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Case Law Updates on the Environment (CLUE)

Case Law Update Details

Case Title

Audubon Naturalist Society of the Central U.S. v. USDOT

Case No.

524 F. Supp. 2d 642


U.S. District Court - Maryland






Intercounty Connector

Project Type


Project Description

The Intercounty Connector (ICC) is a proposed toll highway, approximately 18 miles long, in Maryland. The project would provide an east-west link between two Interstates (I-270 and I-370), approximately 10 miles north of the existing Beltway (I-495) around Washington, D.C. The selected alternative crosses several stream valley parks, which generally run in a north-south direction through the study area; the project generally follows a reserved corridor as it passes through those parks. FHWA issued a Record of Decision (ROD) approving the project in May 2006, including a Section 4(f) approval. The Corps of Engineers issued a Section 404 permit for the project in June 2006.

Case Summary

In December 2006, two lawsuits were filed in the challenging the project: Audubon Naturalist Society v. USDOT, Civ. Action No. AW-06-3386, and Environmental Defense v. USDOT, Civ. Action No. AW-07-1480. The lawsuits challenged FHWA’s approval of the project as well as the Corps’ Section 404 permit. These cases were decided in a single decision issued by the U.S. District Court for the District of Maryland in November 2007. The District Court decision upheld FHWA’s and the Corps’ decisions.

Key Holdings


Purpose and Need.

The District Court upheld the purpose and need for the project, which called for completion of a “state-of-the-art, multi-modal highway” connecting the I-270 and I-95 corridors.  The court noted that “courts have consistently upheld purpose and need statements that called for the specific purpose of constructing a road, so long as the agency also considered broader transportation objectives” and found that, in this case, “the mere mention of the word ‘highway’ in the purpose statement did not prevent Defendants from considering broader transportation objectives, nor did it automatically exclude them from considering non-highway alternatives.”

Screening of Alternatives.

The District Court upheld the decision to eliminate non-highway alternatives, including alternatives advocated by the plaintiffs, which involved various combinations of transit improvements, upgrades to existing roadways, tolling, and land use changes.  The court found that FHWA had properly concluded that those alternatives would not meet the purpose and need for the project.  The upheld FHWA’s decision not to use certain measures of effectiveness (MOEs) advocated by the plaintiffs for use in the alternatives screening process, including FHWA’s decision not to screen alternatives based on their ability to reduce vehicle miles traveled (VMT).

Traffic Forecasts. The District Court upheld the decision to rely on a “sensitivity analysis,” rather than conducting an entirely new round of traffic forecasts in response to changes in the MPO’s land use assumptions for the regional traffic model.  The traffic forecasts in the DEIS were based on a land use forecast (known as Round 6.3) that did not assume the presence of the ICC.  An updated forecast (known as Round 6.4A) was adopted shortly before the DEIS was issued, and it was updated to reflect the presence of the ICC.  FHWA included a sensitivity analysis in the FEIS showing the additional traffic that would result from the land use changes that resulted from the ICC.  The court held that this sensitivity analysis was sufficient to satisfy NEPA

Mobile Source Air Toxics. The District Court upheld the analysis of mobile source air toxics (MSATs).  The FEIS included a quantitative emissions analysis, which estimated the total MSAT emissions in the ICC study area, for the No Build and Build alternatives, in both the present year and the design year (2030).  The FEIS also included a discussion of the potential health effects of MSATs, consistent with FHWA’s interim guidance on MSAT analysis in NEPA documents.  The plaintiffs argued that the FEIS should have included a more specific analysis of the MSAT emissions along the ICC and the potential health effects of those emissions.  The court concluded that FHWA’s methodology was reasonable.

Climate Change. The District Court upheld FHWA’s determination that it was not necessary to conduct an analysis of greenhouse gas emissions as part of the NEPA process for an individual transportation project.  The court concluded that “Defendants did not act arbitrarily or capriciously in concluding that no particular mitigation is needed here for the supposed impacts of a single stretch of highway on the global problem of climate change.” \

Supplemental EIS. After the lawsuit was pending, the Plaintiffs filed a "petition" asking FHWA to prepare a Supplemental EIS.  FHWA then issued a decision denying that request.  The Plaintiffs then amended their complaint to challenge the decision not to prepare a Supplemental EIS.  The District Court held that a Supplemental EIS was not required.  This decision addressed three main issues:

  • Status of Federal Action.  The court agreed with FHWA that “the critical decision to build the ICC has already been made” because FHWA had not only issued the Record of Decision but also had granted approvals for three construction contracts that together comprised 90% of the project length (and the State could proceed with the last two contracts without federal approval if it used State funds).  The court concluded that “since there remains no ‘major Federal action’  for the ICC requiring supplementation, FHWA’s obligation under NEPA was satisfied.  In effect, the Court concluded that the action had progressed to the point where FHWA no longer had a duty to re-open the NEPA process, regardless of whether significant new information emerged.
  • Revised PM2.5 Standard.  The court agreed with FHWA that a revised air quality standard for PM2.5 – adopted by EPA in October 2006, several months after FHWA issued the ICC ROD – did not warrant preparation of a Supplemental EIS.  The court based this decision on a Reevaluation prepared by FHWA, which included additional analysis of existing PM2.5 monitors and determined that the project was not likely to result in violations of the revised PM2.5 standard. 
  • New Health-Effects Studies.  The court agreed with FHWA that new studies of the health effects of roadway emissions – including one study published in early 2007, after the ROD for the ICC – did not create a “seriously different picture” of the impacts of the ICC and therefore did not require an SEIS. 
Section 4(f)

Section 4(f) Avoidance Alternatives. The District Court upheld FHWA’s determination that there are no prudent and feasible alternatives that entirely avoid Section 4(f) lands.  This finding was based primarily on the fact that the project involves an east-west transportation link in a study area that includes several lengthy north-south parks.  The court based this holding in part on its finding that non-highway alternatives cannot meet purpose and need, and also on a finding that those alternatives would not be complete avoidance alternatives – e.g., improving existing roads would take land from 22 Section 4(f) properties.

