an alternative for minimizing impacts to wetlands and other waters of the United States. The plaintiffs did not seek an injunction to halt construction while their lawsuit was pending. During that time, INDOT completed construction of Sections 1 through 3 of I-69 -- a distance of approximately 70 miles. The district court upheld the Corps’ approval of the permit, and the Court of Appeals affirmed that decision.
Section 404 of Clean Water Act
“Practicable Alternatives”. The plaintiffs claimed that the Corps was required to consider the 41/70 alternative as a practicable alternative, even though it involved a fundamentally different route than the one selected by FHWA in Tier 1. The court held that it was permissible for the Corps to accept the analysis completed by FHWA in its Tier 1 EIS, so that the Corps could then focus just an alternative alignments within a specific section: “If another agency has conducted a responsible analysis the Corps can rely on it in making its own decision. “
Public Interest Review. The plaintiffs claimed that the Corps had not adequately considered each of the factors listed in its regulations when conducting its public-interest review for the Section 404 permit application. The court upheld the Corps’ public-interest determination, even though the Corps had not examined each factor in detail:
"It would be unrealistic to think that the Corps could, within a reasonable time and with its limited resources—not to mention the limits of human knowledge—actually analyze each of these factors in depth, attach a weight to each, and by adding up all the weights determine whether to approve a project. The regulation is overly ambitious, and should perhaps be considered aspirational. Especially when as in this case the Corps is given a chance to and does weigh in on the highway agencies’ analysis of the relative benefits and costs of a proposed highway project, it should be able to rely on that analysis, if it is a responsible analysis, while conducting its own analysis of those factors that are within its competence, such as effects on wetlands."
. Mootness. On appeal, INDOT argued that the case had become moot because the section at issue had been constructed and was open to traffic. The court rejected this argument, holding that “[a] case is moot only if ‘it is impossible for a court to grant any effectual relief whatever to the prevailing party,’ as when a case is settled.” The court noted that it could still grant effective relief by issuing “an injunction requiring the defendants to rip up section 3 and recreate the wetlands it has destroyed.”