Case Law Updates on the Environment (CLUE)
Case Law Update Details
Petzel v. Kane County DOT
U.S. District Court - Illinois
The Longmeadow Parkway is a new 5.6-mile four-lane highway in Kane County, Illinois, that would include a new bridge crossing over the Fox River. The project was undertaken by the Kane County DOT with funding from the Illinois DOT and FHWA. An EIS was prepared in 2001, and FHWA issued a ROD approving the project in 2002. After Kane County proposed turning the project into a tollway, the agencies prepared a reevaluation of the EIS, and FHWA determined in 2009 that a supplemental EIS was not necessary. After this lawsuit was filed in May 2016, the agencies prepared another reevaluation of the EIS, and FHWA issued a FONSI in November 2016, documenting the agency’s determination that a supplemental EIS was not required.
The plaintiff alleged violations of NEPA, Section 4(f) of the Department of Transportation Act, and Section 6(f) of the Land and Water Conservation Fund Act. The defendants (which included USDOT, FHWA, National Park Service, Illinois DOT, Illinois Department of Natural Resources (DNR), Kane County DOT, and other local agencies and officials) filed motions to dismiss the case for various reasons, which the court granted.
Supplementation. The plaintiff alleged that FHWA violated NEPA by failing to supplement the EIS after substantial changes to the project and in light of new information. The plaintiff argued that FHWA was required to supplement the EIS because it had been more than three years since FHWA’s 2009 determination that no supplemental EIS was necessary. The plaintiff cited an FHWA regulation (23 C.F.R. § 771.129(b)) that requires an EIS to be updated if major steps advancing the proposed action are not taken within three years of the last EIS. The court explained that the regulation does not automatically require an EIS to be updated every three years in all circumstances. The court held, moreover, that the regulation did not require reevaluation because FHWA and the state and local agencies had taken major steps to advance the project since preparing the EIS. Therefore, the court dismissed the claim.
Statute of Limitations. The plaintiff claimed that FHWA violated NEPA by failing to adequately address environmental impacts and failing to examine a reasonable range of alternatives in the 2001 EIS, which FHWA had approved in its 2002 ROD. The plaintiff also challenged FHWA’s 2009 decision not to supplement the EIS. The court held that these claims were barred by the applicable six-year statute of limitations, because the plaintiff’s lawsuit was filed in 2016, more than six years after FHWA issued a ROD approving the EIS (in 2002) and more than six years after FHWA determined that no supplemental EIS was necessary (in 2009). Therefore, the court dismissed these claims as untimely. (FHWA had not issued a Federal Register notice here triggering a 150-day statute of limitations pursuant to 23 U.S.C. § 139, so the lawsuit was subject to a general six-year statute of limitations that applies to civil lawsuits brought against federal agencies.)
Ripeness. The plaintiff filed his complaint alleging that FHWA had violated Section 4(f) by improperly approving the use of a public park known as Brunner Farm. But the plaintiff filed the complaint in August 2016, and FHWA did not issue its FONSI until November 2016. The plaintiff argued that the decision being challenged was actually a January 2016 letter that set forth several conclusions regarding the applicability of Section 4(f) to the project. But the court held that the FONSI, not the letter, was a final agency action, because only the FONSI represented the consummation of the agency’s decision-making process. Because the lawsuit was filed before the FONSI was issued, the court dismissed the Section 4(f) claim as unripe. The court explained that a “challenge to agency conduct is ripe only if it is filed after the final agency action.”
Mootness. The plaintiff alleged that the National Park Service violated Section 6(f) of the Land and Water Conservation Fund Act by improperly approving a partial conversion of a park that the Dundee Township Park District had previously acquired with support from the federal Land and Water Conservation Fund. The Dundee Township Park District and the Kane County DOT agreed in 2000 to transfer a portion of the park to Kane County DOT for the Longmeadow Parkway in exchange for additional parkland. However, the National Park Service voluntarily rescinded its approval of the transfer in 2017. The court held that the plaintiff’s challenge to the since-withdrawn approval was moot, and the court dismissed the plaintiff’s Land and Water Conservation Fund Act claim.
11th Amendment Immunity. The Illinois DOT and the Illinois DNR argued that the Eleventh Amendment barred the plaintiff’s claims against them. The Eleventh Amendment bars suits against states (or state agencies) unless the state has waived its sovereign immunity. However, the Eleventh Amendment does not bar claims against state agency officials for prospective injunctive relief. The court held that the plaintiff could not sue the DOT and DNR because the state had not waived its sovereign immunity. The court also held that the plaintiff could sue the secretaries of the DOT and DNR, but that the plaintiff’s complaint did not allege sufficient facts to explain how the DOT or DNR had violated NEPA or Section 4(f). Therefore, the court dismissed the claims against the Illinois DOT and DNR and their secretaries.