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Case Law Updates on the Environment (CLUE)

Case Law Update Details

Case Title

Wise v. USDOT

Case No.

No. 4:18-cv-466

Court

U.S. District Court - Arkansas

State

Arkansas

Date

7/27/2018

Project

I-630

Project Type

Highway

Project Description

The project would widen a 2.5-mile section of Interstate 630 in Little Rock, Arkansas, from six to eight lanes. In 2009, the Arkansas Department of Transportation (ArDOT) and FHWA entered into a programmatic agreement that allowed ArDOT to determine whether highway projects qualified for categorical exclusions (the “PCE Agreement”). Pursuant to the PCE Agreement, in 2016, ArDOT issued a determination, which FHWA approved, that the I-630 project qualified for a categorical exclusion for projects that take place entirely within the existing operational right-of-way (23 C.F.R. § 771.117(c)(22)).

Case Summary

The plaintiffs filed this lawsuit against ArDOT and FHWA in 2018 to challenge the agencies’ decision to rely on a categorical exclusion instead of preparing an EA or EIS for the project. The plaintiffs alleged that the PCE Agreement was not valid at the time the agencies approved the categorical exclusion for the project in 2016 because FHWA regulations issued in 2014 (after the agencies executed the PCE Agreement in 2009) restricted PCE agreements to a maximum term of five years. The plaintiffs also asserted that the project did not meet the criteria for a categorical exclusion for highway projects entirely within the existing operational right-of-way. Finally, the plaintiffs alleged that the agencies should have performed a mobile source air toxics (MSAT) analysis for the project.

In this ruling, the court denied the plaintiffs’ request for a temporary restraining order and preliminary injunction to stop construction of the project during the lawsuit. The court determined that none of the four factors for injunctive relief weighed in favor of ordering construction to stop: (1) the plaintiffs were not likely to succeed in their lawsuit, (2) the plaintiffs were not likely to suffer irreparable harm if the court allowed construction to continue until the lawsuit was resolved, (3) the balance of harms did not support halting construction, and (4) halting construction would not be in the public interest. The court’s ruling allowed ArDOT to continue with construction during the lawsuit. As of December 2018, the court’s ruling was on appeal to the U.S. Court of Appeals for the Eighth Circuit.

Key Holdings

NEPA

Categorical Exclusion - Validity of CE Programmatic Agreement.  The plaintiffs claimed that the 2009 PCE Agreement was no longer valid when ArDOT and FHWA approved the categorical exclusion for the I-630 project in 2016. Although the PCE Agreement did not have an expiration date, a subsequent regulation (23 C.F.R. § 771.117(g)(2)) adopted in 2014 requires that PCE agreements have a term of no more than five years; the plaintiffs claimed that this regulation caused the 2009 PCE Agreement to expire in 2014, five years after its effective date. In response to this argument, the agencies cited a page on FHWA’s website that stated pre-existing PCE agreements would remain valid until revised to conform with the new requirements in 23 C.F.R. § 771.117(g), with a 2019 deadline to revise pre-existing agreements. The court agreed with the agencies that the PCE Agreement remained valid in 2016 because the PCE Agreement did not contain an expiration date and FHWA’s five-year grace period to revise pre-existing agreements had not yet elapsed.

Applicability of Categorical Exclusion.  The agencies invoked a categorical exclusion for highway projects “that would take place entirely within the existing operational right-of-way” (23 C.F.R. § 771.117(c)(22)). The court determined, based largely on testimony by an ArDOT program administrator, that all project construction would be within the existing operational right-of-way of Interstate 630. Therefore, the court ruled that the plaintiffs were not likely to succeed on their claim that the project did not qualify for the categorical exclusion.

MSAT Analysis.  The plaintiffs claimed that the agencies should have performed a MSAT analysis. The agencies relied on an interim guidance update issued by FHWA in 2012, which stated that “Tier 1 projects” (which include projects qualified as a categorical exclusion under 23 C.F.R. § 771.117(c)) have no potential for meaningful MSAT effects and do not require MSAT analysis. The court agreed with the agencies that an MSAT analysis was not required.

Litigation Procedure

Preliminary Injunction - Irreparable HarmThe court determined that the plaintiffs would not suffer irreparable harm if construction continued. The court noted that its analysis was focused on the harm that would occur by allowing construction to continue until the lawsuit was resolved, not the harm that would occur following completion of the project. The court determined that there would be little traffic disruption during construction, because traffic would not be rerouted and lane closures would occur only on weekends and during non-peak evening hours. The court also noted that noise barriers would be installed in some areas to help mitigate noise impacts.

Preliminary Injunction - Balance of Harms.  The court determined that the balance of harms did not support halting construction because ArDOT would incur significant monetary costs, including mobilization and demobilization costs and paying for idle equipment and personnel.

Preliminary Injunction - Public Interest. The court ruled that the public interest did not support halting construction because completing the project would benefit the public by reducing congestion and enhancing public safety.

File Attachments

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AASHTO (American Association of State Highway and Transportation Officials)
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