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Case Law Updates on the Environment (CLUE)

Case Law Update Details

Case Title

Highway J Citizens Group v. USDOT

Case No.

656 F.Supp.2d 868


U.S. District Court - Wisconsin






Highway 164 Project

Project Type


Project Description

The project involves improvements to Highway 164, also known as County J. The project would widen the road from two lanes to four lanes. Its purposes included: improving safety by reducing conflicts between local and through traffic; providing a plan to guide local land use decisions; improve local and through-traffic access; and improve operational efficiency. FHWA and Wisconsin DOT (WisDOT) issued an FEIS in December 2001 and FHWA issued a ROD in March 2002. The ROD approved a plan to widen the road in eight phases, over several decades, with the exact time frame to be determined based on future traffic volumes. At the time of this court decision, the first three phases of the project had been completed. Just north of the eighth phase of this project, FHWA and WisDOT also proposed a project known as the Ackerville Bridge. That project was approved in a separate NEPA study.

Case Summary

The procedural history of this case is complex, because it involves two separate lawsuits against two separate projects. The plaintiffs (“Citizens”) first filed a lawsuit challenging the NEPA study for the Ackerville Bridge. In that case, they argued that the Ackerville Bridge and Highway J projects should have been considered in a single EIS, and asked the court to halt both the Ackerville Bridge project and the Highway 164 project. The district court upheld FHWA’s decision to treat the projects separately, and the court of appeals agreed. After FHWA issued the ROD for the Highway 164 project, the Citizens – along with a separate group, known as WEAL – filed a lawsuit challenging the Highway 164 ROD. FHWA sought to have the second lawsuit dismissed, arguing that Citizens was barred from re-litigating issues that it raised or could have raised in the first lawsuit. The district court initially ruled that both Citizens and WEAL were barred from challenging the Highway 164 ROD, and that ruling was upheld by the court of appeals. The court of appeals decision meant (or so it seemed) that both Citizens and WEAL were barred from challenging the 2002 ROD. The plaintiffs then return to the district court, and WEAL advanced a new argument for allowing WEAL to challenge the 2002 ROD. This time, the district court agreed with WEAL – and allowed that group to proceed with its challenge to the 2002 ROD. On the merits, the court agreed with WEAL that FHWA had violated NEPA, and overturned FHWA’s approval of the project.

Key Holdings

Litigation Procedure

Standing.  The defendants argued that WEAL lacked standing to sue, because the groups’ members had not demonstrated that they had a concrete interest in the project.  WEAL submitted affidavits from two members asserting that they live in Waukesha County, regularly travel on Highway 164, and derive personal enjoyment from the environmental resources along the Highway 164 corridor.  Based on these affidavits, the court found that WEAL had standing to bring the lawsuit.  Based on similar affidavits, the court also held that Citizens had standing to sue the Corps, challenging the Section 404 permit. 

Mootness.  The defendants argued that the case was moot, because three phases of the project had been completed, and it would be impractical to dismantle the completed phases or restore the wetlands that had been impacted.  The court found that the case was not moot, because it was still possible for the court to grant “meaningful relief” to the plaintiffs:  “I could order defendants to dismantle the completed phases, convert the highway back to a two-lane highway, and to the extent possible, restore the surrounding environment.  Likewise, I could order the Corps to revoke the permits that allowed WisDOT to fill the wetlands, and the Corps could then decide to require WisDOT to restore the land to its original condition. … Again, it likely will be impossible to completely restore the environment to its pre-construction condition, but it may be possible to partially restore it and to partially remediate plaintiffs' injuries. At the least, I could order defendants to take steps to minimize or offset the environmental damage.”

Ripeness.  The defendants also argued that the case was not ripe for judicial review, because decisions on the remaining five phases would likely not be made until 2018 or later.  The court also rejected this argument: “The problem with defendants' ripeness argument is that WEAL does not challenge any particular phase of the project. Rather, it challenges defendants' decision to implement the entire corridor-expansion project, a decision that defendants have formalized in the March 6, 2002 ROD….  [T]he APA limits plaintiffs to challenging the final agency decision as embodied in the ROD, and it is impossible to separate the ROD into sub-parts for litigation purposes.”

