Case Law Updates on the Environment (CLUE)
Case Law Update Details
Fath v. Texas DOT
U.S. District Court - Texas
MoPac South and SH 45 West
This case involved a series of highway projects carried out by the Texas Department of Transportation (TxDOT) and the Central Texas Regional Mobility Authority to expand Texas State Highway 1 Loop (“MoPac South”) and State Highway 45 West. The projects included: (1) adding overpasses across MoPac South to eliminate two signalized intersections (the “Intersections Project”); (2) constructing a new tolled freeway to extend SH 45 West (the “SH 45SW Project”); and (3) adding toll lanes on MoPac South (the “Express Lanes Project”). The Intersections Project and the Express Lanes project were federally funded and therefore required NEPA review. Acting in the capacity of FHWA under a NEPA assignment program, TxDOT issued a Final EA for the Intersections Project in December 2015. At the time of the court’s opinion, the NEPA review for the Express Lanes Project was still under way. Because the SH 45SW Project involved only state and local funding and did not require federal permits, TxDOT treated the SH 45SW Project as a non-federal project and did not prepare a NEPA document. TxDOT completed a state environmental document for the SH 45SW Project and approved that document in March 2015. The three environmental reviews considered the impacts and alternatives for each project individually, and did not consider the impact and alternatives of the projects collectively.
The plaintiffs alleged that the agencies violated NEPA by improperly segmenting the projects and failing to evaluate the Intersections Project’s cumulative impacts. In 2017, the federal district court ruled in favor of the agencies on all issues, and the plaintiffs appealed to the U.S. Court of Appeals for the Fifth Circuit. In this ruling, the appellate court upheld the district court’s decision. The appellate court held that the district court correctly determined that FHWA’s segmentation criteria applied, that the agencies did not improperly segment environmental analysis of the three projects, and that the cumulative impact analysis for the Intersection Project was adequate.
Segmentation - Applicable Criteria. The court first considered the appropriate segmentation criteria to apply. The court agreed with TxDOT that for highway projects, agencies only have to apply FHWA regulations (23 C.F.R. § 771.111(f)) and are not required to conduct a separate segmentation analysis using criteria in CEQ’s NEPA regulations (40 C.F.R. § 1508.25(a)). The court explained that prior cases from the U.S. Court of Appeals for the Fifth Circuit and other appellate courts had endorsed this approach. “These cases are in line with the principle that courts apply a ‘specifically tailored’ and ‘better fitted’ statute over a ‘more general’ one. Given the precedents above and the lack of highway cases suggesting otherwise, we read § 771.111(f) [the FHWA regulation] as having tailored the general policy of § 1508.25(a) [the CEQ regulation] to the specific question of whether multiple highway projects are ‘in effect, a single course of action.’”
Segmentation - Consistency with Criteria in FHWA Regulations. Applying FHWA regulations, the court considered whether the Intersections Project satisfied criteria for a standalone project—i.e., whether the project (1) connects logical termini and is of sufficient length to address environmental matters on a broad scope, (2) has independent utility or independent significance, and (3) does not restrict consideration of alternatives for other reasonably foreseeable transportation improvements. The plaintiffs argued that TxDOT misapplied the first two factors, but the court disagreed.
(1) Logical Termini. The plaintiffs argued that TxDOT wrongly considered only whether the Intersections Project had logical termini without addressing whether it was of sufficient length. The court ruled that this factor can be condensed into a test about logical termini:
“It makes sense to conclude that a project is ‘of sufficient length’ when it connects logical termini. Here, for example, TxDOT identified the overpass project’s logical termini at the points where MoPac intersects with the two streets it would pass under. It is hard to imagine what other termini would be logical, as this project simply builds overpasses for these intersections, and Plaintiffs offer no alternative termini. Indeed, ‘crossroads’ are precisely the sort of logical termini the FHWA contemplated in issuing § 771.111(f)(1).”
The court also held that for intracity highway projects, the “logical termini” factor has less weight than the “independent utility” factor. “The logical termini factor has had more bearing when the purpose of a highway project was to connect cities and so ‘segments shorter than the full length of the highway had no independent purpose’ and therefore were not of sufficient length.”
(2) Independent Utility. The plaintiffs claimed that TxDOT ignored an aspect of the “independent utility” factor (whether a project has “independent utility or independent significance, i.e., be usable and be a reasonable expenditure even if no additional transportation improvements in the area are made”). The plaintiffs faulted TxDOT for only considering whether the Intersections Project would “be usable” but not whether it was a “reasonable expenditure.” The court ruled that TxDOT was not required to make a separate finding regarding whether the project is a reasonable expenditure. The court explained that other cases focus only on the “standalone usefulness of the proposed highway. . . . That approach reflects the unexceptional view that a highway is likely a reasonable expenditure if, by itself, it ‘serves a significant purpose.’” Here, the court held, the Intersections Project satisfied that test.
Cumulative Impacts. The court explained that the extent of a cumulative impact analysis required depends on the scope and context of the project. Here, the court held, TxDOT was not required to separately analyze cumulative impacts in the EA because it had determined that the project would have no significant direct or indirect impacts. “The proposed overpasses are a two-mile project in an area that is already heavily developed and trafficked. After conducting a number of detailed technical studies, TxDOT concluded that the project would not significantly impact the environment. . . . If the project would have no significant impact by itself, it is unlikely to change the environmental status quo when ‘added’ to other actions.”