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Case Law Updates on the Environment (CLUE)

Case Law Update Details

Case Title

Senville v. Peters

Case No.

2:03-cv-00279-wks

Court

U.S. District Court - Vermont

State

Vermont

Date

5/24/2004

Project

Chittenden County Circumferential Highway

Project Type

Highway

Project Description

Chittenden County Circumferential Highway Project, also known as VT-289, involves the construction of a 15.8-mile, four-lane limited access highway from I-89 in Williston, Vermont to Vermont Route 127 in Colchester, Vermont. The planners divided the project into five segments, which was later increased to ten segments. In August 1986, VTrans, published a final EIS (FEIS) for certain segments of the project. In November 1986, VTrans issued a Record of Decision (ROD) approving those segments of the project. In September 1991, FHWA authorized construction funds for Segments C-F of the project. Sections C-F were completed in 1993. In August 2003, FHWA determined that adopting the 1986 FEIS issued by VTrans was appropriate so long as FHWA undertook a “reevaluation” the project. Following this determination, FHWA adopted the 1986 FEIS and issued a final revised reevaluation (FREA) concluding that no additional or new significant environmental impacts had been identified. FHWA then issued a ROD approving the project.

Case Summary

In October 2003, the plaintiffs filed suit against the Federal Highway Administrator and the Secretary of the Vermont Agency of Transportation. The plaintiffs sought a determination that the defendants’ evaluation of the project violated various federal laws. In May 2004, the U.S. District Court for the District of Vermont granted the plaintiffs’ motion for partial summary judgment, enjoining the defendants from further construction on Segments A-B until the defendants fully satisfied all NEPA requirements.

Key Holdings

NEPA

Independent Evaluation.  The District Court held that FHWA properly conducted an independent evaluation of the State’s 1986 FEIS in the course of deciding whether to adopt it for purposes of FHWA’s compliance with NEPA.  The court noted that the plaintiffs failed to substantiate their claim that FHWA did not critically review the entire 1986 FEIS.

Evaluation of Alternatives.  The District Court held that the evaluation of alternatives in the FEIS was sufficient to satisfy NEPA, but the alternatives in the FREA was not.  The court reasoned that although the consideration of alternatives was “hardly a model of rigorous exploration, the information was sufficient to permit a reasoned decision among the alternatives presented.”  The court noted that although the FEIS did not consider rail transit as an alternative, there did not appear to be a contemporaneous suggestion to consider rail transit.  The court further held that the FREA failed to consider alternatives to the project, but rather examined the changes to the selected alternative and provided a justification for construction of the next segments of the project.  The court reasoned that labeling the section “Alternatives” did not infer that alternatives were actually considered.  Thus, the court held that the FREA did not consider alternatives to the project.

Evaluation of Impacts.  The District Court held that the evaluation of alternatives in the FEIS was sufficient to satisfy NEPA, but the alternatives in the FREA was not.  The court reasoned that although the consideration of alternatives was “hardly a model of rigorous exploration, the information was sufficient to permit a reasoned decision among the alternatives presented.”  The court noted that although the FEIS did not consider rail transit as an alternative, there did not appear to be a contemporaneous suggestion to consider rail transit.  The court further held that the FREA failed to consider alternatives to the project, but rather examined the changes to the selected alternative and provided a justification for construction of the next segments of the project.  The court reasoned that labeling the section “Alternatives” did not infer that alternatives were actually considered.  Thus, the court held that the FREA did not consider alternatives to the project.

Segmentation.  The District Court reasoned that Segments A-B showed an independent utility because they were expected to result in reduced traffic volume and improved traffic flow.  The court also reasoned that Segments A-B would not compel the completion of Segments G-J and therefore did not restrict the future consideration of alternatives.  Thus, FHWA’s decision to evaluate Segments A-B separately from the other segments of the project was not arbitrary or capricious.