Claim Preclusion.  In an earlier stage of the case, the court had ruled that WEAL was barred from challenging the 2002 ROD, under a legal doctrine known as claim preclusion.  In essence, this doctrine bars a plaintiff from raising in a second lawsuit issues that it could have raised in an earlier lawsuit involving the same parties and the same subject matter.   Under that doctrine, the Citizens group was clearly barred because Citizens was actually the plaintiff in the first lawsuit.  The more difficult question was whether WEAL  - which was not a plaintiff in the first lawsuit – should be barred from challenging the 2002 ROD.  Initially, the district court ruled that WEAL was barred.  But in this decision, the court reversed course, based in part on a U.S. Supreme Court decision that had occurred since the district court’s earlier decision barring WEAL’s claims.  After a complex analysis, the court concluded that – contrary to its earlier rulings – WEAL was not barred from challenging the 2002 ROD.

Standard of Review.  The court explained the legal standards used in reviewing NEPA documents, emphasizing that courts should review the document holistically: “With a document as complicated and mired in technical detail as an EIS, it will always be possible to point out some potential defect or shortcoming, or to suggest some additional step that the agency could have taken to improve its environmental analysis. An EIS is unlikely to be perfect, and setting aside an EIS based on minor flaws that have little or no impact on informed decisionmaking or informed public participation would defy common sense. Thus, rather than getting bogged down in possible technical flaws, a court must ‘take a holistic view of what the agency has done to assess environmental impact.’”

Indirect Effects.  The EIS included an extensive discussion of indirect effects, which was based in part on a review of local land use plans and interviews with local land use officials and property owners.  The analysis concluded that the project would not substantially influence growth patterns.  The court found this analysis inadequate:

  • "The problem with defendants' discussion is that it is not a discussion but simply a summary of land use plans and survey responses followed by a bare conclusion. The EIS does not include even one sentence explaining how defendants reached the conclusion that expanding Highway 164 would not substantially influence growth. Defendants do not explain how they interpreted the regional and local land use plans, and thus it is not clear why defendants thought that such plans indicated that the same amount of growth would occur whether or not Highway 164 was expanded.  Nor can defendants' conclusion be reasonably inferred from the survey responses. Only four municipalities responded to the survey, and two of the four stated that an expansion to four lanes would likely increase the intensity of development over that which they had planned for. I simply cannot understand how defendants reached the conclusion that the expansion would not substantially influence development when fifty percent of survey respondents anticipated that it would.”
  • "At oral argument, defendants' counsel agreed that the discussion of indirect effects in the EIS was conclusory but suggested that the agency conducted a more complete analysis but did not include it in the EIS. However, to promote informed public participation and informed decisionmaking, the agency must disclose its analysis in the EIS itself and not keep it private within the agency. 40 C.F.R. § 1502.16(b) (requiring that EIS “include discussions of ... [i]ndirect effects and their significance”); …  In any event, defendants do not point to any document in the administrative record that contains any indication that defendants performed a more thorough analysis than that which appears in the EIS. Therefore, I find that defendants' treatment of indirect effects was inadequate and that the EIS must be revised to include an explanation of the reasoning that led defendants to conclude that the expansion would not substantially influence development.”
  • "I add that defendants' conclusion is extremely counterintuitive. One need not be an expert to reasonably suspect that if Highway 164 were not expanded development in the region would be constricted. Presumably, congestion on a two-lane Highway 164 would discourage development in the area, whereas expansion of the highway to four lanes would cause development to continue unabated.  Thus, as discussed in more detail below in the context of cumulative impacts, the EIS cannot simply assume that development will occur at the same pace whether or not defendants yield to the demand for more roads.”
  • "The expansion appears to be an event that would itself contribute to growth in the region, and if on remand defendants adhere to their conclusion that it is not, they must cite data and reasoning supporting their conclusion.   If after reasonable effort defendants find that they cannot determine the effect of the expansion on development, they must demonstrate that they complied with the CEQ regulation prescribing an agency's duties in the face of incomplete or unavailable information.”
  • "It is no answer to say that the expansion project is intended to “serve” existing and future development rather than to “drive” it.   Whatever defendants' intent may be, the fact remains that “serving” development fosters more development, and some of that development (and its consequent environmental impacts) might not occur if Highway 164 remained a two-lane highway. Defendants must try to identify the extent to which the expansion will affect future development and cannot simply assume that the level of development will be the same no matter what they do.”

