Case Law Updates on the Environment (CLUE)
Case Law Update Details
Protecting Arizona’s Resources and Children v. FHWA
U.S. District Court - Arizona
Loop 202 South Mountain Freeway
The project is a proposed eight-lane, 22-mile highway to connect the I-10 Maricopa Freeway to the I-10 Papago Freeway, which is intended to alleviate current and future traffic problems as a result of projected economic and population growth. The highway would run adjacent to the boundary of the Gila River Indian Community (GRIC), and would cut through three acres of Phoenix South Mountain Park Preserve. The park preserve and its surrounding areas contain cultural resources and are used by GRIC religious practitioners. The freeway project had been included in the long-range transportation plan for the Phoenix metropolitan area since the 1980s. The NEPA scoping process included twelve years of meeting with a citizen advisory group, on which the plaintiffs were represented, as well as intergovernmental consultation with GRIC.
The plaintiffs sued FHWA and Arizona DOT, challenging the project under NEPA and Section 4(f). The NEPA claims challenged multiple parts of the final EIS, including the statement of purpose and need, the range of alternatives, the analysis of impacts, and the discussion of mitigation measures. Based on Section 4(f), the plaintiffs claimed that the agencies did not consider all prudent and feasible alternatives, and failed to conduct all possible planning to minimize harm from the project. The court ruled for the agencies on all claims.
Purpose and Need. Plaintiffs alleged that the purpose and need discussion in the EIS was unreasonably narrow in that it created a preordained outcome. The court noted that the freeway project’s inclusion in long-range transportation plans for several decades did not, in and of itself, establish that the outcome of the environmental review was predetermined. The court held that the EIS’s “lengthy and elaborate discussion” of socioeconomic factors, regional transportation capacity, and projected growth supported the agencies’ determination that a need for the project still existed. More generally, the court rejected the plaintiffs’ argument that it was improper for FHWA to base its purpose and need statement on goals established in the metropolitan long-range transportation plan:
Plaintiffs’ argument seems to suggest that the Agencies should have disregarded the thirty-plus years of work done by [the metropolitan planning organization] and began anew a comprehensive analysis of the area’s transportation needs before completing the EIS. That, however, is not what the law requires and Plaintiffs have not demonstrated otherwise. To the contrary, federal law requires states to develop long-range transportation plans from which federally-funded highway and transit projects must flow.
[Appendix A to 23 CFR Part 450] contains a comprehensive discussion of the importance of utilizing the transportation planning process to inform the NEPA process. The Appendix specifically addresses how transportation planning can be used to shape a project’s purpose and need in the NEPA process and explains that “[a] sound transportation planning process is the primary source of the project purpose and need.”... The Court therefore finds that the Agencies’ use of the [metropolitan long-range transportation plan] to develop the purpose and need of the proposed action ... was not improper, was consistent with, and indeed mandated by, federal law.
Thus, the court ruled against the plaintiffs on their claim that the purpose and need statement was unreasonably narrow.
Range of Alternatives. The plaintiffs argued that the agencies did not consider a reasonable range of alternatives, claiming that the agencies failed to study any of the alternatives that they had submitted for consideration during the NEPA process. The agencies had used a screening process to evaluate proposed alternatives; those that satisfied the purpose and need for the proposed action were analyzed in more detail in the EIS. The alternatives proposed by the plaintiffs did not make it past the screening process. The court held that the 70-page alternatives analysis in the EIS, which explained the screening process, demonstrated that “extensive work was performed to develop reasonable alternatives.” The court ruled, therefore, that the range of alternatives considered was sufficient and was not arbitrary or capricious.
Population Forecasts. The plaintiffs claimed that the analysis of the no-build alternative in the EIS was flawed because the agencies assumed the same employment and population growth would occur with or without the freeway project. The plaintiffs argued that when evaluating the impacts of the no-build alternative, the agencies should have used a different model of projected growth. The court, however, found that the administrative record demonstrated that the model of projected growth was not dependent on any induced growth from the freeway project. The study area had already experienced significant population growth without the freeway project, and projections of future growth and development were expected to occur whether or not the freeway project was built. Thus, the court rejected the plaintiffs’ argument that the agencies should have used different projections to evaluate the no-build alternative.
Direct Effects. The plaintiffs argued that the EIS did not adequately analyze impacts on GRIC, impacts on children’s health, impacts of mobile source air toxic (MSAT) emissions, impacts of trucks, and impacts associated with transportation of hazardous materials.
