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Case Law Updates on the Environment (CLUE)

Case Law Update Details

Case Title

Protecting Arizona's Resources and Children v. FHWA

Case No.

2017 WL 6146939

Court

U.S. Court of Appeals - 9th Circuit

State

Arkansas

Date

12/8/2017

Project

Loop 202 South Mountain Freeway

Project Type

Highway

Project Description

The project is a proposed eight-lane, 22-mile highway to connect the I-10 Maricopa Freeway to the I-10 Papago Freeway, which is intended to alleviate current and future traffic problems as a result of projected economic and population growth. The highway would run adjacent to the boundary of the Gila River Indian Community (GRIC), and would cut through three acres of Phoenix South Mountain Park Preserve. The park preserve and its surrounding areas contain cultural resources and are used by GRIC religious practitioners. The freeway project had been included in the long-range transportation plan for the Phoenix metropolitan area since the 1980s. The NEPA scoping process included twelve years of meeting with a citizen advisory group, on which the plaintiffs were represented, as well as intergovernmental consultation with GRIC. FHWA prepared an EIS and issued a ROD approving the project.

Case Summary

The plaintiffs sued FHWA and Arizona DOT, challenging the project under NEPA and Section 4(f). The NEPA claims challenged multiple parts of the final EIS, including the statement of purpose and need, the range of alternatives, the analysis of impacts, and the discussion of mitigation measures. Based on Section 4(f), the plaintiffs claimed that the agencies did not consider all prudent and feasible avoidance alternatives, and failed to conduct all possible planning to minimize harm from the project. In 2016, the district court ruled for the agencies on all claims. In this appeal, the U.S. Court of Appeals for the Ninth Circuit upheld the district court’s order in all respects.

Key Holdings

NEPA

Purpose and Need.  The plaintiffs alleged that the purpose and need discussion in the EIS was unreasonably narrow in that it created a preordained outcome. In particular, the plaintiffs argued that it was improper for the agencies to base its purpose and need statement on goals established in the metropolitan long-range transportation plan. The court noted that the purpose and need statement “examined projected population growth, housing demand, employment growth, transportation mileage, and transportation capacity deficiencies. These metrics were used to establish the ‘underlying purpose and need’ and to determine whether a previously proposed freeway was still necessary.” The court ruled that the purpose and need statement complied with NEPA, explaining that agencies have “considerable discretion” when defining the purpose and need of a project.

Range of Alternatives.  The plaintiffs argued that the agencies did not consider a reasonable range of alternatives, claiming that the agencies failed to study any of the alternatives that the plaintiffs had submitted for consideration during the NEPA process. The court noted that the agencies had used a “multivariable” screening process to evaluate proposed alternatives, including non-freeway alternatives, and had concluded that non-freeway alternatives would not address an adequate percentage of the transportation capacity need. The court also noted that agencies are “not required to consider an infinite range of alternatives.” The court concluded that the agencies sufficiently explained their reasons for eliminating alternatives from detailed study in the EIS. Thus, the court ruled that the range of alternatives complied with NEPA.

Population Forecasts.  The plaintiffs claimed that the analysis of the no-build alternative in the EIS was flawed because the agencies assumed the same employment and population growth would occur with or without the project. This assumption was based on a transportation planning report previously issued by the Maricopa County Association of Governments, which had assumed some future expansion of highways. The plaintiffs argued that the agencies should have used a different model of projected growth for evaluating the impacts of the no-build alternative. The court noted that “agencies may rely on state assessments in drafting an EIS to generate growth predictions.” The court concluded that the agencies sufficiently explained the basis for their decision for using the growth projections, and held that the analysis of the no-action alternative complied with NEPA.

Risk of Hazardous Material Spills.  The plaintiffs challenged the agencies’ decision not to analyze the potential impact of hazardous material spills. The agencies had determined that the probability of a hazardous material spill was low because of existing regulations. The EIS also discussed the extent to which hazardous material spills could be avoided or mitigated, and noted that the Arizona Department of Transportation would coordinate with emergency service responders and was evaluating hazardous material restrictions. The court explained that “an EIS need not discuss the potential environmental consequences of adverse effects that are remote or highly speculative,” and concluded that the agencies’ evaluation of hazardous materials spills was sufficient.

Children’s Health Impacts.  The plaintiffs claimed that the EIS did not adequately consider impacts on children’s health. The agencies did not separately analyze the project’s impacts on children’s health. However, as part of the air quality conformity analysis, the agencies determined that the project would not cause any violations or delay in NAAQS attainment. The agencies concluded that the project would not disproportionately affect children’s health because it complied with the NAAQS, which are set at levels to protect sensitive populations, including children. The court upheld the agencies’ conclusion, noting that agencies are entitled to deference when undertaking technical scientific analysis.

Air Quality – Mobile Source Air Toxic Emissions.  The plaintiffs argued that the agencies did not adequately consider the impacts of mobile source air toxic (MSAT) emissions. The EIS estimated MSAT emissions in the broader study area but did not analyze near-roadway emissions because it was not possible with the model that the agencies used. The court noted that the agencies used EPA’s latest model to project MSAT emissions in the study area and provided sufficient reasoning for determining that an analysis of near-roadway emissions was not necessary. Therefore, the court ruled that the MSAT emissions analysis complied with NEPA.

Mitigation Measures.  The plaintiffs argued that the agencies did not conduct detailed enough project design to allow them to adequately develop and analyze mitigation measures. The court ruled that the agencies adequately considered mitigation measures in the EIS. The court found that the EIS contained sufficiently detailed discussion of mitigation measures to address environmental impacts from the project. The court explained:

“NEPA does not require a fully developed plan that will mitigate all environmental harm before an agency can act; NEPA requires only that mitigation be discussed in sufficient detail to ensure that environmental consequences have been fully evaluated. The record thus does not bear out the contention that the fifteen percent design level hindered Appellees from sufficiently detailing and discussing mitigation measures.”

 

Section 4(f)

Prudent and Feasible Avoidance Alternatives.  The plaintiffs claimed that the agencies failed to consider prudent and feasible alternatives that would avoid using the park preserve. The EIS discussed avoidance alternatives and determined that none of them were prudent or feasible. In particular, the EIS determined that (1) shifting the alignment to the north of the park preserve would adversely impact other highways, would cause extensive residential and business displacement, and would not meet the purpose and need; (2) an alternative south of the park preserve that would cut through the GRIC reservation was neither feasible nor prudent because GRIC would not allow development on its land; (3) shifting the alignment to the south of the GRIC reservation would not meet the purpose and need because the freeway would be too far from downtown Phoenix; and (4) the no-action alternative would not meet the purpose and need. The court explained that “an alternative is not prudent if, among other things it compromises the project’s ability to address the purpose and need to an unreasonable degree.” The court ruled that the agencies had permissibly determined that there was no feasible and prudent alternative to avoid the park preserve.

Minimization of Harm.  The plaintiffs also argued that the agencies did not adequately plan to minimize harm to the park preserve, GRIC cultural resources, and GRIC groundwater wells. The court noted that the EIS described measures to minimize harm to the park preserve and GRIC cultural resources.  The court also noted that the agencies entered into a programmatic agreement under Section 106 of the NHPA that contained legally binding commitments regarding the treatment and management of cultural resources. In addition, the court noted that the agencies included in the design and construction contract a binding agreement that requires the contractor to avoid and preserve GRIC well sites and associated infrastructure. The court concluded that the agencies conducted all possible planning to minimize harm, in compliance with Section 4(f).

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