Cumulative Impacts.  The EIS included a discussion of cumulative impacts to wetlands, surface water, agricultural lands and upland woods.   This discussion explained that the Highway 164 expansion project, combined with other projects, would contribute to impacts on these projects.  The court found this analysis inadequate, citing the CEQ’s cumulative impacts guidance:

  • "What is missing from the EIS is a meaningful discussion of how the agency's decision regarding the Highway 164 project fits into the overall cumulative impact to these resources. The fundamental flaw is that the EIS simply assumes (with no supporting analysis) that the area will continue to urbanize whether or not new highways are built. Having assumed that the area will continue to urbanize with or without new roads, the EIS acknowledges that this project and others will continue to harm resources, but it essentially advises that, given the existing trend towards urbanization, the environmental harm will come to pass no matter what decision the agency makes. This discussion does little to assist informed decisionmaking or informed public participation because it does not discuss whether, or the extent to which, the agency's decision is likely to contribute to the problems associated with urbanization and suburban sprawl.”
  • "The CEQ's memorandum [Considering Cumulative Effects Under the National Environmental Policy Act (1997)] … confirms that the discussion in the EIS is inadequate.  … [T]he EIS must explain the cause-and-effect relationship between human activities (including the agency's activities) and the cumulative impact to environmental resources.  In this regard, CEQ advises agencies to develop a ‘conceptual model of cause and effect’ to assist in identifying the effects of human action. Once it has developed a cause-and-effect model, the agency must attempt to fit past actions, present actions, the proposed action, and future actions into the model.  But the agency cannot simply lump all actions together and explain that they will have a given cumulative effect. Rather, the agency must ‘separat[e] [the] effects into those attributable to the proposed action or a reasonable alternative versus those attributable to past and future actions.’”
  • "In the present case, the cumulative-impacts analysis falters by starting the cause-and-effect pathway at urbanization. Although the EIS notes that the trend towards urbanization will likely impact the region's resources, it makes no attempt to determine the causes of urbanization itself. One need not be an expert in traffic engineering or land-use planning to recognize that road building is a potential cause of urbanization.  Indeed, the EIS at times seems to acknowledge this fact.  However, besides these occasional acknowledgments, the EIS makes no attempt to assess the incremental impact of road building on urbanization and its associated ill effects.  It makes no attempt to explain how the agency's decision, when combined with other past, present and future decisions, might influence development in the region.”
  • "This defect is particularly egregious because many of the present and future decisions affecting traffic in the region are likely to be made by the same agencies that are responsible for the present decision - WisDOT and the FHWA. Thus, unlike many situations, in which the majority of human activities resulting in cumulative impacts are beyond the agency's power to prevent, here we have a scenario in which the agency, through a series of decisions, might be able to exert significant control over the cumulative environmental impact. It is therefore particularly important to identify whether the agency's cumulative decisions regarding highways contribute to urbanization or whether, as the EIS presently assumes, urbanization will occur regardless of what the agency does.”
  • "Accordingly, defendants must study and, to the extent possible, quantify the contribution of past, present and reasonably foreseeable future transportation projects to urbanization and its associated effects. Defendants cannot simply assume that urbanization will occur with or without new or expanded highways. Moreover, defendants must attempt to separate effects into those attributable to the proposed expansion of Highway 164 (or a reasonable alternative) and those attributable to past and future transportation projects and other sources of urbanization so that the incremental effect of the Highway 164 project can be seen in light of the overall cumulative effect.  Such an analysis is crucial to informed decisionmaking and informed public participation.”
  • "[T] to the extent a complete analysis is not feasible, defendants must thoroughly explain their attempts to identify and quantify the relevant effects and be prepared to demonstrate that they complied with the CEQ regulation prescribing an agency's duties in the face of incomplete or unavailable information, 40 C.F.R. § 1502.22.”

