Case Law Updates on the Environment (CLUE)
Case Law Update Details
Sierra Club v. FHWA
U.S. District Court - Texas
This project involves a section of the Grand Parkway in Houston, Texas. Overall, the Grand Parkway is a proposed 180-mile outer loop. The Grand Parkway was first proposed in the early 1960s, and most sections of the project remain in planning stages. The section at issue in this case is "Segment E," an 18-mile section in northwest Houston. It would connect I-10 to U.S. 290. In 1993, FHWA and TxDOT issued a notice of intent to prepare an EIS for Segment E. They published a Draft EIS in 2003 and a Final EIS in 2007. FHWA issued a ROD in June 2008. In June 2009, FHWA and TxDOT issued a Reevaluation of the FEIS to consider the implications of a design change at an intersection and to address other issues. Based on that reevaluation, FHWA issued a revised ROD in June 2009, incorporating the changes discussed in the Reevaluation.
In March 2009, the plaintiffs filed a lawsuit challenging the revised ROD, based on several alleged violations of NEPA, including: (1) range of alternatives, (2) impacts to hydrology and drainage; (3) impacts to wetlands; (4) air impacts and safety risks; (5) noise impacts; and (6) indirect and cumulative impacts. In this decision, issued on May 19, 2010, the court ruled in favor of FHWA and TxDOT on all issues.
Purpose and Need. The plaintiffs argued that the P&N was defined in a way that improperly favored the build alternatives - for example, by stating that a purpose was to "expand capacity' rather than 'address increased demand,' and by stating that a purpose was to increase 'system linkage.' The court found that the P&N was appropriate, even though the P&N could only be achieved by new road capacity:
Range of Alternatives
- "The FEIS provides a rationale for each of the stated purposes. For example, the FEIS explains the need for system linkage by stating that a significant portion of traffic in the study area is engaged in circumferential travel, but that at present the communities and major highways in the area lack a substantial circumferential road to connect them efficiently.... It may be true that only a road can promote the goal of system linkage, but it is also true that existing roads become more useful when linked efficiently to other roads; system linkage is therefore a rational goal of the project."
- "Although the conclusions in the FEIS about alternatives may be debatable, what matters under NEPA is that the alternatives were considered and the Study Team's reasoning was explained. The court concludes that any bias toward the Build alternative in the statement of purposes is not sufficient to make the FEIS noncompliant with NEPA."
. The plaintiffs claimed that the EIS was inadequate because it considered only two alternatives - Build and No-Build. The court found that, within the Build alternative, the EIS considered a range of options: the Build alternative included three different corridors, and different alignments within each corridor. The court found that this range of alternatives was sufficient. The court also found that the environmental impacts analysis was sufficiently detailed.
Ability of Selected Alternative to Meet Purpose and Need
. The plaintiffs also argued that the Build alternatives would do little to achieve the P&N, because the traffic data in the EIS showed relatively small improvements as compared to the No Build condition. The court acknowledged that the improvements were modest, but concluded that the court must defer to the agencies' judgment about whether to proceed with the project:
Impacts to Hydrology, Drainage, Floodways, and Floodplains
- "These data suggest only a modest improvement in traffic congestion under the Build scenario. Plaintiffs' complaint is valid in that it calls into question the wisdom of building an expensive and environmentally disruptive road for such modest traffic benefits. It is not the role of this court, however, to question the wisdom of the conclusions expressed in the FEIS. 'NEPA merely prohibits uninformed-rather than unwise-agency action.'"
. The plaintiffs argued that the EIS relies on outdated floodplain maps and therefore underestimated the amount of floodplain that would be affected by the project. The court concluded that the floodplain analysis was sufficient because (1) FHWA and TxDOT used the best available floodplain data in the EIS, even though that data was not perfect; and (2) when floodplain maps were revised following the ROD, FHWA and TxDOT prepared a Reevaluation to address the new floodplain data, and reasonably concluded that the revised data did not indicate the choice of preferred alternative should be changed.
Impacts to Wetlands
. The plaintiffs alleged that the wetlands analysis in the EIS was inadequate because it underestimated the project's impact on wetlands and it did not include a sufficiently detailed mitigation plan for wetlands. The court rejected the plaintiffs' arguments, because it found that the EIS included a detailed assessment of wetlands impacts as well as a discussion of potential minimization and mitigation measures. It found that a complete wetlands mitigation plan was not required:
Air Impacts (including Greenhouse Gas Emissions
- "The court concludes that the defendants have taken a hard look at the adverse environmental impacts Segment E is likely to have on wetlands, and that they have provided a reasonably complete discussion of possible mitigation measures. The record shows that the defendants have made a sustained effort since the early 1990's to document the types of wetland habitats in the affected region and to quantify the impact that the construction project will have on those habitats. The FEIS discusses mitigation efforts that can reduce those impacts or compensate for them through off-site projects. Defendants have followed the procedures that NEPA requires."
