Case Law Updates on the Environment (CLUE)
Case Law Update Details
Black Warrior Riverkeeper v. Alabama DOT
U.S. District Court - Alabama
The Northern Beltline Project is a proposed 52-mile interstate highway bypassing Birmingham, Alabama, with an estimated completion date in 2048. FHWA and Alabama DOT completed a FEIS in 1997, and FHWA issued a ROD in 1999. Alabama DOT completed a reevaluation of the project in 2012 to assess the impacts of alignment changes since the FEIS was published. FHWA approved the reevaluation for the eastern portion of the project and concluded that the changes would not cause any new significant environmental impacts. However, FHWA directed Alabama DOT to conduct additional studies so that FHWA could determine if an SEIS would be needed for the western portion. In September 2013, the Army Corps of Engineers issued a Section 404 permit to ALDOT for discharges associated with construction of the first 1.86-mile section of the Northern Beltline, between State Route 75 and State Route 79.
The plaintiff filed a lawsuit against FHWA and Alabama DOT alleging NEPA violations in April 2011, and a lawsuit against the Corps and Alabama DOT challenging the Section 404 permit in October 2013. The court subsequently consolidated the two actions. The court granted summary judgment for the agencies on all claims, finding that the plaintiff did not show sufficient evidence that the agencies had acted inappropriately.
The plaintiff argued that the agencies should have prepared SEIS for the entire Northern Beltline, and that the Corps’ EA/FONSI was improperly segmented and did not adequately analyze environmental impacts.
Final Agency Action. The APA only permits judicial review of final agency action. The court explained that a determination regarding the need to prepare an SEIS would be a final agency action that the plaintiff could challenge. The court noted that FHWA had not yet determined if an SEIS for the western portion was necessary; rather, FHWA had requested additional studies before it would make such a determination. Therefore, the plaintiff could not challenge FHWA’s failure to require an SEIS for the western portion. On the other hand, the court found that “FHWA’s decision that no SEIS is needed for the eastern portion of the Beltline is a final agency action that is ripe for review.”
Reevaluation. The plaintiff argued that FHWA’s analysis of the reevaluation had improperly segmented the project into eastern and western portions to avoid preparation of an SEIS for the entire Northern Beltline. The court concluded that the plaintiff did not present sufficient evidence to demonstrate improper segmentation. The court explained that the eastern portion appeared to satisfy FHWA regulations regarding segmentation: it connected logical termini, was of sufficient length to address environmental matters on a broad scope, had independent utility or independent significance, and would not restrict future consideration of alternatives.
Section 404 Permit. The plaintiff also argued that the Corps improperly segmented the project by preparing an EA/FONSI that only encompassed the 1.86-mile section for which the Corps issued a Section 404 permit. The court concluded that the agencies had not violated NEPA because the 1.86-mile section would connect logical termini, had independent utility even if the remainder of the Northern Beltline was not constructed, and would not pose any meaningful restriction on future consideration of alternatives for the remainder of the Northern Beltline. The court also held that the Corps complied with its own NEPA regulations and had adequately considered the indirect and cumulative effects of approving a permit for the 1.86-mile section.
Reevaluation. The plaintiff raised a number of challenges to the reevaluation’s analysis of environmental impacts. As a preliminary matter, the court noted that the agencies were not required to reevaluate all of the direct, indirect, and cumulative impacts of the entire project; rather, the agencies only needed to analyze whether the environmental impacts resulting from new circumstances or new information were significant. The court also explained that not every piece of new information or change in circumstances required an SEIS; rather, an SEIS was only required if the changes would result in significant impacts not previously evaluated in the FEIS.
Design Changes. The plaintiff argued that the agencies should have prepared an SEIS to analyze environmental impacts from design changes to the eastern portion. ALDOT proposed increasing the size of the highway from four lanes to six lanes, along with alignment shifts that would require crossing additional floodplains and relocating additional businesses and residences. In the reevaluation, the agencies explained that adding lanes would not increase the roadway footprint because the median width would be decreased. The court concluded that the plaintiffs did not put forth sufficient evidence to demonstrate that the agencies had failed to adequately analyze the impacts of the design changes, or that the design changes necessitated an SEIS. In reaching this conclusion, the court noted that:
The Highway Defendants are not obligated to produce hydrologic studies to demonstrate that the additional lanes of highway will result in “zero” impacts or impacts that are ‘identical” to those considered in the FEIS. Instead, the applicable standard requires the Highway Defendants to take a hard look at the relevant factors and determine whether the change in design will result in “significant” impact that was not already considered in the FEIS.
Changed Circumstances – Environmental Impacts. The plaintiff claimed that the agencies should have prepared an SEIS to analyze the environmental impacts from a variety of changed circumstances, which included newly listed endangered species, worsening water quality in streams, and sewer infrastructure issues. The court noted that USFWS concurred with the agencies’ finding that there would be no impacts on threatened and endangered species. The court held that the plaintiffs did not show that any of these changed circumstances would result in additional significant impacts that the agencies should have considered.