Range of Alternatives.  The plaintiffs argued that the EIS improperly eliminated a reasonable alternative – known as the ‘County Y Alternative – without detailed study.  The County Y was one of several “off-alignment alternatives,” which were designed to use existing roads to divert traffic off Highway 164. FHWA and WisDOT had eliminated that alternative  based on a finding that it did not divert enough traffic off Highway 164 to meet the purpose and need.  The court found this rationale inadequate:

  • "[T]he EIS does not demonstrate that defendants conducted a reasonable inquiry into whether the County Y alternative would have satisfied the project's purposes. As far as the EIS reveals, defendants did no more than glance at the County Y alternative before dismissing it from detailed study. Although defendants state that the County Y alternative was not substantially different from the Power Corridor alternative (which was studied in more detail), they do not explain this conclusion. Indeed, defendants do not even identify the criteria they relied on when concluding that the two alternatives were substantially the same, and the criteria are not obvious. Although the EIS states that the County Y alternative would have been less efficient than the Power Corridor alternative due to conflicts with local traffic, defendants do not show that this conclusion was the product of any kind of expertise or careful study. Again, it appears that defendants simply glanced at the map and then formed an off-the-cuff opinion."
  • "Instead of dismissing the County Y alternative based on this off-the-cuff opinion, defendants could have modeled it in an effort to confirm their suspicion that it was not substantially different from the Power Corridor alternative. Defendants have not argued that constructing such a model would have been unduly burdensome, and I have no reason to think that it would have been. Moreover, because the County Y alternative would likely have resulted in substantially fewer environmental impacts than the Power Corridor alternative, the benefits of modeling the County Y Alternative appear to have been sufficient to justify further study under the rule of reason.”
  • "WEAL argues that defendants impermissibly rejected the County Y alternative on the ground that it was “not consistent with regional and county transportation system plans that document the importance of [Highway 164] as a major north-south arterial and the need for capacity expansion as part of the recommended systemwide transportation improvements.” …  I agree that this reason is somewhat circular and that defendants cannot use the need for additional capacity on Highway 164 as a reason for refusing to study alternative means of providing that capacity.  The very point of the reasonable alternatives exercise is to determine whether less destructive alternatives might achieve the purpose of the project.  Here, defendants seem to have simply assumed that Highway 164 must be expanded to four lanes because local transportation plans document the need for additional capacity. Again, however, defendants must examine whether it is possible to provide this capacity through an alternative that is less environmentally destructive than expanding the highway to four lanes.”

Cumulative Effects.  The plaintiffs argued that an SEIS was required because: (1) the defendants modified the project, replacing three proposed overpasses with at-grade crossings; and (2) new land use plans were adopted by two municipalities in the Highway 164 corridor.  The court agreed with FHWA and WisDOT that these changes did not require an SEIS, because “WEAL does not show that the new information seriously changes the environmental picture.”
Title 23

23 USC § 109(h) – Air Quality Analysis.  The plaintiffs argued that 23 USC 109(h) required FHWA and WisDOT to conduct an air quality analysis, separate from the analysis required under NEPA.  The court rejected this argument:  “WEAL assumes that 23 U.S.C. § 109(h) requires the FHWA to perform an analysis of air quality that is distinct from its analysis under NEPA. However, WEAL cites no authority supporting its interpretation of Section 109(h), and the only authority I have found states that an adequate analysis under NEPA will satisfy Section 109(h) and that no separate analysis is required.” Therefore, the court found no violation of 23 USC 109(h).  Despite this finding, the court still required additional analysis of air quality:  “Nonetheless, it is apparent that one of the potential indirect effects of the Highway 164 expansion, and one of the cumulative impacts of this and other highway projects in the region, will be damage to air quality. Thus, on remand defendants must incorporate air quality into their discussion of indirect and cumulative impacts. That is, they must examine how any increase in urbanization attributable to new and expanded highways might affect air quality in the region.”

