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Case Law Updates on the Environment (CLUE)

Case Law Update Details

Case Title

City of Dardanelle v. USDOT

Case No.

2018 WL 2771513

Court

U.S. District Court - Arkansas

State

Arkansas

Date

6/8/2018

Project

River Valley Intermodal Facilities Project

Project Type

Highway

Project Description

The River Valley Intermodal Facilities Project, in Russellville, Arkansas, would consist of a new slack-water harbor on the Arkansas River along with adjacent land-based intermodal facilities including new railroad and highway connections. The River Valley Intermodal Facilities Authority (RVIFA), which was established by the City of Russellville and Pope County, was the project sponsor and developer. The Army Corps of Engineers prepared an EA and FONSI for the new harbor in 2000, and FHWA (which was partially funding the project) prepared an EA for the land-based intermodal facilities in 2002. In 2004, the court ruled that the Corps had improperly segmented the project by only studying the harbor, and the court ordered the agencies to prepare an EIS for the entire facility. FHWA initially identified nine possible sites for collocated intermodal facilities in the Arkansas River Valley, and then selected three finalists for analysis in the EIS (based on several screening criteria including access to highways and railroads, proximity to a navigable river channel, site layout, site size, and topography). The EIS was prepared by a contractor hired by the RVIFA. The Final EIS was published in 2013, and FHWA and the Corps issued RODs in 2016.

Case Summary

The plaintiffs alleged that FHWA and the Corps violated NEPA. The court agreed with the plaintiffs that FHWA had improperly allowed the RVIFA to hire a consultant to prepare the EIS, but the court also determined that the objectivity and integrity of the NEPA process was not compromised. The court also held that the alternatives analysis was not biased to select a project site located in the City of Russellville. Finally, the court upheld the EIS’s discussion of direct, indirect, and cumulative impacts.

Key Holdings

NEPA

Preparation of EIS by Contractor.  The court agreed with the plaintiffs that FHWA improperly allowed the RVIFA to hire an outside contractor to prepare the EIS, but also held that this was a harmless error. The court explained that CEQ and FHWA regulations allow the lead agency to hire a contractor to prepare an EIS and allow the project applicant to prepare an EIS. The court ruled, however, that NEPA does not permit a project applicant (in this case, the RVIFA) to hire a contractor to prepare an EIS. Despite finding that RVIFA’s hiring of the contractor to prepare the EIS violated NEPA, the court also ruled that “the error didn’t compromise the objectivity and integrity of the NEPA process.” The court noted that the contractor’s disclosure statement indicated that it had no financial or other interest in the outcome of the project. In addition, the court determined that FHWA had adequately supervised the contractor and exercised independent oversight of the EIS.

Alternatives Analysis. The plaintiffs claimed that the agencies were biased in their alternatives analysis because the City of Russellville purchased land for the project at two of the finalist sites while the EIS was being prepared. The court disagreed. First, the court rejected the plaintiffs’ argument that three of the alternatives in Russellville (two of which were finalists) were too similar. The court agreed that they were similar (though not identical), but explained that there were legitimate reasons for FHWA to treat them as separate alternatives: they had different boundaries and terrain and would cause different environmental and social impacts. The court explained that the process was not biased to choose a site Russellville because one of the three finalists was located in a different city. Next, the court held that it was not improper for RVIFA to have a preference for an alternative: “it would be imprudent for the main booster not to have at least a hip opinion about the best site for this Project.” Finally, the court held that FHWA adequately explained its decision for selecting the chosen alternative, and noted that the plaintiffs did not identify a better alternative that FHWA had rejected without good reason.

Adequacy of EIS.  The plaintiffs argued that the EIS did not adequately consider various impacts, made flawed assumptions for analyzing some impacts, and did not use a consistent geographic area for evaluating cumulative effects on different resources. The court explained that FHWA’s analytic frameworks were entitled to deference. The court ruled that the EIS was adequate because it gave a “full and fair discussion” to nearly all of the impacts that the plaintiffs claimed the EIS had overlooked.

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