Case Law Updates on the Environment (CLUE)
Case Law Update Details
Utahns for Better Transportation v. USDOT
U.S. Court of Appeals - 10th Circuit
Legacy Parkway is a state funded, four lane, divided, limited access highway. The 14-mile long road was designed with a 65.6-foot median and a 59-foot berm and utility corridor. The right-of-way also included a 13-foot wide trail for pedestrians, bicycles, and horseback riding. The Parkway would connect to I-15 near Salt Lake City and run along the east side of the Great Salt Lake, finally connecting to US 89. The selected alternative crossed through wetlands surrounding the Great Salt Lake.
Plaintiffs appealed the district court's decision, raising numerous issues on appeal. Plaintiffs also requested an injunction pending appeal. The Court of Appeals granted the injunction, requiring plaintiffs to post a 50,000 bond. After briefing and oral argument, the Court of Appeals, in a comprehensive decision, affirmed in part, reversed in part and remanded for further consideration. The court continued the injunction, but released the plaintiffs from the obligation to post a bond.
Alternatives - Cost as Screening Factor. While acknowledging that generally NEPA does not require a detailed cost estimate for alternatives considered in the EIS, the Court found that when cost of an alternative is a factor in rejecting an alternative, the agency has an obligation to verify the accuracy of the cost information. The court found that the agency's failure to verify the costs of the D&GR Regional Alignment before rejecting that alignment violated the agency's obligation under 40 C.F.R. 1505(a) to verify accuracy of information supplied by an applicant.
Alternatives - Narrower Median. The court rejected plaintiffs' arguments that the FEIS failed to consider narrower-width alternatives. The court found that the FEIS adequately explained the rationale for including a 65.6-foot wide median, a trail system, and a "berm and future utility corridor" within the right-of-way for the project. The court noted that while the right-of-way width was adequately described and justified for NEPA purposes, issues raised under the Clean Water Act concerning the width of the median were subject to a different analysis.
Alternatives - Transit . While rejecting several of plaintiffs' claims that the EIS inadequately analyzed a mass transit alternative, the court found that a "sequencing alternative" should have been more fully considered in the EIS. The court noted that the stated purpose and need for the project was "to provide a solution to meet the 2020 transportation needs of the North Corridor." Given that purpose and need, as well as the acknowledgment in the EIS that mass transit was part of the answer to that need, the agency should have fully considered an alternative that delayed construction of Legacy Parkway until all or part of the expanded public transportation assumed in the EIS was in place. The court also found the EIS inadequate because it failed to consider an alternative that included a mass transit component as part of the project. The court noted that comments submitted by the Federal Transit Authority established that there could be significant savings gained by building Legacy Parkway at the same time as expanding public transit. The court found that the agency neither demonstrated why integrating transit with the Parkway was not reasonable nor that the EIS in fact considered a mass transit integration alternative.
Alternatives - Reduced Travel Demand. The court rejected plaintiffs' argument that the EIS should have considered an alternative that incorporated changes to local land use scenarios in conjunction with mass transit. The court accepted FHWA's explanation that rejection of that alternative was based on the fact that the local and regional governments had "resoundingly declined" to amend local plans to accommodate such an alternative.
Cumulative Impacts. The court rejected plaintiffs' claim that the potential future expansion of Legacy Parkway from four to six lanes was a cumulative impact required to be addressed in the FEIS. The court found that the FHWA's decision not to include a possible expansion to six lanes was not arbitrary and capricious, because the construction of the four-lane Legacy Parkway was not dependent upon the possible expansion to six lanes.
Induced Growth. The court upheld the discussion in the EIS of induced growth impacts. The court noted that an agency can rely on local planning documents and interviews with local planners to predict the likelihood of induced growth caused by the project. The court also stated that a difference of opinion between the project sponsor and participants in the NEPA process on possible induced growth does not make the sponsor's final conclusion unreasonable.
Impacts to Salt Lake City. The court found that the conclusion in the EIS that the project was consistent with Salt Lake City's Transportation Master Plan was not arbitrary and capricious. The court rejected plaintiffs' argument that the EIS should have considered traffic volume increases in Salt Lake City attributable to the project, noting that an EIS reasonably concluded that such increases were not significant given the overall volume of traffic predicted in the City.
Impacts to Wetlands. The court rejected each of plaintiffs' four arguments claiming that the analysis of impacts to wetlands was inadequate. First, the court found that the agency adequately explained it rationale in selecting the methodology used to identify wetlands. The court noted that an agency is entitled to rely on its own experts in selecting methodology. Second, the court found that the record contained ample factual support for the classification of the wetlands. Third, found that the agency provided a rationale explanation for its assumption that land uses within 1000 feet of a wetlands' perimeter serve as an indicator of the wetlands' functionality. Fourth, the court found that use of a Florida wetlands guidebook was not arbitrary and capricious, in part, because the record indicated that other documents were considered prior to using the Florida guidebook.