Significant Changes in Impacts / Supplemental EIS. The District Court held that FHWA’s evaluation of the significance of the environmental impacts of the changes to the project was inadequate, at least in part.  Specifically, the court held that FHWA did not adequately consider the induced growth impacts of the project.  Thus, the court held that FHWA improperly determined that the changes would not cause a “significant environmental impact” such that no supplemental EIS was required.  The court noted the requirement that an agency must consider context and intensity in determining whether impacts to the environment are “significant.”   The court reviewed the arguments presented by the plaintiffs, making the following conclusions:

  • Phased Project as Fundamental Change.  The court held that construction of the project in phases did not itself constitute a fundamental change to the project that would result in significant environmental impacts not evaluated in the FEIS.  The court stated that it must defer to the discretion of FHWA, provided FHWA took the requisite hard look and did not act arbitrarily or capriciously.
  • Air Quality.  The court held that FHWA made a reasoned decision to undertake no further review of the project’s impacts on air quality.  The court noted that the defendants updated their analysis of the air quality impacts of the project in 2002-2003 and determined that the traffic predictions were consistent with the predictions in the FEIS.  The court stated that the minor increase in vehicle miles traveled per day from the 1986 analysis to the 2002-2003 analysis did not indicate that additional analysis was necessary.
  • Water Quality.  The court held that in preparing the FREA, the defendants took a hard look at new information and changed circumstances relative to water quality and determined that additional review was not necessary.  The court noted that FHWA’s determination that impacts to water quality were expected to be less than anticipated in 1986 was not arbitrary and capricious.
  • Endangered and Threatened Species.  The court held that FHWA provided a reasoned basis for its conclusion that the endangered and threatened species affected by the project would not suffer a significant impact.  The court reasoned that the fact that the defendants demonstrated that the project complies with applicable water quality regulations, together with the defendants’ consideration of the Vermont Agency of Natural Resources’ assessment of affects on endangered and threatened species, suggested a reasoned basis for the defendants’ conclusion.
  • Environmental Justice.  The court held that FHWA appropriately concluded that the small shift in future job growth did not represent a significant adverse employment effect on low-income and minority neighborhoods.  The court reasoned that the FREA contained a section that evaluated and established the project’s compliance with Executive Order 12,898.
  • Noise Impacts.  The court held that FHWA’s determination that there were no new significant noise impacts was not arbitrary and capricious.  The court reasoned that the project’s noise impacts did not represent a substantial increase over the noise levels predicted in 1986.
  • “Highly Controversial.”  The court held that FHWA properly determined that the project’s impacts on the quality of human life were not “highly controversial.”  The court noted that “there is a difference between ‘controversy’ and ‘opposition,’” and found that the plaintiffs had not shown true controversy.
  • Induced Growth Impacts.  The court held that FHWA did not adequately consider the induced growth impacts of the project.  The court reasoned that the FEIS did not discuss the potential detrimental growth impacts of the project on adjacent and nearby towns, and that the FREA only glossed over this issue.  The court stated that the FREA’s “dismissive treatment of related growth pressures on the outlying towns… is inconsistent with a hard look at relocated or redirected growth, particularly when the issue was not part of the original EIS.”  The court noted that the absence of an analysis of cumulative impacts from any of the NEPA documents provided further support for this conclusion.
    Section 4(f)

Section 4(f)

Evaluation of 4(f) Alternatives. The District Court held that the FEIS did not adequately evaluate alternatives to the use of Section 4(f) resources.  The court reasoned that the FEIS failed to include information from which to evaluate the no-build, rebuild, or limited build alternatives.  Thus, the FEIS did not demonstrate that the agency made a reasoned decision in selecting the preferred alternative.  The court further noted that the FEIS did not include information that demonstrated that “there are unique problems or unusual factors involved in the use of alternatives that avoid these properties, or that the cost, social, economic, and environmental impacts, or community disruption resulting from such alternatives reach extraordinary magnitudes,” as required under Section 4(f).

Litigation Procedure

Ripeness. The District Court held that the issue of whether the FEIS was adequate for purposes of permitting FHWA to adopt the document became ripe for review upon the issuance of the ROD in 2003.  The court therefore rejected the defendants’ argument that the plaintiffs’ challenge to FHWA’s Section 4(f) analysis was not ripe for review.

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