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 (TxDOT) and the Central Texas Regional Mobility Authority to expand Texas State Highway 1 Loop (“MoPac South”) and State Highway 45 West. The projects included: (1) adding overpasses across MoPac South to eliminate two signalized intersections (the “Intersections Project”); (2) constructing a new tolled freeway to extend SH 45 West (the “SH 45SW Project”); and (3) adding toll lanes on MoPac South (the “Express Lanes 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. The court ruled in favor of the agencies on all issues. As of January 2018, an appeal was pending in the U.S. Court of Appeals for the Fifth Circuit.
Segmentation – What Criteria to Apply? The court first considered the segmentation criteria that FHWA must apply. The court concluded that FHWA can rely on the criteria in its own regulations, and was not required to conduct a separate segmentation analysis using criteria in CEQ’s regulations. The court explained that the U.S. Court of Appeals for the Fifth Circuit (which includes Texas) “has consistently relied on the factors in the FHWA regulations in segmentation analyses of highway projects.” Moreover, other courts to consider the same issue had concluded that only FHWA regulations apply to segmentation analyses of highway projects. Therefore, the court held it was proper for FHWA to apply only the segmentation criteria in its regulations – i.e., whether the project (1) connects logical termini and is of sufficient length to address environmental matters on a broad scope, (2) has independent utility or independent significance, and (3) does not restrict consideration of alternatives for other reasonably foreseeable transportation improvements. 23 C.F.R. § 771.111(f).
Segmentation – Review of FHWA’s Determination. Applying FHWA regulations, the court concluded that the agencies did not improperly segment environmental analysis of the Intersections Project and the SH 45SW Project.
· Independent Utility. The court primarily focused on the “independent utility” prong. The court explained that the Intersections Project (which involved adding overpasses where two roads intersect with MoPac South) would have independent utility because if undertaken independently of the other two projects, “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.”
· Logical Termini. The court also determined that the Intersections Project had logical termini, which were 3700 feet south of one intersection and 2500 feet north of the other intersection. “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.”
· Effect on Consideration of Alternatives. Finally, the court concluded that the termini of the Intersections Project did not restrict 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. . . . Because the Intersections project is a stand-alone project that does not dictate the requirement of any other construction, it does not commit federal funds to any related projects.”
Applicability of NEPA to State-Funded Project. The plaintiffs argued that the SH 45SW Project, which did not receive federal funding, was subject to NEPA because the Authority entered into an Interlocal Agreement with two counties under which the Authority committed to consult with the U.S. Fish and Wildlife Service (FWS) to ensure the SH 45SW Project was developed in a manner that did not cause one of the counties to come into non-compliance with the Endangered Species Act. The plaintiffs contended that this agreement legally bound the Authority to obtain the FWS’s approval, which in turn made the project a federal action requiring NEPA compliance. The court disagreed, holding that the SH 45SW Project was not subject to NEPA because it did not receive any federal funding or approvals. The court explained that NEPA applies to state and local actions that are potentially subject to federal control and responsibility, where a federal agency possesses actual power to control the nonfederal activity, or where federal involvement is massive and pervasive. The court noted that “[n]o federal funds or approvals have been requested or given for the SH 45SW Project,” and “state and local funding of these projects can never be reimbursed by the FHWA.” Moreover, the court explained, “[c]onsultation with a federal agency on compliance with federal law does not amount to ‘Federal control and responsibility.’”
Adequacy of EA/FONSI. The plaintiffs argued the EA for the Intersections Project did not adequately analyze impacts to groundwater quality and endangered salamanders or the cumulative impacts of all three projects.
· Impacts on Water Quality and Endangered Species. The EA analyzed impacts on groundwater quantity and quality as well as impacts to two endangered salamander species that could be impacted by changes in water quality. The EA explained that increased runoff from the project could counteract increasing concentrations of nitrate in groundwater. It also recognized that the project would increase the risk of groundwater contamination from vehicles transporting hazardous materials, but that hazardous material traps that were already in place would mitigate this risk. In addition, it explained measures that would be implemented to reduce erosion and sediment runoff and to mitigate flooding risks. The EA concluded that the project would result in “minimal and discountable impacts to water quantity and possible but negligible impacts to water quality,” and “no effect on the salamanders.” The court held that the EA’s “analysis of potential impacts on groundwater and the Endangered Salamanders is thorough and supported by the administrative record, and not based on mere perfunctory or conclusory language.”
Cumulative Impacts. The EA concluded that “cumulative effects are not anticipated” because the Intersections Project was “not anticipated to result in direct or indirect impacts to at-risk resources.” The court noted that the EA reached this conclusion based on studies that analyzed potential effects of the Intersections Project on federal- and state-listed species, water resources, sensitive environmental features and resources, and caves that could affect water quality, quantity, and protected species. “The court conclude[d] that Defendants performed a thorough analysis of potential cumulative impacts of the Intersections project and its conclusions are not based on mere perfunctory or conclusory language.”
Constructive Use. The plaintiffs alleged that the traffic noise and visual impacts of the Intersections Project would constructively use the Lady Bird Johnson Wildflower Center (a Section 4(f) resource). TxDOT’s traffic noise technical memorandum for the Intersections Project determined that traffic noise in three locations in the park would exceed the noise threshold in FHWA regulations. TxDOT also determined that a noise barrier would reduce noise levels to below the threshold. The plaintiffs argued that TxDOT did not use proper methodology to measure and project noise levels and that TxDOT did not validate or calibrate its noise modeling. The plaintiffs also argued that TxDOT did not analyze whether the project’s impacts on aesthetics, access, and ecological integrity constituted constructive use of the park. Citing FHWA regulations (23 C.F.R. § 774.15(c)), the court explained that TxDOT was “not required to document each determination that a project would not result in a constructive use of a nearby Section 4(f) property.” The court held that the plaintiffs did not provide specific facts to support their Section 4(f) arguments, and, therefore, they did not meet their burden of alleging facts to show that the project would constructively use the park.