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Case Law Updates on the Environment (CLUE)

Case Law Update Details

Case Title

Conservation Law Foundation v. FHWA

Case No.

2007 WL 2492737

Court

U.S. District Court - New Hampshire

State

New Hampshire

Date

8/30/2007

Project

I-93 Project

Project Type

Highway

Project Description

The Interstate 93 (I-93) Project involves the widening of a 19.8-mile section of I-93 between Salem and Manchester, New Hampshire. In 1991, the FHWA and the New Hampshire Department of Transportation (NHDOT) initiated preliminary designs and environmental analyses of alternatives and impacts of the widening of I-93. In 1999, following the development of a statewide traffic model, NHDOT restarted the environmental review process, proceeding first with a scoping phase and then with an EIS phase. In April 2004, FHWA and NHDOT issued a final EIS (FEIS) for the project. In June 2005, FHWA issued a Record of Decision (ROD) approving the project.

Case Summary

The plaintiff filed suit against FHWA and NHDOT alleging that the ROD violated NEPA and the Federal Aid Highway Act. The parties filed cross-motions for summary judgment. The court partially granted the plaintiff’s motion for summary judgment and partially granted the defendants’ motions for summary judgment, and ordered the defendants to prepare a supplemental EIS. No further action was taken in the case.

Key Holdings

NEPA

Evaluation of Alternatives. In its 2007 decision, the District Court held that the defendants’ exclusion of rail from further consideration was not arbitrary and capricious. The court reasoned that the defendants undertook a “rigorous, objective analysis of rail,” evaluating three separate studies concerning rail and analyzing four rail options on three different rail lines, before eliminating rail from further detailed consideration. The court stated that the plaintiff failed to show that NHDOT improperly prejudged the rail alternative. The court also stated that “evidence that an agency preferred a particular alternative from the outset of the NEPA process does not, by itself, violate NEPA.” The court continued that this is “particularly true in cases such as the present one, in which a state agency that is seeking approval for a major federal action is actively involved in the preparation of the EIS.” The court also noted that the defendants’ exclusion of the rail alternative was not arbitrary and capricious simply because they relied on vehicle operations and parking cost assumptions in the administrative record in excluding rail. The court further held that the defendants’ agreement with EPA that EPA would not recommend further studies of the rail alternative had no effect on the defendants’ execution of their NEPA duties.

Analysis of Direct Environmental Effects.

In its 2007 decision, the District Court held that the defendants adequately analyzed the direct environmental effects of the project and its alternatives. The court addressed three areas of concern raised by the plaintiff: (1) air quality; (2) water quality; and (3) wildlife.

  • Air Quality.  The court held that the defendants adequately addressed the public health and environmental effects of air pollution.  The court reasoned that even though the defendants did not address the effects of mobile-source air toxics (MSATs) emissions in the EIS, the defendants appropriately based their analysis of air quality on EPA’s then-current regulatory vehicle emissions model, which did not have the capability to predict MSATs.  Further, the new model became available before the issuance of the ROD, and the agencies addressed the effects of MSATs in the ROD using project-specific data.  The court also held that the defendants properly considered the regional air quality effects of the project in conformity with the Clean Air Act’s Conformity Rule.
  • Water Quality. The court declined to consider the plaintiff’s claim that the defendants failed to demonstrate that total chloride discharges from the project will be reduced to the point that all affected waters will meet state and federal water quality standards for chloride. The court stated that because NHDOT obtained its water quality certificate from the state, the state courts had jurisdiction over such claims, not federal courts. The court also held that the defendants’ statement in the ROD that NHDOT would participate in another study of the effects of chloride pollution was not arbitrary and capricious, nor did it violate a commitment in the FEIS.
  • Wildlife.  The court held that the defendants adequately assessed the project’s impact on wildlife.  The court stated that the plaintiff failed to show that communications between NHDOT and the director of New Hampshire Fish and Game constituted improper manipulation of the NEPA process.  Rather, the court stated that “NEPA encourages cooperation and consultation with independent agencies throughout the process.”
Analysis of Indirect Environmental Impacts (Traffic). In its 2007 decision, the District Court held that the defendants erred in failing to account for two different population growth forecasts and that the omitted information was significant.  The court reasoned that although “NEPA does not require an agency to update its population forecasts whenever new forecasts become available, it ordinarily may not rely on outdated forecasts when it sets out to prepare an EIS.”  The court stated that the defendants presented no explanation as to why they relied on an outdated population growth forecast rather than more recent forecasts.  The court also held that the defendants improperly failed to revise their traffic projections to account for an induced population growth forecast.  The court reasoned that the induced population growth forecast was not insignificant, but rather had the possibility of casting doubt on the agency’s statements concerning the selected alternative’s effectiveness and affecting the agency’s conclusions regarding the project’s impact on air quality.

Segmentation. In its 2007 decision, the District Court upheld the defendants’ selection of the southern terminus of the project, rejecting plaintiffs’ argument that the defendants’ decision to terminate the project at the Massachusetts border was improper segmentation. The court reasoned that even if a different termination point were a more “logical terminus,” the decision to use a different terminus is not a violation of NEPA unless the selected terminus was illogical. Because the selected terminus was logical, the defendants did not violate NEPA.

Mitigation Measures. In its 2007 decision, the District Court held that the defendants adequately undertook efforts to mitigate the project’s impact on air quality, water quality, and wildlife. The court adopted its earlier holding that the defendants’ assessment of direct environmental effects was adequate under NEPA and the Federal Aid Highways Act.

Supplemental EIS. In its 2007 decision, the District Court held that the defendants need not restart the EIS process, but rather must prepare a supplemental EIS that specifically considers the population growth forecasts that the defendants failed to consider in the EIS. Specifically, the court required the defendants to consider how the population growth forecasts affect the analysis of both the effectiveness of the preferred alternative as a traffic congestion reduction measure and the indirect effects of the additional population predicted by those forecasts on secondary road traffic and air quality.

Construction Design Standards. In its 2007 decision, the District Court held that the defendants did not violate the Federal Aid Highways Act by failing to conform to NHDOT’s design standards. The court reasoned that the federal design standards do not appear to require improvements to the interstate highway system to conform to state design standards.

Harmless Error. In its 2007 decision, the District Court held that the defendants’ errors with respect to the analysis of the project’s impacts on traffic were not harmless error. The court reasoned that the FEIS did not disclose sufficient information to permit meaningful public comment on the project’s effectiveness as a traffic control measure or the indirect effects that the project could have on secondary road traffic and air quality. The court further stated that the purposes of NEPA would not be achieved if the defendants’ failure to take into account traffic generating effects of the forecasted growth in population were treated as harmless.

Supplementation of Administrative Record. In its 2006 decision, the District Court granted in part and denied in part the defendants’ motions to strike the plaintiff’s supplemental record documents.  The court held that the administrative record “should be limited to documents that were before FHWA at the time of decision.”  The court considered the three sets of documents at issue in the defendants’ motions.  The court struck the first document from the administrative record because it post-dated the record of decision and thus could not have been considered by FHWA in the decision-making process.  The court held that the second set of documents should not be stricken from the record because the documents appeared to come within the exception that expert testimony may be admitted to show inadequacies in the agency’s research or analysis.  The court held that the third set of documents should not be stricken from the record because the court could not determine whether the documents at issue were before FHWA at the time of its decision.  Subsequently, the court denied the plaintiff’s motion to supplement the administrative record, holding that the documents that the plaintiff’s sought to include were not relevant to the decision at issue.

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