- "Plaintiffs also argue that the FEIS fails to consider the indirect impact on wetlands resulting from the increased development spurred by the construction of Segment E. Plaintiffs are incorrect. The FEIS states, 'Construction of the new location roadway would likely facilitate new development in proximity to proposed access points resulting in a gradual decrease of remnant emergent wetlands (prairie potholes) and human-induced wetlands (rice fields) on the prairie; therefore, leading to the removal or fragmentation of wildlife habitat.' The FEIS notes however that development in the affected wetlands would require coordination with the USACE and other permitting agencies. Although the discussion is brief, the FEIS clearly considers the indirect impacts of induced growth."
- "Plaintiffs argue that the FEIS's discussion of wetlands is inadequate because it fails to consider the option of spanning the wetlands with bridges.... [T]he court notes that, as discussed above concerning the FEIS's consideration of alternatives, NEPA does not require that the defendants consider every possible alternative. Since the FEIS is concerned primarily with whether and where to build Segment E, and leaves most design considerations for later approval in conjunction with other agencies, the court concludes that the discussion of this design alternative meets NEPA's requirements."
- "Finally, plaintiffs argue that the discussion of mitigation in the FEIS is inadequate because it 'is so broad and general as to amount to no mitigation plan at all.' The court disagrees. The FEIS discusses mitigation options such as roadway design elements on-site restoration of degraded habitats, and off-site creation of wetlands. The FEIS discusses a coordinated effort with TPWD, USFWS, and USACE to develop a mitigation plan that will offset wetlands impacts, particularly through off-site measures. Although defendants have not formulated and adopted a complete mitigation plan, they are not required to."
). The plaintiffs alleged that the air quality analysis was inadequate because it inadequately addressed particulate matter emissions and greenhouse gas emissions. The court upheld the EIS on both issues.
- Particulate Matter. The court held that the EIS adequately addressed PM emissions by considering PM as part of compliance with air quality conformity requirements under the Clean Air Act. The court stated that: "The defendants considered air quality through the framework used by the EPA and the Clean Air Act to analyze air quality issues -- the NAAQS for criteria pollutants -- and concluded that construction of Segment E would not lead the Houston area to violate the NAAQS for any criteria pollutant. The defendants' decision to consider air pollution issues through the same framework used by the EPA to enforce the Clean Air Act cannot be considered arbitrary or capricious. Also, since the FEIS specifically addresses the issue of particulate matter under the NAAQS framework, the court concludes that the defendants have not failed to consider the highway's effects on local levels of particulate matter."
- Greenhouse Gas Emissions. "The court has not found any evidence that the defendants considered the impact of Segment E on greenhouse gas emissions. The plaintiffs have not, however, pointed to any law or regulation showing that defendants' failure to consider greenhouse gas emissions makes the FEIS inadequate, or makes the decision of the FHWA arbitrary or capricious. Because the defendants considered the issues of particulate matter and the effects of air pollution on human health, and because the defendants were not required to consider the effects of Segment E on greenhouse gas emissions, the court concludes that the defendants are entitled to summary judgment as to the plaintiffs' claims regarding consideration of air pollution."
. The plaintiffs claimed that the EIS underestimated the potential noise impacts of the project, and that the defendants did not adequately consider noise abatement measures, such as noise absorbing pavement and vegetation barriers. The court held that the noise analysis was adequate and that noise mitigation measures were sufficiently considered.
Indirect and Cumulative Impacts
- "Plaintiffs allege that the FEIS underestimates the potential noise impacts of Segment E, but they provide no evidence that this is the case. Such conclusory allegations do not provide grounds for relief."
- "Plaintiffs also allege that defendants have failed to consider fully all reasonable noise abatement measures, including noise absorbing pavement and vegetation barriers. Plaintiffs do not provide any legal basis for concluding that defendants are obligated to consider these specific measures, which are not listed among the recommended noise abatement measures in 23 C.F.R. § 772.13(c)."
. The plaintiffs argued that the EIS failed to consider indirect, secondary, and cumulative impacts, but did not specify the types of indirect, secondary, or cumulative effects the defendants allegedly failed to consider. The court noted that the EIS actually contained a 70-page discussion of indirect and cumulative impacts. It rejected the plaintiffs' "conclusory" allegations and upheld the EIS's analysis of indirect and cumulative impacts.