Case Law Updates on the Environment (CLUE)
Case Law Update Details
Austin v. Alabama DOT
U.S. District Court - Alabama
I-59/20 Central Business District Bridge
This project involved the proposed replacement of an elevated highway section, known as the Central Business District (CBD) Bridge, on Interstate 59/20 in downtown Birmingham, Alabama. The total length of this elevated section was approximately 1.25 miles. The Alabama DOT initially proposed to reconstruct the existing bridge, but after further investigation, determined that that full replacement was needed. FHWA and Alabama DOT jointly prepared an EA for the proposed replacement, and FHWA then issued a FONSI approving the project. The EA included a full analysis of two alternatives: the No Build Alternative and a single Build alternative; it also documented two previous iterations of the Build alternative that had been considered and rejected.
After the FONSI was issued, eight individuals – all residents of Birmingham – filed suit against FHWA and Alabama DOT, claiming that the EA and FONSI violated NEPA. Primarily, the lawsuit challenged FHWA’s issuance of a FONSI, arguing that an EIS should have been prepared. Alabama DOT moved to dismiss the plaintiffs’ claims based on a lack of standing. In addition, both FHWA and Alabama DOT moved for summary judgment. In this decision, the court declined to dismiss the claims for lack of standing, but ruled in favor of FHWA and Alabama DOT on the merits, upholding FHWA’s decision to issue the FONSI.
Adequacy of EA/FONSI. The plaintiffs claimed that the project’s impacts were significant and therefore required preparation of an EIS. They point to the alleged “social, economic and health” effects of the Project on the CDB community, the cumulative impacts of the Project, the “high degree” of controversy about the Project, and the agencies’ statements regarding the “regional significance” of the Project. The court addressed each of these issues and found that none of them required an EIS:
· Socio-Economic Impacts. The plaintiffs contended that the EA did not adequately consider “social, economic, and health” impacts of the bridge replacement project. The court noted that, under NEPA case law, “potential socioeconomic impacts alone do not trigger a requirement to prepare an EIS.” Instead, the need for an EIS must be justified based on the project’s impacts on the physical environment. The court also found that the EA actually did address socio-economic impacts and the FONSI included mitigation commitments for those impacts. Further, the court found that FHWA had considered declarations submitted by the plaintiffs’ experts, but had reasonably relied on the views of its own experts in concluding that the socio-economic impacts were not significant.
· Cumulative Impacts – Effects of Past Actions. The plaintiffs contended that the cumulative impacts analysis was flawed because the EA did not adequately consider the impacts of past actions, including “impacts caused to the human environment beginning with the original construction of the section of highway subject of the Project in the 1960s.” The court noted that the cumulative impacts analysis actually did take into account the “barrier effect” caused by the existing bridge, but also noted that the barrier effect would continue to exist under the No Build alternative, so it was not caused by the proposed project. The court concluded that the plaintiffs had not shown that the agencies failed to take a hard look at the cumulative impacts of the project. In reaching this conclusion, the court observed that “As the Plaintiffs themselves acknowledge, NEPA does not create a remedial scheme for past federal actions.”
· Controversy. The plaintiffs argued that an EIS was required because the project involved “substantial controversy,” which is one of the factors listed in the CEQ regulations for determining whether a proposed action would have significant impacts. The court held that, under NEPA case law, “public opposition, without more, does not constitute a substantial dispute about the ‘nature, size, or effect’ of the Project” and therefore does not trigger the need to prepare an EIS.
· Regionally Significant Project. The plaintiffs pointed to several statements in the record by FHWA and Alabama DOT, which referred to the proposed project as “regionally significant.” The court found that the statements regarding the project’s regional significance related to the project’s potential benefits to the region, and concluded that significant benefits were not enough to trigger the need to prepare an EIS.
Range of Alternatives. The plaintiffs claimed that the range of alternatives in the EA was inadequate, because the EA only studied the No Build and a single build alternative in detail; they claimed that the EA also should have included detailed study of other build alternatives, such as “sinking” the freeway below grade, or re-routing the freeway out of downtown, as well as the alternative of “fixing the road first and relocating it later.” The court found that the agencies had, in fact, considered other alternatives and documented the reasons for rejecting them – namely, substantially greater expense and longer time to construct. The court held that “[e]xcessive cost and delay are both permissible reasons to remove an alternative from further NEPA study, as the Agencies did here.” The court also noted that FHWA has discretion to determine the level of detail needed in analyzing alternatives, and that FHWA and Alabama DOT had discretion to determine how to allocate limited funds among projects. Lastly, the court noted that Alabama DOT had sent a letter to one of the plaintiffs specifically explaining why the alternative of re-routing the Interstate was too costly. In light of these facts, the court held that the alternatives analysis in the EA was adequate.
Predetermination. The plaintiffs claimed that FHWA and Alabama DOT had predetermined the outcome of the NEPA process by committing to issue a FONSI before the EA had been completed. They cited project notes and schedules that referred to issuance of a FONSI. The court noted that a claim of predetermination “carries a high burden of proof,” and found that the evidence cited by the plaintiffs was not sufficient to demonstrate that the agencies had predetermined the outcome of the NEPA process.