Case Law Updates on the Environment (CLUE)
Case Law Update Details
Paradise Ridge Defense Coalition v. Hartman
U.S. Court of Appeals - 9th Circuit
The project involved improvements to a segment of US-95 south of Moscow, Idaho. The existing two-lane undivided highway would be replaced by a four-lane highway with a combination of a 34-foot median and a center turn lane. The Idaho Transportation Department (ITD) and FHWA first began studying improvements to US-95 in 1999, and completed an EA and FONSI in 2003. The Paradise Ridge Defense Coalition sued to challenge the EA and FONSI, and a court ruled that an EIS was required. The agencies then prepared an EIS for the project, and FHWA issued a ROD in March 2016. During the NEPA scoping process, the agencies identified ten build alternatives in three possible corridors. The agencies screened the alternatives based on 23 criteria, and selected one alternative in each of the three corridors for detailed study in the EIS. The EIS identified Alternative E-2 as the preferred alternative.
The plaintiff alleged that the agencies violated NEPA. In particular, the plaintiff claimed that the EIS and ROD were deficient in the range of alternatives studied, impacts on wetlands, evaluation of vehicle crash data, analysis of safety risks from wildlife collisions, and reliance on not-yet-final mitigation plans. The plaintiff also claimed that FHWA followed an improper process for approving the EIS and that the agencies had a predetermined outcome. A federal district court ruled in favor of the agencies, and the plaintiff appealed. In this decision, the U.S. Court of Appeals for the Ninth Circuit affirmed the district court’s judgment in favor of the agencies.
Vehicle Crash Projections. The agencies predicted vehicle crashes for each alternative using the AASHTO Highway Safety Manual. The plaintiff argued that the agencies’ vehicle crash projections were unreliable and that the agencies inappropriately compared the alternatives based on crash rates predicted by the model, without giving a “confidence interval” (i.e., margin of error) for the data. The court upheld the agencies’ analysis:
“[T]he FHWA’s reliance on the Highway Safety Manual for predicting the relative safety of each alternative route was reasonable given that it is the industry standard for highway safety, and the Coalition does not argue that the FHWA should have used an alternative methodology. The FHWA disclosed that the methodology did not yield confidence intervals for each of the proposed alternatives, and the FHWA also exercised engineering judgment in its evaluation of the proposed alternatives.
Wildlife Collisions. The plaintiff argued that the EIS did not adequately address the safety risks from wildlife collisions, and that the agencies should have factored the risk of wildlife collisions into their vehicle crash projections. The court held that the agencies sufficiently analyzed this issue: “[T]he FHWA provided a ‘reasonably thorough discussion’ of the risk and severity of collisions between vehicles and wildlife, as well as mitigation measures to decrease the risk of those collisions.”
Predetermination. The plaintiff alleged that the outcome of the NEPA process was predetermined because ITD had a clear preference for Alternative E-2. The court ruled that FHWA did not impermissibly predetermine the outcome of the NEPA analysis because it did not make an irreversible and irretrievable commitment of resources before completing its analysis.
Range of Alternatives. The plaintiff claimed that the agencies had arbitrarily selected the three alternatives that were studied in the EIS. During the NEPA scoping process, the agencies had selected one alternative for three possible corridors for further analysis in the EIS. The plaintiff argued that the agencies should have selected the highest-ranked alternatives overall, rather than the highest-ranked alternative for each corridor. The court upheld the selection of alternatives. “[T]he routes within each geographic corridor had substantially similar consequences, and NEPA ‘does not require a separate analysis of alternatives which are not significantly distinguishable from alternatives actually considered, or which have substantially similar consequences.’”
Invasive Weed Mitigation. The plaintiff argued that the EIS and ROD improperly relied on invasive weed mitigation plans that had not been finalized. The court concluded that the documents “discussed the mitigation measures for invasive weeds in sufficient detail to ensure that environmental consequences had been fairly evaluated.”
Prior Concurrence. The plaintiff argued that FHWA violated its regulation requiring an EIS to be submitted to FHWA headquarters for prior concurrence in certain circumstances, including when another federal agency indicates opposition to a project on environmental grounds (23 C.F.R. § 771.125). For this project, the EPA had rated the draft EIS as EO-2 (Environmental Objections, Insufficient Information) because it had “serious concerns” regarding Alternative E-2, but the FHWA division office did not submit the EIS to FHWA headquarters for prior concurrence. Noting that an agency’s interpretation of its own regulations is entitled to substantial deference, the court held that FHWA did not violate its regulation when it determined that prior concurrence was not necessary for this project.
Wetland Impacts. The plaintiff challenged the selection of Alternative E-2 because it would have the greatest impact on wetlands. (Alternative E-2 would impact 3.61 acres of wetlands, while the other two build alternatives would impact 1.85 acres and 0.99 acres.) The plaintiff relied on Executive Order 11,990, which directs agencies to avoid new construction in wetlands unless there is “no practicable alternative” and the action includes all practicable measures to minimize harm to wetlands. (The plaintiff did not allege a violation of Section 404 of the Clean Water Act.) The court determined that FHWA complied with Executive Order 11,990:
“The FHWA complied with Executive Order 11,990 by (among other things) considering the wetlands impact alongside other pertinent factors, such as highway safety, and outlining mitigation plans to minimize the impact to wetlands. Executive Order 11,990 contemplates a balancing of factors, and the FHWA’s selection of alternative E-2 is supported by the record and is not arbitrary, capricious, or an abuse of discretion.”