Case Law Updates on the Environment (CLUE)
Case Law Update Details
Milwaukee Inner-City Congregations Allied for Hope v. Gottlieb
944 F.Supp.2d 656
U.S. District Court - Wisconsin
This project involved the proposed reconstruction of a highway interchange in Milwaukee Wisconsin, known as the Zoo Interchange because of its location near the Milwaukee County Zoo. The project was intended to address the deteriorating condition of the interchange, upgrade the design to meet current standards (e.g., removing left-hand exits), and expand capacity to accommodate traffic volumes through 2035. FHWA and Wisconsin DOT (WisDOT) prepared an EIS for the project, and FHWA issued a ROD approving the “Reduced Impacts Alternative with Adjacent Arterials Component.” The selected alternative involved expanding the highway (US 45) from six to eight lanes in the north-south direction in the vicinity of the interchange, and adding an additional lane to each of four interchange ramps, making them two lanes wide instead of one. WisDOT proposed to implement the project in 26 phases over a period of five years.
The plaintiffs were two organizations that represented low-income and minority communities in Milwaukee. They objected to the project because it did not include some form of public transportation, such as improved bus service, to address the needs of transit-dependent city residents. They filed a lawsuit challenging the ROD, based on alleged violations of NEPA. They asked the court to issue a preliminary injunction halting construction while the lawsuit was pending. The court found that the plaintiffs were likely to succeed on the merits of their NEPA claims, and ordered an additional hearing to decide whether to issue a preliminary injunction. The parties later agreed to settle the lawsuit.
Range of Alternatives. The plaintiffs claimed that the EIS failed to analyze all reasonable alternatives because it did not study an alternative that included public transit. The advanced two versions of this argument: (1) that the EIS should have included an alternative that increased transit service and did not include highway construction, and (2) that the EIS should have included an alternative that replaced the existing interchange and increased transit service, without adding new capacity to the interchange. The court found that:
- Enhanced Transit Service without Interchange Reconstruction. FHWA and WisDOT considered and properly eliminated an alternative that increased transit service without reconstructing the interchange. The court agreed that such an alternative would not meet the Purpose and Need, because it would not address the deteriorating condition and sub-standard design of the interchange.
- Enhanced Transit Service plus Interchange Reconstructions. FHWA and WiSDOT actually had considered the type of hybrid alternative that plaintiffs proposed - keeping the interchange at its existing size (six lanes) while enhancing transit service - because the analysis for all alternatives assumed the implementation of transit improvements as part of the MPO’s long-range plan.
Traffic Forecasts. As part of their challenge to the alternatives analysis, the plaintiffs claimed that FHWA’s rejection of the six-lane alternative was flawed because it was based on outdated traffic forecasts provided by the MPO. The plaintiffs claimed that more recent data showed that the rate of growth in traffic volumes had declined. The EIS included a statement that the MPO had been asked by FHWA to confirm the validity of its traffic forecast, and it had responded that the forecast remained valid - but the EIS did not contain back-up documentation for the MPO’s conclusion. Nonetheless, the court found the statement in the EIS sufficient:
“NEPA does not require that the analysis supporting this conclusion appear in the EIS. Although it is true that an EIS must do more than set forth the agency’s conclusions, that does not mean that all of the data and technical analysis on which the agency relied when preparing the EIS must appear in the EIS itself. In the context of [the MPO’s] reevaluation of its 2035 traffic forecasts, all that a reader of the EIS needed to know was that the reevaluation took place and that the conclusion was that the forecasts remained valid. A reader who wanted to review the data and analysis supporting that conclusion could then consult the underlying [the MPO’s] documentation.”
