Case Law Updates on the Environment (CLUE)
Case Law Update Details
Openlands v. USDOT
U.S. District Court - Illinois
This case involved the proposed construction of a new toll highway, known as Illiana Corridor, connecting I-65 in Indiana to I-55 in Illinois. Together with Illinois DOT and Indiana DOT, FHWA prepared a Tier 1 EIS for the project. The Tier 1 EIS considered a range of alternative corridors for constructing the project within a study area that encompassed approximately 950 square miles. The agencies issued the Tier 1 Draft EIS in July 2012, followed by a combined Tier 1 Final EIS and ROD in January 2013. The Tier 1 ROD approved a single corridor for further study in a Tier 2 EIS.
The Illiana Corridor project was located within the jurisdiction of the MPOs for the metropolitan areas of Chicago, Illinois and Gary, Indiana. For purposes of their metropolitan planning processes, the MPOs had adopted “policy-driven” socio-economic forecasts, which reflected the MPOs’ policy goals of “revitalization of the urban core” and “more development to existing communities.” For purposes of the NEPA process, FHWA decided to use “market-driven” socio-economic growth forecasts instead of the MPOs’ policy-driven forecasts. FHWA’s rationale was that the market-driven forecasts more accurately reflected future growth. FHWA also declined to include both sets of forecasts - market-driven and policy-driven - out of concern that two sets of forecasts would be confusing to readers.
The selected corridor for the project was located along the southern edge of the Midewin National Tallgrass Prairie, a Section 4(f) resource. In the Tier 1 FEIS, FHWA made a preliminary determination that noise impacts from the project would not result in a constructive use of the Prairie. FHWA stated that its preliminary finding of no constructive use would be revisited in Tier 2, when more detailed information would be available.
The plaintiffs, a coalition of environmental groups, challenged the Tier 1 FEIS and ROD, claiming that the violated NEPA and Section 4(f). Their NEPA challenges focused primarily on FHWA’s approach to developing the traffic forecasts; their Section 4(f) claim challenged FHWA’s preliminary finding of no constructive use for the Prairie. The court rejected several of the plaintiffs’ challenges to the traffic forecasts, but held that the forecasts were flawed in one respect - namely, assuming the existence of the Illiana Corridor when determining the socio-economic growth forecasts for the No Build scenario. Based on that flaw in the traffic forecasts, the court held that the direct and indirect impacts analysis was flawed. With regard to the Section 4(f) claim, the court held that FHWA’s preliminary finding of no constructive use was not a final agency action and therefore was not subject to review.
Purpose and Need - Traffic Forecasts. The plaintiffs claimed that the traffic forecasts used in the Tier 1 EIS were flawed for several reasons: (1) that FHWA should have used the MPO’s policy-driven forecasts, rather than using its own market-driven forecasts; (2) that FHWA’s forecasts were contradicted by recent Census data showing lower rates of socio-economic growth; and (3) that FHWA’s socio-economic forecasts improperly assumed the same level of growth under No Build and Build scenarios. The court rejected the first two arguments, but agreed with the third:
(1) MPOs’ Growth Forecasts. The plaintiffs contended that FHWA was required to use the MPOs’ forecasts or, at least, that FHWA had not provided sufficient reasons for choosing not to use the MPOs’ forecasts. The court expressed some skepticism of FHWA’s position, but held that it was permissible under NEPA:
“Given the MPOs’ legal mandate to develop long-range transportation plans for their areas and the influence they wield over local land use decisions through those transportation plans, it would seem unwise for the Agencies to reject the MPOs’ population forecasts. But plaintiffs cite no authority requiring the Agencies to accept the MPOs’ forecasts, and the question for the Court is not whether the Agencies’ refusal to do so was unwise, but whether it was ‘arbitrary’ or ‘capricious.’ 5 U.S.C. § 706(2)(A). Because the Agencies have articulated reasonable, if not persuasive, reasons for their decision not to use the MPOs’ forecasts, that decision is not arbitrary within the meaning of the [Administrative Procedure Act].”
