Case Law Updates on the Environment (CLUE)
Case Law Update Details
Paradise Ridge Defense Coalition v. Hartman
U.S. District Court - Idaho
The project involved improvements to a segment of US-95 south of Moscow, Idaho. The existing two-lane undivided highway would be replaced by a four-lane highway with a combination of a 34-foot median and a center turn lane. The Idaho Transportation Department (ITD) and FHWA first began studying improvements to US-95 in 1999, and completed an EA and FONSI in 2003. The Paradise Ridge Defense Coalition sued to challenge the EA and FONSI, and a court ruled that the agencies were required to prepare an EIS. The agencies then prepared an EIS for the project, and FHWA issued a ROD in March 2016. During the NEPA scoping process, the agencies identified ten build alternatives in three possible corridors. The agencies screened the alternatives based on 23 criteria, and selected one alternative in each of the three corridors for detailed study in the EIS. The EIS identified Alternative E-2 as the preferred alternative. Of the four alternatives studied in the EIS (three build alternatives and the no-action alternative), Alternative E-2 would be located closest to Paradise Ridge, a privately owned area that contained remnants of the Palouse Prairie ecosystem.
The plaintiff alleged that the agencies violated NEPA. In particular, the plaintiff claimed that the EIS and ROD were deficient in the range of alternatives studied, impacts on wetlands, evaluation of vehicle crash data, analysis of safety risks from wildlife collisions, and reliance on not-yet-final mitigation plans. The plaintiff also claimed that FHWA followed an improper process for approving the EIS and that the agencies had a predetermined outcome. Although the court noted that there was “nearly” predetermination and that the analysis in the EIS and ROD was “barely” sufficient, the court ruled in favor of the agencies on all claims. As of January 2018, an appeal was pending in the U.S. Court of Appeals for the Ninth Circuit.
Range of Alternatives. The plaintiff alleged that the agencies had arbitrarily selected the three alternatives that were studied in the EIS. During the NEPA scoping process, the agencies identified ten build alternatives in three possible corridors. The agencies gave numerical scores to each alternative based on 23 criteria, and selected the highest-ranked alternative for each corridor to be studied in more detail in the EIS. The plaintiff argued that the agencies should have selected the highest-ranked alternatives overall, rather than the highest-ranked alternative for each corridor. The court noted that upon closer examination, the differences between Alternative E-2 and other top-ranked alternatives were not significant. The court concluded that the differences between the top alternatives overall and Alternative E-2 were not so significant that it was arbitrary and capricious for the agencies to have selected E-2 as one of the alternatives for detailed study in the EIS, while dismissing higher-ranked alternatives without detailed study.
Impacts to Wetlands. The plaintiff challenged the selection of Alternative E-2 because it would have the greatest impact on wetlands. (Alternative E-2 would impact 3.61 acres of wetlands, while the other two build alternatives would impact 1.85 acres and 0.99 acres.) The plaintiff relied on Executive Order 11990, which directs agencies to avoid new construction in wetlands unless there is “no practicable alternative” and the action includes all practicable measures to minimize harm to wetlands. The court explained that an agency is not required by Executive Order 11990 to select the alternative with the least impact to wetlands. The court noted that FHWA selected Alternative E-2 after balancing various environmental and economic factors, including travel time and effects on floodplains, ungulate populations, and streams. The court concluded that this balancing analysis complied with NEPA and Executive Order 11990. (Note: The court did not address compliance with Section 404 of the Clean Air Act, which was not at issue in this lawsuit.)
Vehicle Crash Projections. The plaintiff argued that the agencies’ vehicle crash projections were unreliable. The agencies predicted vehicle crashes for each alternative using the AASHTO Highway Safety Manual. The plaintiffs argued that the agencies inappropriately compared the alternatives based on crash rates predicted by the model, without giving a “confidence interval” (i.e., margin of error) for the data. The court agreed that the agencies had considered the modeled values, but noted the agencies also had used engineering judgment by considering factors that contribute to differences in safety such as access points, at-grade intersections, approaches, overall length, and number of lanes. The court concluded that the analysis in the ROD was not arbitrary and capricious: “A fair reading of the ROD shows that it relied on engineering judgment and the trends in crash projections, rather than relying on a rank comparison of projected crash numbers.”
Wildlife Collisions. The plaintiff argued that the EIS did not adequately address the safety risks from wildlife collisions. The EIS projected that Alternative E-2 would result in the most wildlife collisions of the three build alternatives, and that the risk of wildlife collisions would decrease with all three build alternatives. The court concluded that the agencies sufficiently evaluated the environmental impacts of potential wildlife collisions. The court noted that the ROD explained that wildlife collisions had been considered, and the ROD included mitigation measures to reduce the risk of wildlife collisions. Even though the agencies did not factor the risk of wildlife collisions into their vehicle crash projections, the court held that the ROD’s analysis was sufficient because the risk of wildlife collisions would be low.
“Prior Concurrence” Review. The plaintiff argued that FHWA followed improper procedures in approving the EIS, because the FHWA Idaho Division Office did not submit the decision to FHWA headquarters for prior concurrence. The court noted that FHWA guidance requires prior concurrence in certain circumstances, such as when another federal agency indicates opposition to a project on environmental grounds. For this project, EPA had reviewed the draft EIS and rated the draft EIS as EO-2 (Environmental Objections, Insufficient Information) because it had “serious concerns” regarding Alternative E-2. Nonetheless, the court ruled that prior concurrence by FHWA headquarters was not required. The court explained that EPA had objected only to Alternative E-2, not to the project as a whole. The court also noted that although EPA’s objection “could reasonably be interpreted as” meeting the characteristics in FHWA’s guidance, “the Guidance does not mandate concurrence in that event (but only notes that concurrence should be ‘considered’), and the entire tenor of the agency’s regulation is to give District offices broad discretion in deciding whether to seek concurrence.” The court concluded that “the deference due to the agency tips the scale and directs a finding that the FHWA accurately interpreted its own regulations to not require prior concurrence in this instance.”
Invasive Weed Mitigation. The plaintiff argued that the EIS and ROD improperly relied on invasive weed mitigation plans that had not been finalized. The court explained that NEPA does not require a fully developed mitigation plan, but “requires only that mitigation be discussed in sufficient detail to ensure that environmental consequences have been fully evaluated.” The court concluded that the EIS contained a “lengthy evaluation” of mitigation measures, and that the ROD required incorporation of mitigation measures. Therefore, the court held that the invasive weed mitigation plans did not violate NEPA.
Predetermination. The plaintiff alleged that ITD was biased in the NEPA process and had predetermined that it would select Alternative E-2. Although the court observed that “ITD’s clear preference for the E-2 alternative nearly tipped over to a predetermination,” it concluded that it could not find evidence that the result was predetermined. The court noted that FHWA (not ITD) “was the final decision-maker, and plaintiffs have pointed to no evidence that FHWA’s decision was predetermined.”