Socio-Economic Effects. The MPO’s long-range plan included a goal of doubling transit service in the region by 2035, while also expanding highway capacity. The plaintiffs contended that the highway elements of the plan were being implemented, but the transit elements were not - and claimed that the EIS was inadequate because it “failed to consider the social and economic impacts of expanding highway capacity while transit capacity declines.” FHWA and WiSDOT argued that they had no authority to implement the transit elements of the MPO’s plan. The court held that the EIS still should have analyzed the impacts of expanding highway capacity without expanding transit service:
“[E]ven if the defendants do not have authority to expand transit capacity in the region, and even if NEPA does not require that they prioritize transit over highway projects, NEPA still requires them to examine and identify any cumulative environmental impacts that might result if the responsible decisionmakers continue to implement [the MPO’s] highway-capacity recommendations but not its transit-capacity recommendations.... [A]lthough the agencies might not be able to implement [the MPO’s] transit recommendations, they still have an obligation to acknowledge that the transit components of the Year 2035 plan are not being implemented and to identify the environmental harms that might materialize if transit continues to languish but the agencies continue to expand highway capacity in the region.”
The court also suggested that this socio-economic analysis may require the agencies to consider modifying alternatives to include transit improvements, even if the agencies did not have authority to implement those improvements:
“If the agencies propose an alternative involving transit and it becomes clear that the will to implement it is lacking, then that may be a reason to eliminate the alternative from detailed study. However, the agencies cannot simply assume that incorporating some form of transit into the project to avoid or minimize adverse social and economic harm is out of the question.”
Air Quality. The plaintiffs contended that the air quality analysis was flawed because it assumed the implementation of all project in the MPO’s plan, including the doubling of transit service, even though there was evidence showing that the transit elements were not being implemented. The court found that the air quality analysis was likely to be deficient because “[t]here is nothing in the record indicating that the expectation of doubling the amount of transit in the region by the year 2035 through 3.1 % annual increases beginning in 2012 was anything other than a pipe dream.”
Indirect and Cumulative Effects / Growth Inducement. The plaintiffs claimed that the EIS failed to consider the indirect and cumulative effects of expanding highway capacity in the region, including the potential to contribute to “suburban sprawl.” The cumulative effects analysis in the EIS focused on the vicinity of the interchange itself, and not the region as a whole. The court found that the geographic scope of the cumulative effects analysis was too narrow:
“The agencies do not fully discuss the extent to which the listed highway projects can be expected to generate adverse environmental affects across the entire region. Moreover, the agencies do not give any reasons for, on the one hand, identifying all regional highway projects as projects that can be expected to have a cumulative impact on the environment when combined with the Zoo Interchange project and, on the other hand, limiting the scope of their analysis of the cumulative impact to the immediate vicinity of the Zoo Interchange.
“Indeed, it appears that no one has studied the overall environmental effect on the region of implementing all of the highway-expansion projects in [the MPO’s] 2035 plan. Rather, it seems that the agencies which implement specific projects study only the effects that could be expected to occur in the immediate vicinity of the project under consideration. By proceeding in this fashion, the agencies run the risk of overlooking an environmental effect that emerges on the regional level. ... The agencies must consider this potential cumulative impact on the region rather than simply focus on environmental impacts that will be felt only in the vicinity of their specific project.”
Traffic Forecasts - Induced Travel. The plaintiffs claimed that the EIS failed to consider “induced travel” - that is, the potential for the increased highway capacity to cause an increase in the total volume of highway travel. The court found that the plaintiffs had not provided sufficient evidence showing that the traffic models failed to consider induced travel, so it found the plaintiffs were unlikely to prevail on this claim.
. Having concluded that the plaintiffs were likely to succeed on the merits of their claims, the court then considered whether to issue a preliminary injunction halting construction while the case was pending. The court weighed the potential for irreparable harm to the plaintiffs if an injunction was not granted, and also weighed the harm to the defendants and the public if an injunction was granted - for example, increased cost of construction of the interchange project. The court found that additional evidence was needed to resolve these issues, and ordered an evidentiary hearing to be held. Subsequently, the case was resolved by a settlement agreement.