Case Law Updates on the Environment (CLUE)
Case Law Update Details
Citizens for Appropriate Rural Roads v. Foxx
U.S. Court of Appeals - 7th Circuit
I-69 Evansville to Indianapolis
The project involved the extension of Interstate 69 from Evansville to Indianapolis, Indiana. FHWA and INDOT prepared a Tier 1 EIS for the entire project, and FHWA issued a Tier 1 ROD approving the project in 2004. The agencies then began preparing a series of Tier 2 EISs for six individual sections of the project. This lawsuit primarily involved a challenge to the Tier 2 EIS for Section 4 of the project, which connected the Crane Naval Surface Warfare Center to Bloomington. FHWA and INDOT issued a Draft EIS for Section 4 in July 2010, a Final EIS in July 2011, and a ROD in September 2011.
The plaintiffs filed a lawsuit in 2011, prior to issuance of a ROD; the lawsuit challenged the adequacy of the Tier 2 FEIS and the agencies’ failure to prepare an SEIS. After the ROD was issued, the plaintiffs amended their complaint to challenge the ROD. The district court dismissed the plaintiffs’ claims challenging the adequacy of the FEIS, holding that they were unripe because they were filed before the ROD was issued. The district court also granted summary judgment for the agencies on all other issues, including the claim that an SEIS should have been prepared. In this appeal, the Court of Appeals for the Seventh Circuit affirmed the district court’s ruling.
Ripeness. The appellate court upheld the district court’s determination that claims filed prior to completion of the NEPA process are not ripe for judicial review. The court explained that NEPA claims are brought under the Administrative Procedure Act, which allows courts to review “final agency actions,” and in the context of NEPA, a final agency action occurs when the federal agency issues a ROD or other decision document. In this case, the plaintiffs filed their lawsuit prior to the issuance of a ROD, so the claims were unripe at the time the lawsuit was filed. The court held that the claims remained unripe “even though Plaintiffs amended their complaint after the issuance of the ROD.” As the court stated later in its decision, “the amended complaint does not cure the ripeness issue.” The court also rejected the plaintiffs’ argument that a claim of ‘bad faith’ becomes ripe even before the NEPA process is completed.
Administrative Record. The plaintiffs claimed that the district court erred in refusing to consider evidence outside the administrative record, to allow the plaintiffs to pursue discovery (fact-gathering), and to hold an evidentiary hearing. The appeals court held that the district court had given the plaintiffs sufficient opportunity to conduct discovery, and the plaintiffs simply had failed to take advantage of it; it also found no support in case law for plaintiffs’ demand for an evidentiary hearing. Therefore, the court upheld the district court’s decisions on these issues.
Supplementation. The plaintiffs argued that the agencies should have prepared a supplemental EIS to address updated vehicle fleet data and the impact of the project on the endangered Indiana bat. The district court had ruled that a supplemental EIS was not required, and the appellate court agreed.
Vehicle Fleet Data. The air quality analysis in the FEIS was based on 2004 vehicle fleet data. The plaintiffs argued that the agencies should have prepared an SEIS that used 2009 vehicle fleet data, which showed a higher estimate of air pollution levels per vehicle. The court held that the agencies were justified in their decision to use the 2004 data because the 2009 data were not official at the time the agencies began their analysis (indeed, the 2009 data were not finalized until October 2011, after the ROD was issued). Although plaintiffs cited evidence that the agencies were aware that using the 2009 data might jeopardize compliance with the Clean Air Act, the court concluded that the record demonstrated that the agencies made a reasoned determination not to use the 2009 data before it was finalized because of concerns about “systemic deficiencies” in that data. Moreover, the court noted that the relevant county had been updated from a maintenance area to attainment area, which rebutted the plaintiffs’ argument that there was a significant negative change in air quality in the area that would require an EIS.
Indiana Bat. The plaintiffs also alleged that the agencies should have prepared an SEIS to consider impacts on the Indiana bat. In support of their argument, the plaintiffs cited a scholarly article about the impact of White-Nose Syndrome on the bat and evidence that INDOT’s contractor cut down a single tree in violation of the terms of the incidental take statement. The court held that the scholarly article was insufficient proof that a substantial change had occurred to justify an SEIS. The court also noted that a specialist investigated the fallen tree and determined that its impacts on the bat were minimal or nonexistent. Thus, the court determined that an SEIS was not necessary.
Clean Air Act
Conformity. The plaintiffs contended that the agencies violated the Clean Air Act when they decided to use the 2004 vehicle fleet data instead of the 2009 vehicle fleet data when preparing their conformity determination for Greene County. The court held that the agencies were not required to use the 2009 data because they were not finalized at the time the agencies began their conformity analysis, nor even at the time the agencies issued the ROD. In addition, the court held that the record demonstrated the agencies made a rational decision not to use the 2009 data before it was finalized because of concerns about the quality of that data.