(2) Recent Census Data. The plaintiffs also argued that the market-driven forecasts were flawed because those forecasts assumed that future growth would be considerably higher than growth in recent years. In particular, the plaintiffs pointed to recent Census data showing that the one county in the study area has experienced “virtually no growth” from 2007 to 2013. The court rejected this argument, finding that the agencies had considered Census data and that the recent lack of growth in one county did not make the overall forecasts invalid:
“[T]he Agencies’ population forecasts project growth over a thirty-year period, starting in 2010 and ending in 2040. The fact that there was little or no growth in Will County in the first few years of that period does not necessarily invalidate the thirty-year projection as a whole. It would, perhaps, have been more prudent for the agencies to acknowledge the fallow period and explain its effect, if any, on the overall forecast. But, prudent or not, the Agencies’ failure to account explicitly for the lack of growth in the early part of the forecast period does not make the forecast arbitrary.”
(3) Assumptions Used in No-Build Forecast. The plaintiffs also claimed that FHWA’s socio-economic growth forecasts for the No Build scenario improperly assumed the existence of the Illiana Corridor. This argument was based on a statement in the technical report that documented the basis for the socio-economic growth forecasts for the No Build and Build alternatives. In justifying the expected rate of population growth, the technical report listed a “a number of significant projects which should benefit virtually all portions of Will County,” and included Illiana Corridor in that list. The court held that “[b]ecause the record shows that the ‘no build’ population forecast may or does include the ‘build’ condition, the record does not support the EIS’ statement that the purpose and need for the Illiana Corridor is to accommodate the anticipated population boom in Will County.”
Direct Effects. Because the traffic forecasts were used in the analysis of direct effects, the court found that the direct effects analyses also were flawed:
“As discussed above, however, it is not clear that the EIS contains a true ‘no build’ analysis. Without such an analysis, it is impossible to determine the extent to which building the Corridor will increase traffic on existing roads and the impact such increased traffic may have on the study area. Thus, absent a supported no build analysis, the EIS does not comply with NEPA’s directive to analyze the project’s direct impacts.
Indirect Effects/Induced Growth. The court discussed the issue of indirect effects analysis only briefly, but held that the indirect effects analysis also was inadequate because the EIS did not take into account induced growth that would be caused by the project:
“The EIS states that the B3 Corridor ‘falls within an area that is largely undeveloped,’ in which ‘[m]ore than 72 percent of streets and highways ... are rural’ and ‘approximately 62 percent of roadways (2,093 miles) are local or municipal streets.’ [The MPOs] both commented that building the Illiana Corridor in such an area was likely to require the states and local communities to upgrade those roads .... Yet the EIS does not suggest measures for mitigating these impacts or even acknowledge that they exist.”
Consistency with Land Use Plans. In addition to their challenges to the traffic forecasts, the plaintiffs also challenged the EIS’s discussion of consistency with land use plans, citing the requirement in the CEQ regulations for a discussion of “[p]ossible conflicts between the proposed action and the objectives of ... regional ... land use plans” and “any inconsistency [between] a proposed action [and] any approved ... local plan.” The court held that the EIS was deficient in this regard as well:
“The Agencies acknowledge that the market-based population forecasts that undergird their choice of [Alternative] B3 for the Illiana Corridor conflict with the policy-based forecasts contained in the MPOs’ long-range transportation plans, which seek to limit outward growth. The Agencies do not, however, acknowledge that the growth induced by construction of the B3 corridor would also conflict with those plans.”
Constructive Use. The court noted that the Final EIS “expressly states that the Agencies’ determinations as to all 4(f) properties are preliminary.” Because the Administrative Procedure Act only authorizes challenges to final agency actions, the court held that the plaintiffs’ challenge to FHWA’s preliminary Section 4(f) determinations was not ripe for review.