23 USC § 128 - Public Hearing.  The plaintiffs argued that the public hearings held by FHWA and WisDOT, which used an open house format, did not satisfy the federal requirement for a public hearing under 23 USC § 128.  FHWA argued that it had interpreted the term “public hearing” to include an open-house format, citing a public involvement handbook published by FHWA in 1996.  The court rejected this argument on several grounds.  It found that (1) the handbook did not represent FHWA’s official interpretation; (2) the handbook did not actually say that an open house could satisfy the public hearing requirement; and (3) in any event, it was unreasonable for FHWA to conclude that an open house would satisfy the public hearing requirement:

  • "[E]ven if the FHWA's official interpretation is that open forums of the type held by WisDOT satisfy the public hearing requirement, I find that this interpretation is unreasonable….  Although the term ‘public hearing’ is not unambiguous in all respects, this much is clear: a public hearing must allow citizens an opportunity to express their views in front of agency representatives and other citizens.  As defendants state in their brief, the word ‘hearing’ as used in Section 128(a) means “the opportunity to be heard, to present one's side of the case, or to be generally known or appreciated.”  In the context of the statute, the adjective ‘public’ means ‘accessible to or shared by all members of the community.’  Webster's Third New International Dictionary Unabridged 1836 (1986).  Reading these words together, the only reasonable interpretation is that a ‘public hearing’ requires, at the least, an opportunity for citizens to make their views generally known to the agency and the community.” 
  • "The open house held by WisDOT did not afford such an opportunity. Instead, WisDOT allowed citizens to dictate their views to a court reporter in private or submit written comments. Although these views were later incorporated into the administrative record for the project, the open house afforded no direct opportunity for citizens to make their views generally known. It offered no opportunity for one citizen to learn about the views of a fellow citizen, no opportunity for one citizen to influence another. Presumably, after the open house was over and all the dictated comments were transcribed, an interested member of the community could have made an open records request and read the comments made by his or her fellow citizens. But this is no substitute for an opportunity to make one's views generally known through a forum that is ‘accessible to or shared by all members of the community.’ A public hearing provides a direct link between the citizen and his or her community, not an indirect link filtered through court reporters and open records requests.”
  • "In short, an open house at which citizens can express their views to no one other than a court reporter is not a public hearing. Such an open house is not what is called to the mind of a reasonable person when he or she reads or hears the words ‘public hearing.’”

Clean Water Act

Section 404(b)(1) Guidelines – LEDPA Analysis.  The Corps of Engineers had issued two Section 404 permits for the project.  The plaintiffs challenged the Corps’ approval of those permits, arguing that the Corps had violated the Section 404(b)(1) Guidelines when it issued the permits because there was a “practicable” alternative – the County Y Alternative – that would cause less harm to waters of U.S.”  The court agreed with the plaintiffs’ argument:

  • ”Plaintiffs argue that the County Y alternative discussed above was a practicable alternative that would have had a less adverse impact on the aquatic ecosystem, and that the Corps improperly concluded based on the deficient EIS that the County Y alternative was not practicable. At oral argument, counsel for the Corps agreed that if the EIS's discussion of reasonable alternatives was found to be deficient, the Corps's decision to issue the two permits at issue in this case would have to be vacated.  As discussed above, I find that the EIS's discussion of reasonable alternatives was deficient, and therefore the Corps's decisions with respect to the two permits must be vacated and the matter remanded to the Corps for reconsideration.”

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