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Case Law Updates on the Environment (CLUE)
Case Law Update Details
Case Title
Bar J-B Co., Inc. v. Texas DOT
Court
U.S. District Court - Texas
Project
State Highway 31
Project Type
Highway
Project Description
The State Highway 31 (SH 31) project is a proposed four-lane divided relief route near Corsicana, Texas. The Texas Department of Transportation (TxDOT) prepared an EA and issued a FONSI for the project, pursuant to its authority under an assignment agreement with the FHWA. The full project studied in the EA consisted of two main lanes in each direction as well as two-lane frontage roads in each direction. Because of funding constraints, TxDOT proposed to initially construct only the two-lane eastbound frontage road, which would be used for two-way traffic (referred to as the “Interim Project”). Construction of the remainder of the SH 31 project was contingent on available funding. Because the SH 31 project would involve discharge of dredge or fill material into navigable waters, TxDOT was required to obtain a permit under Section 404 of the Clean Water Act from the Army Corps of Engineers. For the Interim Project, TxDOT proceeded with coverage under Nationwide Permit 14 (NWP 14), a general 404 permit that is applicable to water crossings for linear transportation projects that will result in less than a half-acre of loss of waters.
Case Summary
The plaintiffs, who owned and operated oil wells on the proposed right-of-way for the SH 31 project, alleged that TxDOT violated NEPA, the Endangered Species Act, and the Clean Water Act. The plaintiffs also alleged that the Corps improperly allowed TxDOT to proceed with the Interim Project pursuant to Nationwide Permit (NWP) 14, rather than applying for individual permits for the full SH 31 project. In this order, the court denied the plaintiffs’ motion for a preliminary injunction. The court held that the plaintiffs were not likely to succeed on the merits of their claims, the plaintiffs did not face an immediate threat of irreparable harm, and the balance of equities and public interest did not support an injunction.
Key Holdings
NEPA
Whether to Prepare an EIS. The plaintiffs claimed that TxDOT should have prepared an EIS, rather than an EA, because the project was categorized as a Class I action under FHWA’s NEPA regulations. Class I actions are “actions that significantly affect the environment” and “normally require an EIS.” 23 C.F.R. § 771.115(a). FHWA’s regulations define Class I actions to include highway projects of four or more lanes on a new location. The court explained that while an EIS is “normally” required for Class I actions, the regulations do not mandate an EIS for every Class I project. The plaintiffs also claimed that TxDOT’s Environmental Handbook required a project sponsor to prepare a separate written justification for proceeding with an EA instead of an EIS for a Class I action. The court explained that TxDOT’s Environmental Handbook was not a binding rule or law, so any failure to comply was not arbitrary or capricious.
Hazardous Waste Sites. The plaintiffs asserted that TxDOT should have investigated two sites in the project area (an old auto salvage business and an unpermitted landfill) that the EA identified as potential sources of hazardous waste contamination and recommended for further study. The court explained that TxDOT had, in fact, assessed both sites in detail, and determined that the project would cause no impacts at either site: The auto salvage business was mostly outside the right-of-way, and only nominal hazardous waste was located in the area affected by the project; the landfill was located outside the SH 31 right-of-way entirely. The court ruled that the plaintiffs were not likely to succeed on this claim.
Oil Wells. The plaintiffs argued that an EIS should have been prepared because there were 64 oil wells in the project right-of-way; the EA identified these oil wells as a potential source of contamination during project construction. The plaintiffs also noted that a Phase 1 environmental site assessment recommended further study of possible petroleum product and hazardous material contamination. The court determined that TxDOT had sufficiently evaluated potential contamination from the existing oil wells by analyzing additional studies after the Phase 1 report was prepared. In addition, the court held that there were not likely to be significant environmental impacts from existing contamination because TxDOT committed to handle any unanticipated hazardous materials and contamination in accordance with applicable federal, state, and local laws and TxDOT’s standard specifications.
Cultural Resources. The plaintiffs claimed that TxDOT violated NEPA because the EA stated that archaeological surveys had not been performed for approximately 41 acres of the project area due to landowner refusal. After the EA was published, TxDOT gained right of entry to that area, completed an archaeological survey, and determined that the project would not affect any historic properties; the State Historic Preservation Officer concurred with TxDOT’s conclusions. The court ruled that the plaintiffs were not likely to succeed on their claim that the project would significantly affect cultural or historic resources.