Constructive Use. The District Court upheld FHWA’s determination that the ICC would not result in a constructive use of parkland, because the ICC was constructed in a corridor that had been reserved when the parks were created.  The court agreed with the Ninth Circuit’s holding that “a constructive use does not occur when a park and a transportation facility are jointly planned.”  The court also upheld FHWA’s findings of no constructive use for parks where the ICC was constructed outside the reserved corridor.

Least-Harm Analysis. The District Court upheld FHWA’s determination that the three build alternatives (known as Corridors 1, 2AX, and 2DB) would all cause “substantially equal harm” to Section 4(f) resources.  The court noted that Corridor 1 would use the greatest acreage of parkland – 88 acres – as compared to 32 acres for Corridor 2AX and 45 acres for Corridor 2DB.  However, the court agreed with FHWA’s conclusion that the net harm to Section 4(f) resources would be substantially equal because (1) parkland impacts of Corridor 1 are more consistent with the park agency’s original vision, which included a road bisecting the parks in the general location of Corridor 1; (2) much of the parkland acreage used by Corridor 1 resulted from decisions to shift outside the reserved corridor to minimize impacts on streams; (3) impacts on parkland for all alternatives would be “overwhelmingly mitigated’; and (4) Corridors 2AX and 2DB would have a greater number of adverse effects on historic sites.

Minimization of Harm. The District Court upheld FHWA’s determination that the project included “all possible planning to minimize harm” as required by Section 4(f).  The court noted in this regard that Section 4(f) does not specifically call for “mitigation” but found that the “mitigation package for the project does adequately minimize the harm resulting from the Selected Alternative.”   The parkland mitigation package included 776 acres of parkland (including one 458-acre parcel outside the study area) for the 88 acres of parkland used by the project.

Section 404 of Clean Water Act

Section 404 Permit. The District Court upheld the Section 404 permit issued by the U.S. Army Corps of Engineers for the project.  Key factors in the court's decision included:

  • Independent Review.  The court held that the Corps carried out its duty, under Section 404 of the Clean Water Act, to conduct an independent review of the project, including the purpose and need, the range of alternatives, and the impacts.  The court noted that several changes had been made to the Purpose and Need statement specifically in response to comments made by the Corps, which demonstrates the Corps’ involvement and independence. 
  • LEDPA Determination.  The court also reviewed the Corps’ least environmentally damaging practicable alternative (LEDPA) determination, and concluded that the Corps had appropriately decided to select Corridor 1, which impacted a trout stream, rather than Corridor 2, which had potential impacts to a reservoir that served more 500,000 people.
  • Public Interest Determination.  The court upheld the Corps’ determination that the project is in the public interest.    The court concluded that the Corps had considered the relevant factors and that the plaintiffs simply disagreed with the way the Corps had balanced those factors.  One factor in the court’s decision to uphold the public interest determination was the inclusion of 46 special conditions in the permit, which required minimization and mitigation of impacts on aquatic resources, including some mitigation measures that were “unprecedented in Maryland.”
Clean Air Act

Clean Air Act Conformity Determination. The District Court upheld the project-level conformity determination made by FHWA.  The court's decision focused mainly on FHWA's hot-spot analysis for PM2.5 (fine particulate matter).  
  • Methodology for PM2.5 Hot-Spot Analysis.  he court held that FHWA adequately performed a qualitative PM2.5 hot-spot analysis as part of the project-level conformity determination for the ICC.  The court noted that FHWA used a method – known as the “monitor-comparison method” – that was recommended in joint FHWA-EPA guidance (issued in March 2006) for conducting qualitative PM2.5 hot-spot analyses.  The monitor-comparison method involves using PM2.5 concentrations at an existing monitor as the basis for predicting future PM2.5 concentrations in the vicinity of a proposed project.  The court concluded that while the FHWA-EPA guidance was not legally binding, it did reflect EPA’s interpretation of its own regulations and therefore was entitled to deference.  Therefore, the court upheld FHWA’s decision to use the monitor-comparison method.  The court expressed “reservations” about the specific monitor used in the analysis, because of its distance (1.5 miles) from a major roadway, but concluded that the monitor was acceptable. 
  • Comment Period for PM2.5 Conformity Determination.  The court held that FHWA had complied with the conformity regulations by released all relevant technical and policy information regarding its conformity determination at the beginning of the comment period.  The court also agreed that a 33-day comment period on the conformity determination was adequate, because the conformity regulations did not set a minimum number of days and because the conformity determination itself was only 14 pages long.
Title 23

23 USC Section 109(h).

The District Court upheld FHWA’s long-standing practice of addressing that Section 109(h) as part of the process established in FHWA’s environmental review regulations in 23 C.F.R Part 771.  The court agreed with FHWA that separate findings of compliance with Section 109(h) are not required.  In particular, the court found that FHWA can satisfy Section 109(h) without making a specific finding that a project is “in the best overall public interest.”  The court concluded that FHWA had adequately addressed the relevant factors regarding the public interest as part of the Record of Decision.

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