Case Law Updates on the Environment (CLUE)
Case Law Update Details
Hoosier Environmental Council v. USDOT
2007 U.S. Dist. LEXIS 908
U.S. District Court - Indiana
I-69 - Evansville to Indianapolis
The project involved the construction of an Interstate highway connecting Evansville to Indianapolis, Indiana – a distance of approximately 140 miles. The project had been planned by INDOT for more than 50 years, but had never been implemented for financial and other reasons. In the 1990s, it was designated as part of a national “high priority corridor” connecting Canada to Mexico. The legislation designated the route at I-69. Based on that legislation, FHWA and INDOT initiated a NEPA study in 2000 for completion of I-69 between Evansville and Indianapolis. FHWA and INDOT prepared a tiered NEPA study because of the size of the study area and the length and geographic range of the alternative being considered. The Tier 1 EIS was used to select a corridor for the project. Six separate Tier 2 studies were then initiated to select the specific alignment for individual sections of the project. This case involved only a challenge to the Tier 1 EIS.
The plaintiffs challenged FHWA’s decisions under NEPA and Section 4(f), and also challenged the USFWS’s Biological Opinion under Section 7 of the ESA. The principal claims against FHWA included: (1) tiering was misused; (2) the purpose and need was too narrow; (3) the EIS did not fairly analyze an alternative involving improvements to existing roads; (4) certain environmental impacts were not adequately studied, including impacts on air quality and karst terrain; (5) a supplemental EIS should have been prepared for various reasons; (6) Section 404 permitting should have occurred during Tier 1. The plaintiffs also challenged the USFWS’s Biological Opinion, arguing that USFWS did not adequately support its finding of “no jeopardy” for the Indiana bat. The Court rejected all of the plaintiffs’ claims. The plaintiffs did not appeal the District Court's decision.
Use of Tiering. The court discussed the issue of tiering at length. The court noted that if a second-tier level of analysis was required for every alternative for every project, “public works could too easily grind to a halt and become hopelessly mired in their own bureaucracy.” The court also noted that “the art of effective tiering is to find the appropriate depth of detail at each level.” The court acknowledged that tiering “does not come without significant risk,” including the risk that issues considered acceptable during Tier 1 might “emerge as unacceptable threats” during Tier 2 studies. Despite these risks, the court found that the level of detail in the Tier 1 EIS for I-69 was appropriate.
Purpose and Need. The court rejected the plaintiffs’ challenges to the purpose and need. The purpose and need included three “core goals,” which included improving the transportation link from Evansville to Indianapolis; improving “personal accessibility” in Southwest Indiana; and completing the Evansville-to-Indianapolis section of I-69. The plaintiffs contended that these purposes were not factually supported and reflected a pre-determined outcome. The court concluded that “INDOT and FHWA did not act arbitrarily and capriciously in adopting the chosen core goals for the I-69 project.”
Supplemental EIS. The court agreed with FHWA that a supplemental EIS was not required. Plaintiffs had cited three reasons for requiring an SEIS: (1) new State legislation that potentially precluded construction of the project in the selected corridor in one location; (2) changes in federal air quality designations, including designation of PM2.5 nonattainment areas; and (3) increases in cost estimates following completion of the Tier 1 study. The court concluded that the legislation was inapplicable and thus did not require an SEIS; it also concluded that the air quality and cost issues could be addressed in Tier 2.
Impacts Analysis - Level of Detail. The court found that the Tier 1 EIS adequately assessed impacts on karst terrain, which involves features such as caves and sinkholes. FHWA based its karst analysis on the best data available on a consistent basis for the entire study area. Plaintiffs argued that more detailed karst data – which was only available for the selected corridor – should have been used. EPA commented that it considered FHWA’s data adequate for a Tier 1 analysis. The court upheld FHWA’s decision, holding that “it is reasonable to evaluate information of the same level of detail for all twelve alternatives studied.”
Section 7 of ESA
Section 7 Consultation - Adequacy of Biological Opinion. The court upheld the USFWS’s determination, which was made following formal consultation under the ESA, that the project would not jeopardize the continued existence of the Indiana bat. The USFWS had issued a Biological Opinion during the Tier 1 study; after that study was completed, USFWS re-initiated consultation to address new data about the Indiana bat and then issued a Revised Biological Opinion, re-affirming its no-jeopardy finding. The finding was based, in part, on mitigation measures that were incorporated into the project, including conservation and creation of forest land. The Plaintiffs argued that the USFWS had not gathered enough information about the number and location of Indiana bats, and had not done enough to ensure that the planned mitigation would actually be implemented. Noting that it was required to give “substantial deference” to USFWS’s expertise, the court upheld USFWS’s decision.
Section 7 Consultation & Tiering. The court concluded that USFWS’s tiered approach to Section 7 consultation did not result in unlawful segmentation of the project. The USFWS’s approach involved issuing a single Biological Opinion during Tier 1 for the entire 140-mile-long corridor, and then conducting additional Section 7 consultation in each Tier 2 study to determine consistency with the findings of the Tier 1 decision – with the possibility of re-initiating consultation during Tier 2 based on more detailed information developed in those studies. The court noted the risk that work on the project might have to be halted if Section 7 consultation is re-initiated in Tier 2. But with this caveat, the court concluded that USFWS’s tiered approach to Section 7 consultation was acceptable.
Section 4(f) - Joint Planning Exception. The court held that construction of I-69 in a reserved corridor (on privately owned land) through the Patoka National Wildlife did not constitute a “use” of Section 4(f) property because the roadway and refuge were jointly planned. The court noted that the project decisions “reflect a long-term understanding by state and federal agencies that the creation of the wildlife refuge would not prevent any new-terrain route for I-69.” Therefore, the court upheld FHWA’s decision that the project would not “use” the refuge.
Section 4(f) & Tiering. The court upheld FHWA's determination, in the Tier 1 study, that the I-69 project would not use two State forests that were protected by Section 4(f) as recreational areas. The court recognized that some uncertainty remained about the potential for a use of Section 4(f) property, because final alignment decisions would not be made until Tier 2. But the court concluded that there was no Section 4(f) violation because the project currently did not use the Section 4(f) properties and “seems unlikely to in the future.”
Section 404 of Clean Water Act
Section 404 Permitting & Tiering. The court agreed with FHWA and INDOT that it was not necessary for Section 404 permitting under the Clean Water Act to occur during the Tier 1 study. The plaintiffs had argued that Section 404 permitting must occur as part of Tier 1 so that the Corps of Engineers could make a “least environmentally damaging practicable alternative” (LEDPA) determination concurrently with FHWA’s decision in Tier 1. Based on the record, the court concluded that the Corps fully retained its authority to accept or reject FHWA’s determination, including the right to deny a Section 404 permit altogether. Therefore, the Court concluded that the tiered process did not violate Section 404, even though “the use of tiering in this project means that Clean Water Act protections will not be triggered until the agencies reach the second tier of analysis.”