Selection of Preferred Alternative. The plaintiffs asserted that TxDOT’s selection of the preferred alternative was arbitrary and capricious because of its environmental impacts. The alternatives analysis in the EA studied three alternatives for both the western half and eastern half of the project, as well as a no-build alternative. The court concluded that the EA sufficiently discussed each alternative. The court held that the possible disadvantages of the preferred alternative did not show that TxDOT failed to appropriately analyze alternatives. The court ruled that the plaintiffs were not likely to succeed in proving that the alternatives analysis was arbitrary or capricious.
Clean Water Act
Claim Against TxDOT. The plaintiffs argued that TxDOT improperly segmented the SH 31 project by only obtaining coverage under a nationwide Section 404 permit (NWP 14) for the Interim Project rather than applying for individual Section 404 permits for the entire SH 31 project. The court held that the Interim Project had independent utility because the two-lane frontage road would be used for two-way traffic after completion. The court also noted that TxDOT had stated that if it constructed the rest of the SH 31 project, it would obtain any required individual 404 permits at that time. The court concluded that the plaintiffs were not likely to succeed on their claim that TxDOT violated the Clean Water Act by improperly segmenting the project for purposes of obtaining coverage under NWP 14.
Claim Against the Corps. The plaintiffs claimed that the Corps violated its Clean Water Act regulations by allowing the Interim Project to proceed under NWP 14 before TxDOT applied for individual permits for other portions of the SH 31 project. The court held that the plaintiffs were not likely to succeed on this claim because the full SH 31 project was not anticipated to be built in the near future and might never be built.
Endangered Species Act
Consultation Requirements. The plaintiffs claimed that TxDOT violated the ESA by failing to consult with the U.S. Fish and Wildlife Service on the project’s impacts on ten species that were included on the Texas Conservation Action Plan’s list of Species of Greatest Conservation Need. The court explained that consultation was not required because these species were not listed, or proposed for listing, as threatened or endangered under the ESA. Thus, the court held, the plaintiffs were not likely to succeed on the merits of their ESA claim.
Litigation Procedure
Standing. The Corps argued that the plaintiffs did not have standing to bring their claims against the Corps because they would not be harmed by the specific crossings of waters covered by the 404 permit. The court disagreed, concluding that the plaintiffs satisfied the three required elements of standing (i.e., injury caused by the Corps that could be redressed by a favorable court decision). Eight water crossings that required a permit from the Corps were located on the plaintiffs’ property. The plaintiffs alleged that the project would likely cause the release of petroleum products and other toxic chemicals in and around their oil wells, which could expose them to fines and penalties and could affect endangered species and their habitat, groundwater, and surface waters. The court held that these asserted injuries were sufficient to establish standing. Moreover, the court held that these injuries would be fairly traceable to the Corps’ decision to issue the 404 permit because the permit allowed TxDOT to construct the project near the plaintiffs’ oil wells. In addition, the court determined that the plaintiffs’ asserted injuries could be redressed if it granted the plaintiffs’ requested relief and vacated the 404 permit, which would prevent TxDOT from going forward with construction of the project.
Preliminary Injunction. The court denied the plaintiffs’ motion for a preliminary injunction, concluding that they did not satisfy any of the required elements to support an injunction.
Likelihood of Success on the Merits. The court determined that the plaintiffs were unlikely to succeed on the merits of their claims under NEPA and other laws; see above.
Threat of Irreparable Harm. The court determined that the plaintiffs did not face an imminent threat of irreparable harm. The court explained that TxDOT’s commitment to comply with its standard specifications and applicable laws mitigated any risk of harm associated with construction through areas with oil wells. In addition, the court noted that construction had not yet started on the land where the plaintiffs’ oil wells were located.
Balance of Harms and Public Interest. The court ruled that the balance of equities and public interest did not support an injunction. The court noted that the SH 31 project would benefit the public by relieving traffic congestion “for the thousands of people that use the current SH 31 roadway.” The court explained that any benefit from additional environmental review would be outweighed by the “significant costs” associated with stopping construction, as well as the additional cost ($14 million) to prepare an EIS: “This potential financial harm will ultimately be borne by the tax payers of Texas.”
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