Impacts on GRIC. GRIC alleged that the EIS should have separately analyzed the project’s impacts on the Indian Community. The court, however, held that most of the impacts on the Indian Community were analyzed as part of the EIS’s general consideration of environmental impacts, and GRIC did not demonstrate why the environmental impacts analyzed in the EIS did not equally apply to the Indian Community. The court also held that the EIS evaluated certain other impacts that specifically affected the Indian Community, and GRIC did not demonstrate how those analyses were inadequate. The court also noted that the agencies conducted over 100 meetings with GRIC during the planning process to consider their concerns related to the project. The court concluded that the agencies adequately analyzed the project’s impacts on GRIC.
Air Quality - Impacts on Children’s Health. The plaintiffs claimed that the EIS did not adequately consider impacts on children’s health, in violation of NEPA and Executive Order 13045. The agencies did not separately analyze the project’s impacts on children’s health. However, as a part of their air quality conformity analysis, they determined that the project would not cause any violations or delay in NAAQS attainment. They reasoned that the project would not disproportionately affect children’s health because it complied with the NAAQS, which are set at levels to protect sensitive populations, including children. The court agreed, following the holding of other courts that “NEPA’s requirements are per se satisfied by showing compliance with NAAQS.”
Impacts of Mobile Source Air Toxics. The plaintiffs argued that the agencies did not adequately consider the impacts of MSATs. The EIS estimated MSAT emissions in the broader study area but did not analyze near-roadway MSAT emissions because it was not possible with the model that the agencies used. The agencies argued that even if they had conducted a corridor analysis of MSAT emissions, EPA did not set MSAT emission thresholds for evaluating the results of such an analysis. The EIS also explained that MSAT emissions would be significantly reduced under either a build alternative or the no-action alternative. The court ruled against the plaintiffs on this claim, holding that the agencies’ conclusions regarding the MSAT analysis were not arbitrary and capricious.
Impacts of Trucks. Plaintiffs challenged the agencies’ estimates of truck traffic. The agencies argued that their estimates of truck traffic were in line with truck traffic on other freeways and truck traffic on Interstate 10 near the proposed freeway project. The court held that the plaintiffs failed to demonstrate that the agencies’ estimate of truck traffic was arbitrary or capricious.
Impacts of Hazardous Materials Transportation. The plaintiffs also challenged the agencies’ decision not to analyze the impacts of trucks carrying hazardous materials. The agencies had concluded that, given existing state and federal regulations, any hazardous materials incidents were speculative. NEPA does not require analysis of impacts that are not reasonably foreseeable. The court agreed with the agencies, holding that their conclusion was reasonable and that they did not need to analyze the impacts of trucks carrying hazardous materials.
Mitigation. The plaintiffs also claimed that the agencies did not adequately discuss mitigation measures. In particular, the plaintiffs argued that the agencies did not conduct detailed enough project design to allow them to adequately analyze the mitigation measures, and that the discussion of mitigation measures was not detailed enough. The agencies claimed that federal law prohibited them from conducting any further project designs before completing the NEPA process, a point on which the court agreed. The court explained that NEPA does not require a fully developed mitigation plan; rather, agencies only need to discuss mitigation in sufficient detail to ensure that environmental impacts are fully evaluated. The court concluded that the EIS sufficiently discussed mitigation measures and ruled against the plaintiffs on this claim.
Prudent and Feasible Avoidance Alternatives. The plaintiffs claimed that the agencies failed to consider prudent and feasible alternatives that would avoid using the South Mountain Park Preserve. The agencies argued that they evaluated other alternatives but concluded that they either did not meet the project’s purpose and need or were not feasible. In particular, the agencies found that (1) shifting the alignment south of the park would place the alignment within the GRIC reservation boundary, and GRIC had declared its opposition to allowing the project to be located on reservation lands; (2) shifting the alignment far enough south to avoid the GRIC reservation would not meet the purpose and need, because the alternative route would be too far away from Phoenix – more than 30 miles; and (3) shifting the alignment to the north of the park would cause extensive residential and business displacements and also would not meet the purpose and need, because they would adversely impact existing freeway facilities. The court ruled that the agencies “acted reasonably in their determination that no feasible and prudent alternatives exist that would avoid impacts to SMPP [South Mountain Park and Preserve].”
Minimization of Harm. The plaintiffs also argued that the agencies did not adequately plan to minimize harm to the park preserve, and that the freeway project would destroy areas that GRIC members considered sacred. In response, the agencies cited a number of measures to mitigate and minimize impacts to the park preserve and cultural property, which included acquiring land adjacent to the park preserve and implementing design measures to reduce the project’s impacts on noise, views, habitat, and cultural resources. The court noted that the plaintiffs failed “to propose any specific measures that they believe the Agencies should have addressed but did not,” and it otherwise concluded that the agencies complied with Section 4(f) by conducting all possible planning to minimize harm from the project.