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 projects and failing to evaluate their cumulative impacts, by failing to conduct a NEPA analysis for the SH 45SW Project, and by preparing an inadequate EA for the Intersections Project. The plaintiffs also 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 plaintiffs’ motion for a preliminary injunction, on the grounds that the plaintiffs did not demonstrate a likelihood of success on the merits.
Preliminary Injunction. The court denied the plaintiffs’ motion for preliminary injunction, finding that they did not demonstrate a likelihood of success on the merits of their claims regarding improper segmentation, failure to analyze cumulative impacts, and failure to treat the SH 45SW Project as a federal action.
Legal Standards. The court first considered whether the segmentation issue should be decided based solely on the segmentation criteria in FHWA’s regulations or whether the court also needed to consider additional criteria set forth in the CEQ’s regulations. The court concluded that the criteria in the FHWA regulations – connecting logical termini, having independent utility, not limiting consideration of alternatives for future projects – should govern the court’s decision on whether a highway project has been improperly segmented. In other words, if the project met the three criteria in the FHWA regulations, that was sufficient to avoid segmentation. The court noted that these FHWA criteria had been interpreted in a previous court case to mean that a project also must not irretrievably commit federal funds for closely related projects. The court also noted that, for projects within a single metropolitan area, courts have focused primarily on the second factor – i.e., whether the project has independent utility.
Review of TxDOT’s Determination. Applying the criteria in FHWA's regulations, the court concluded that the plaintiffs were not likely to succeed on the merits of their claim that the Intersections Project was improperly segmented:
If pursued independently of the other projects at issue in this cause, the Intersections project would increase safety and traffic efficiency at the affected intersections and have significant utility to persons living and working near the project site. The court does not find it difficult to recognize the utility of raising a roadway to avoid having a signalized intersection with traffic on a four-lane highway. The court concludes that the Intersections project has independent justification in the increased safety and efficiency for traffic . . .
The Intersections project also satisfies the logical termini requirement. . . . The Intersections [EA] concludes that construction limits of the project “allow the intersection improvements to tie back into the existing MoPac facility north of Slaughter Lane and south of La Crosse Avenue.” The court agrees. The termini of the Intersections project allow for the objectives of the project to be met without involving portions of road that are not incidental to the improvement of the Slaughter Lane and La Crosse Avenue intersections. . . .
Moreover, the termini of the Intersections project prevent the project from restricting consideration of alternatives. . . . The construction of the Intersections project does not dictate that any other segment must be built, nor does it dictate the size or features of any other project. Finally, Plaintiffs present no evidence showing the project will irretrievably commit federal funds to any other project.
Cumulative Impacts. The court also considered the plaintiffs’ claim that TxDOT should have prepared a single cumulative impacts analysis that covered the impacts of all three projects. The court cited a technical report, prepared for the Intersections Project, which stated generally that TxDOT had evaluated the potential for cumulative impacts and concluded that cumulative effects were not anticipated. The court explained that “NEPA does not require an agency to restate all of the environmental effects of other projects presently under consideration.” The court concluded that TxDOT had appropriately decided not to incorporate a full analysis of the environmental impacts of the other projects into its EA for the Intersections Project.
Applicability of NEPA. Finally, the court considered whether the plaintiffs demonstrated a likelihood of success on the merits of their claim that the SH 45SW Project was a federal action and therefore required NEPA review. The plaintiffs argued that there was federal control over the project because of an interlocal agreement among the project funders (CTRMA and two counties), which required CTRMA to consult with USFWS to the extent necessary to ensure that the project does not result in a violation of the ESA. The court explained that NEPA only applies to major federal actions, which includes actions by nonfederal actors that “are potentially subject to federal control and responsibility.” The court held that this interlocal agreement was not enough to render the project a federal action, noting that “[c]onsultation with a federal agency or compliance with federal law does not amount to ‘Federal control and responsibility.’”