Case Law Updates on the Environment (CLUE)
Case Law Update Details
Fath v. Texas DOT
U.S. District Court - Texas
MoPac South and SH 45 West
This case involved a series of highway projects carried out by the Texas DOT and the Central Texas Regional Mobility Authority (“CTRMA”) to expand Texas State Highway 1 Loop (“MoPac South”) and State Highway 45 West. The projects included: (1) adding crossing bridges across MoPac South to eliminate two signalized intersections (“the Intersection Project”); (2) constructing a new tolled freeway to extend SH 45 West (the “SH 45SW Project”); and (3) adding toll lanes on MoPac South (“Express Lanes Project”). Two of the projects were treated as federal actions requiring NEPA review, and one was treated as a state project:
The Intersections Project and the Express Lanes project were federally funded and therefore required NEPA review. Acting in the capacity of FHWA under a NEPA assignment program, TxDOT issued a Final EA for the Intersections Project in December 2015. At the time of the court’s opinion, the NEPA review for the Express Lanes Project was still under way.
Because the SH 45SW project involved only state and local funding, and did not require federal permits, TxDOT treated the SH 45SW Project as a non-federal project and did not prepare a NEPA document. TxDOT completed a state environmental document for the SH 45SW Project and approved that document in March 2015.
The three environmental reviews considered the impacts and alternatives for each project individually, and did not consider the impact and alternatives of the projects collectively.
The plaintiffs filed this lawsuit in February 2016. The plaintiffs alleged that the agencies violated NEPA by improperly segmenting the three projects and failing to evaluate their cumulative impacts. They also claimed that defendants had violated NEPA challenged the adequacy of the EA for the Intersections Project and alleged that the projects violated Section 4(f) because traffic noise and the visual impact of sound walls would be a constructive use of the Lady Bird Johnson Wildflower Center. In this decision, the court denied the agencies’ motion to dismiss some of the plaintiffs’ claims, and allowed the litigation to proceed to the next phase.
Preclusion. The agencies argued that the plaintiffs’ segmentation claims should be dismissed under the legal theories of “claim preclusion” and “issue preclusion” because the same claims had been litigated in a previous case, Save Barton Creek Association v. FHWA. The previous case concerned challenges to construction projects involving a portion of MoPac South and a planned (but never built) segment of SH 45. The court found that the Save Barton Creek case and the current case involved different facts:
[A]lthough part of the Express Lanes Project and the Intersections Project are expansions to the portion of MoPac South in Save Barton Creek, the construction projects in this case are new and are different from the construction project in Save Barton Creek. Nothing in the complaint or opinion in Save Barton Creek indicates that case encompassed, considered, or applied to future expansions of MoPac South, particularly the expansions at issue in this case. In short, the facts are not the same.
Therefore, the court held that the plaintiffs’ claims in this case were not precluded by the decision in Save Barton Creek.
Finality/Ripeness. The defendants contended that the segmentation and cumulative impact claims regarding the Express Lanes Project should be dismissed because there was no final agency action and they were not ripe for judicial review. The court held that, while the EA for the Express Lanes project was not yet final, the agencies had made a final decision to segment the three projects for purposes of environmental review, and therefore the segmentation claim was ripe for review. The court explained:
[I]t is undisputed that Defendants have made the decision to segment the three projects for purposes of environmental review and thus perform three separate environmental analyses. The dispute is whether such segmentation itself is proper, not whether the resulting environmental decisions are proper. In other words, Plaintiffs complain of Defendants’ segmentation procedure, which has already taken place. The decision to segment is not tentative. The scope of the three projects’ environmental review is set, and legal consequences will flow from this segmentation decision.
Therefore, the court held that the segmentation claim was ripe for review. The court also held that TxDOT had made a final decision to not consider cumulative impacts of the projects, because the final environmental decisions for two of the three projects had already been issued without considering cumulative impacts.
Applicability of NEPA to State-Funded Project. TxDOT explained that it did not conduct an environmental study of the SH 45SW Project under NEPA because the project relied only on state and local funding and therefore was not a federal action that triggered NEPA. The plaintiffs contended that the SH 45SW Project was a federal action because it was potentially subject to control by USFWS due to the potential for the project to cause incidental take of endangered species. The court held that further development of the factual issues was needed before the claim could be resolved. Therefore, the court denied TxDOT’s motion to dismiss this claim, and the claim remained under consideration in the lawsuit.