Case Law Updates on the Environment (CLUE)
Case Law Update Details
Highway J Citizens Group, U.A. v. USDOT
U.S. District Court - Wisconsin
Highway 164 Reconditioning Project
The project involved rebuilding, widening, and resurfacing 7.5 miles of State Highway 164 (formerly known as Highway J), a two-lane rural highway in southeast Wisconsin. Highway 164 did not meet current construction standards and had higher crash rates and injury rates compared to similar highways in the state. Problematic conditions included deteriorating pavement, insufficient sight distances at hills and intersections, steep shoulder slopes, steep grades, and intersections that lacked turn lanes or bypass lanes. The Wisconsin Department of Transportation (WisDOT) published a draft “environmental report” in December 2013 and a final environmental report in April 2015. The report concluded that the project would have no impact on economic development, would not cause indirect or cumulative environmental effects, and did not involve a high degree of controversy. WisDOT then determined, and FHWA agreed, that the project qualified for a categorical exclusion (CE) that covered “[m]odernization of a highway by resurfacing, restoration, rehabilitation, reconstruction, adding shoulders, or adding auxiliary lanes (including parking, weaving, turning, and climbing lanes).”
The plaintiffs sued WisDOT and FHWA in 2015 to challenge the agencies’ decision to not prepare an EA or EIS for the project. FHWA filed the certified administrative record on March 2, 2016, and the plaintiffs did not file a motion to supplement the record before the court’s deadline to do so (March 7, 2016). Fifteen days after that deadline, the plaintiffs filed their brief in support of their motion for summary judgment. The plaintiffs attached to their brief two exhibits that were not in the certified administrative record: (1) a 2001 EIS that was prepared for a prior project involving the highway, and (2) a February 22, 2016, letter from FHWA’s counsel to the plaintiffs explaining why the agencies did not prepare an EIS or EA for the project. FHWA filed a motion to strike the two exhibits. The court held that the exhibits were extra-record documents and granted FHWA’s motion to strike the exhibits and the portions of the plaintiffs’ brief that relied on the exhibits.
Administrative Record. The court explained that judicial review is generally limited to the record before the agency when it made its decision, and the record prepared by the agency is presumed to be complete and accurate. Neither exhibit was in the certified administrative record that the agencies filed, and the plaintiffs had not timely filed a motion to supplement the record; therefore, the exhibits were extra-record documents. The plaintiffs argued that the court should have taken judicial notice of the 2001 EIS. The court, however, explained that it could only take judicial notice of the existence of a document, but it could not take judicial notice of the document’s substance. In addition, the court held that judicial notice was not a substitute for filing a timely motion to supplement the record. The court also held that the February 22, 2016, letter was not part of the record the agency reviewed prior to making its decision. Thus, because the plaintiffs did not file a motion to supplement the record by the applicable deadline, the court held that their exhibits were extra-record evidence and granted FHWA’s motion to strike the exhibits.