Changed Circumstances – Increased Project Cost. The plaintiff also claimed that increased cost estimates for the project were a “new circumstance” that required preparation of an SEIS. The court held that “Project cost may be relevant to environmental concerns and the quality of the human environment insofar as the cost of the project is a factor in (1) the evaluation of the relative environmental and economic costs and benefits of the project and in (2) the selection of project alternatives.” However, the court found that the increased project cost did not require an SEIS in this case because cost had not been a significant factor in selecting the preferred alternative and, in any case, plaintiffs had not shown that the relative costs of the alternatives had changed significantly since the original EIS was prepared. The court also indicated that it would be unreasonable to require agencies to continually update cost estimates for all alternatives:
The updated cost estimates for the current Beltline alignment could only be meaningful for evaluating alternatives if Defendants are obligated to perpetually and at every stage of environmental review create updated designs and cost estimates for the previously rejected alternative routes for the entire Northern Beltline in order to re-compare all of the alternatives. Not even this Plaintiff argues that Defendants carry such a heavy burden at every stage of the environmental review process.
Indirect and Cumulative Impacts on Water Quality. The plaintiff also argued that the agencies should have prepared an SEIS to analyze the indirect and cumulative impacts of the entire Northern Beltline project, because the FEIS failed to do so. The court held that any challenge to the 1997 FEIS was barred by the statute of limitations. Furthermore, the court quoted extensively from the Corps’ EA, citing specific examples of the Corps’ consideration of indirect and cumulative impacts resulting from the creation of additional impervious surface within the project area’s watersheds. Based on this evidence, the court concluded that the record makes it “painfully obvious” that the agencies had extensively considered indirect and cumulative impacts on water quality in the 2012 reevaluation.
Adequacy of EA/FONSI. The plaintiff claimed that the Corps’ EA did not adequately analyze the impacts of issuing a Section 404 permit for the 1.86-mile section. The court rejected the plaintiff’s argument. The court held that the plaintiff failed to explain what analysis was lacking from the EA, and that the plaintiff did not otherwise show that the Corps had failed to take a hard look at the project’s environmental impacts.
Clean Water Act
Segmentation. The plaintiff alleged that the Corps improperly segmented the project by granting a Section 404 permit for a 1.86-mile segment of the 52-mile Northern Beltline. The court noted that it was standard practice for the Corps to issue permits for individual sections of large highway projects. Indeed, the court explained, it would be impossible for ALDOT to apply for, and for the Corps to review, a single permit for the entire Northern Beltline:
The practical necessity of this approach is especially evident in this case. It would be impossible for ALDOT to apply for, and COE to review, a permit for the entire Northern Beltline at once – not only because of the time, logistics, and volume of information that would be involved in permitting every discharge at every point along the entire 52-mile-long Beltline at once, but also because much of the Beltline has not even reached the point in the design stage where COE could meaningfully review such a permit application....
In the considerable length of time that it would take for ALDOT to create a detailed design of the entire 52-mile long Beltline, ... changes will no doubt occur in the environment and in the project design, and new information and new circumstances will come to light. The inevitable ebb and flow of updated and outdated information over time would require constant monitoring to ensure that the myriad decisions made throughout the entire process remained valid under NEPA, CWA, and other applicable regulatory schemes until the final, massive § 404 permit decision can be made and then (if applicable) run through the gauntlet of judicial review. In other words, Plaintiff’s preferred approach would effectively reduce the Northern Beltline Project to nothing more than an intractable administrative mess. That is neither the goal, nor should it be the result, of the regulatory process.
Section 404(b)(1) Guidelines.
Alternatives Analysis. The plaintiff claimed that the Corps inadequately considered other practicable alternatives to the project. The plaintiff argued that the updated cost estimate for the project rendered the preferred alternative impracticable, and that the Crops did not adequately consider two-lane or four-lane alternatives. The court held that the updated cost estimate for the entire Northern Beltline did not require the Corps to reconsider the continuing validity of its alternatives analysis. In addition, the court cited ample evidence from the record that the Corps had analyzed two-lane and four-lane alternatives and had concluded that they were not practicable and would not be less environmentally damaging. The court acknowledged that the U.S. EPA had recommended selecting a different alternative, with lower environmental impacts, but the court upheld the Corps’ decision to reject that alternative due to its impacts on a Section 4(f) property.
Public Interest Evaluation. The plaintiffs also claimed that the public interest analysis was flawed because the Corps justified the Section 404 permit based on the need for and benefits of the entire Northern Beltline project, rather than the need for and benefits of the 1.86-mile section. The court concluded that the plaintiffs did not provide sufficient support for the claim and, in fact, the Corps had found that the 1.86-mile section had utility independent of the rest of the Northern Beltline. The court also held that the Corps had adequately considered the direct, indirect, and cumulative impacts of the Northern Beltline project as a whole in its public interest analysis.
Corps’ Compliance with NEPA
The plaintiff also claimed that the Corps itself had violated NEPA by segmenting its consideration of the 1.86-mile section from the larger Northern Beltline project. This argument was similar to the segmentation claim brought by the plaintiff against FHWA, except that it rested in part on provisions in the Corps’ own NEPA regulations, which required the Corps NEPA analysis to include not only the “specific activity” being permitted but also the “those portions of the entire project over which the [Corps] has sufficient control and responsibility to warrant Federal review.” The court held that the Corps had complied with this regulation because, in this context, the “entire project” consisted of the 1.86-mile section and not the entire Northern Beltline. The court found that the Corps’ NEPA regulations “[do] not prevent COE from issuing permits for individual, manageable phases of massive highway projects that do not otherwise run afoul of other regulations that prohibit segmentation and overly narrow permit applications.”