Litigation Procedure

Standing.  FHWA argued that one of the plaintiffs - the private company that owns the existing Ambassador Bridge - lacks standing to bring NEPA claims because its interests in the case are purely economic, and therefore do not fall within the “zone of interests” protected by NEPA.  The court held that the company does have standing because “while the Bridge Company’s interest in challenging the ROD has an undeniable economic component, the Court is satisfied that the Bridge Company has also alleged an environmental injury in terms of the alleged adverse affect on air quality and noise in the Delay area where the Bridge Company does business.”

NEPA

Range of Alternatives.  The plaintiffs claimed that the range of alternatives in the EIS was inadequate, primarily because FHWA eliminated the alternative of adding a “second span” to the existing Ambassador Bridge.  FHWA had considered that alternative in the alternatives screening process, but eventually eliminated it “because it would have unacceptable impacts on the Canadian side and failed to satisfy the full complement of project needs on the U.S. side -- efficiency via freeway-to-freeway access and redundancy.”  The court upheld this rationale, finding that “the rejection of all other proposed alternatives, including in particular the Second Span, had a reasoned basis.”  In reaching this conclusion, the court noted that it was acceptable for FHWA to give deference to the Canadian government’s determination that the second-span alternative was unacceptable.

Consideration of No-Build Alternative.  The plaintiffs also claimed that the No-Build alternative was not adequately considered.  In the EIS, FHWA evaluated a No Build alternative that included maintenance of the existing Ambassador Bridge and eventual replacement of that four-lane facility, and also considered a variation in which the existing facility is replaced with a six-lane bridge.  The court reviewed the analysis of the No Build alternative throughout the EIS, and concluded that it was sufficient.

Purpose and Need - Traffic Forecasts.  The plaintiffs contended that the purpose and need was flawed because it was based on flawed traffic forecasts, which overstated the need for the project.  The court reviewed the various traffic technical reports in the record, including extensive documentation of the traffic modeling process, and concluded that “the FHWA’s traffic data resulted from a reasoned process.”  The court also rejected the plaintiffs’ argument that FHWA should have considered the “investment grade traffic and revenue forecast” that was prepared by the Canadian government for financial planning purposes.  The court held that the T&R study involved “a wholly different inquiry from whether capacity is needed in the first place or whether there are policy considerations supporting a second crossing.”  Therefore, the court concluded that it was appropriate for FHWA not to consider the results of the T&R study.

Purpose and Need - Redundancy.  The plaintiffs challenged the “redundancy” element of the purpose and need - that is, the finding that there was a need for a new crossing, separate from the existing Ambassador Bridge.  The court found that FHWA had provided sufficient support for including redundancy as one element of the purpose and need.

Process Streamlining.  The plaintiffs argued that FHWA violated NEPA because it “accelerated the NEPA process to avoid criticism from cooperating agencies.”  The court reviewed evidence showing that FHWA had held numerous meetings with agencies throughout the process, and that cooperating agencies had been actively involved and had concurred at key points in the process.  The court found that the process had not been improperly accelerated.

Fraud/Bad Faith.  The plaintiffs argued that FHWA had engaged in an “illegal cover-up” and “fraud” during the NEPA process.  The court rejected this argument, calling it “fatuous” (meaning foolish or silly).

Environmental Justice.  The plaintiffs attempted to challenge FHWA’s compliance with the Executive Order on environmental justice (EO 12898). The court noted that the EO itself states that it does not provide the basis for challenges to agency actions, and noted that the plaintiffs had not cited any authority that would allow them to bring claims based on the EO.  The court then considered the substance of the plaintiffs’ EJ claims - e.g., the allegation that low-income and minority populations had been “targeted” by decision-makers, “downgraded” mitigation for those communities, or “misled” those communities.  The court ruled in FHWA’s favor on all EJ issues.

Range of Alternatives - Intermodal Rail.  The court also considered an argument raised by an amicus (a group that was not a plaintiff, but was allowed to file a brief).  The amicus argued that the EIS was flawed because it did not adequately consider intermodal rail as an alternative. The court upheld FHWA’s determination that intermodal rail did not meet the purpose and need for the project:  “FHWA reasonably concluded that although non-highway alternatives such as intermodal rail were a component of the long-term border congestion strategy, a new international bridge was necessary to fulfill the Purpose and Need of the project.”

Bias - Consultant Scope of Work.  The amicus also argued that the NEPA process was flawed because the MDOT’s contract with the consultant preparing the EIS limited the consultant’s work to highway alternatives.  The court held that “the Scope of the Work for the contract was clear that [the consultant’s] analysis could include non-highway alternatives.  There was no predetermined conclusion that only highway alternatives would be analyzed as part of the DRIC process.”

• Latin Americans for Social and Econ Devt v. FHWA - 04-05-2012.pdf (138 kb)