Case Law Updates on the Environment (CLUE)
Case Law Update Details
Zeppelin v. FHWA
305 F. Supp. 3d 1189
U.S. District Court - Colorado
Central 70 Project
The project involves replacing a 1.2-mile viaduct that carries a portion I-70 through Denver with a below-grade roadway. The project was carried out by Colorado DOT (CDOT) with funding from FHWA. The selected alternative, known as the Partial Covered Lowered (PCL) Alternative, included a system of pipes and detention ponds to address stormwater runoff and prevent flooding of the new below-grade roadway; this system would meet the project’s stormwater management needs without any additional stormwater management measures being constructed by the City of Denver. FHWA and CDOT issued a Final EIS in January 2016, and a ROD selecting the PCL Alternative in January 2017.
During the same time that the PCL Alternative was being studied, the City and County of Denver proposed to construct a set of improvements to manage stormwater runoff and prevent flooding in two neighborhoods near the I-70 project, collectively known as the Platte to Park Hill (P2PH) project. CDOT coordinated with Denver on the P2PH project, provided part of the funding for that project, and designed its PCL Alternative to be compatible with the P2PH project. However, CDOT and FHWA treated the PCL Alternative and the P2PH project as stand-alone actions that each had independent utility and would take place regardless of the other.
The plaintiffs sued FHWA and CDOT, alleging violations of NEPA and Section 4(f). The NEPA claims alleged that the EIS failed to adequately analyze issues arising from contaminated soils that could be disturbed when digging the freeway trench. The NEPA claims also alleged that the EIS failed to analyze the P2PH project as a connected action or similar action, and that the cumulative impacts analysis in the EIS did not adequately consider the P2PH project. The plaintiffs’ Section 4(f) claim alleged that the agencies did not avoid destruction of part of a public golf course that would occur as a result of the P2PH project, which they claimed was a necessary part of the PCL Alternative.
FHWA and CDOT filed motions to dismiss the plaintiffs’ NEPA and Section 4(f) claims that alleged the P2PH project was an integral part of the PCL Alternative. In an order issued November 9, 2017, the court ruled that the plaintiffs did not have standing to bring those claims because they did not demonstrate that Denver would not go forward with the P2PH project even if the court ordered CDOT to stop funding the P2PH project. In this order, the court rejected the plaintiffs’ motion to reconsider that decision, and also rejected the plaintiffs’ motion for a stay.
Standing. In a prior order on November 9, 2017, the court ruled that the plaintiffs did not have standing to bring their NEPA claims that the agencies failed to analyze the P2PH project as a connected action or similar action, or their Section 4(f) claim. The court had concluded that the plaintiffs did not demonstrate that Denver would not go forward with the P2PH project even if the court granted the plaintiffs’ requested relief and ordered CDOT to stop funding the P2PH project. The plaintiffs filed a motion to reconsider that ruling, arguing that the court did not properly consider relaxed standing requirements for cases alleging an agency’s failure to follow required procedures. The court ruled that the plaintiffs did not show that additional procedure (for example, the opportunity to comment to CDOT on the environmental consequences of the P2PH project) would influence or stop the P2PH project. Thus, the court denied the plaintiffs’ motion to reconsider its prior order on standing.
Stay. The court held that the plaintiffs did not demonstrate a likelihood of success on the merits of their claims, and denied their motion to stay agency action.
Impacts of Hazardous Materials. The court held that the plaintiffs were not likely to succeed on their claim that the EIS did not adequately address the health effects of hazardous materials if mitigation measures failed. The court noted that the EIS extensively documented contaminated areas that would be disturbed during construction, as well as procedures for handling and removing contaminated soil. The court explained that the EIS did not need to include general background information on the health effects of exposure to various contaminants that could be encountered. In addition, the court noted, the EIS did not need to evaluate potential health impacts that would occur if mitigation measures for handling contaminated soil were unsuccessful, because there was no reason to believe that the mitigation measures would fail.
Cumulative Impacts. The court ruled that the plaintiffs were not likely to succeed on their claim that the EIS did not consider cumulative impacts. The cumulative impacts chapter in the FEIS listed the P2PH project as a future development project, and discussed the P2PH project’s specific impacts on land use, relocations and displacements, wetlands, water quality, and environmental justice. The ROD supplemented the FEIS with a full analysis of the impacts of the combined stormwater outfall system that was designed to serve both the PCL Alternative and the P2PH project, including discussions of the stormwater outfall system’s impacts on parks and recreational resources, hydrology, wetlands, and water quality. The plaintiffs asserted that the cumulative impacts analysis should have discussed health impacts from fugitive dust during construction, when excavation could be occurring on both the PCL Alternative and the P2PH project. The court held that there was no reason to believe that dust control measures would fail; thus, the potential for harmful release of contaminated dust was speculative. The court concluded that the cumulative impacts analysis in the EIS was likely adequate.