Impacts to Wildlife. The court found that the EIS did not adequately consider impacts to wildlife. The held that limiting analysis of wildlife impacts to an area within 1000 feet of the right-of-way was arbitrary. The court noted that use of the 1000-foot limit did not allow adequate consideration of impacts to migratory birds. The court also stated that increased mitigation for wildlife impacts does not resolve the underlying inadequacy in the analysis.
Impacts to Air Quality. The court upheld the adequacy of the analysis of impacts to air quality. The court noted that the agency adequately explained why changes in VMT and demand did not require a revised air quality impacts analysis.
Scientific Integrity. Plaintiffs claimed that the Travel Demand Model lacked scientific integrity because it produced illogical results that were inconsistent with the stated goals of the project. The court rejected the challenge, finding that the EIS adequately explains the apparently anomalous result. The court upheld the use of the TDM by "applying the rule of reason" and "overlooking minor technical deficiencies.
Segmentation. The court rejected plaintiffs' claims that the EIS impermissibly segmented analysis of the Legacy Parkway project from the planned expansion of I-15 and the proposed expansion of public transit in the region. The court noted that the EIS establishes that each component, although part of an over transportation plan, should "individually contribute to alleviation of traffic problem" in the study area.
Delegation. The court found that the FHWA and the Corps violated 40 C.F.R. § 1506.5(c) by relying upon an EIS that was prepared by a state agency for a state funded project. The court indicated that it was error on the part of both the FHWA and the Corps not to follow the requirements of 40 C.F.R. §1506.5(c) in preparing the EIS. While finding error, the Court determined that the EIS was adequate and found that there was no demonstrated bias in the analysis contained in the EIS.
Section 404 of Clean Water Act
Alternatives - Alignment. The court found that the Corps' rejection of the D&RG Regional Alignment was arbitrary and capricious. The court stated that the Corps failed to provide adequate justification for rejecting the alternative as "infeasible" based on high costs and impacts to existing development. While the court noted that an agency could find an alternative infeasible based on high costs or high impact on existing development, the record must demonstrate that the agency has verified the costs and impacts before reaching that conclusion.
Alternatives - Median width. The court determined that the Corps rejection of the "narrow right-of-way" alternative was arbitrary and capricious. The court rejected the Corps attempt to justify rejection of the narrower right-of-way alternative based on the inability of a narrower width right-of-way to accommodate amenities that were desired by the local residents and officials. The court noted that for purposes of granting a permit under Section 404 of the Clean Water Act, the infeasibility or impracticability of an alternative must be judged against the purpose and need for the project, not for extra "amenities" that do not address purpose and need.
Alternatives - Reduced Travel Demand. The court determined that the Corps properly rejected this alternative as impracticable. The Corps determined that an alternative land use scenario alternative was not reasonable based on the fact that there was no evidence that the local jurisdictions would implement the coordinated planning and restrictive zoning needed to implement this alternative. The court found that absent such evidence, the Corps was justified in finding that this alternative was not "available and capable of being done."
Cumulative Impacts. The court rejected plaintiffs claims that the Corps failed to consider adequately cumulative impacts attributable to filling of wetlands. The court noted that the Clean Water Act regulations define cumulative impacts more narrowly than the regulatory definition of cumulative impacts under NEPA. The court then stated that, given its previous finding that there was adequate consideration of cumulative impacts for NEPA purposes, the Corps adequately considered cumulative impacts in determining to issue the Section 404 permit for the project.
Impacts to Wildlife. The Court found that the Corps failed to give adequate consideration to impacts to wildlife in granting the permit. The court found that the limiting the analysis of wildlife impacts to an area within 1000 feet of the right-of-way failed to account for the required factual findings, including findings on the potential long-term and short-term effects of a proposed discharge on threatened and endangered species required under the Clean Water Act. The court referred to its decision invalidating the EIS for a lack of adequate consideration of wildlife impacts as further support for its finding that granting the Section 404 permit was arbitrary and capricious.
Impacts to Wetlands. The court found that the Corps adequately considered impacts to wetlands, based on the analysis of this issue in the NEPA context. The court rejected plaintiffs' characterization of the consideration of impacts to wetlands as "cursory", noting that plaintiffs ignored the Corps' analysis of wetland impacts in both the Corps' ROD and permit.