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CASE LAW UPDATE DETAILS
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Date Printed:
5/19/2021
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Case Title
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Case No.
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Zeppelin v. FHWA
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2017 WL 6947923
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Court
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State
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Date
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U.S. District Court - Colorado
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Colorado
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11/9/2017
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Project
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I-70 Denver
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Project Type
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Highway
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Project Description
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The project involves replacing a 1.2-mile viaduct that carries a portion I-70 through Denver with a below-grade roadway, known as the Partial Cover Lowered (PCL) Alternative. The project was carried out by Colorado DOT (CDOT) with funding from FHWA. The PCL Alternative included a system of pipes and detention ponds to address stormwater runoff and prevent flooding of the new below-grade roadway; this system would meet the project’s stormwater management needs without any additional stormwater management measures being constructed by the City of Denver. FHWA and CDOT issued a Final EIS in January 2016, and a ROD selecting the PCL Alternative in January 2017.
During the same time that the PCL Alternative was being studied, the City and County of Denver proposed to construct a set of improvements to manage stormwater runoff and prevent flooding in two neighborhoods near the I-70 project, collectively known as the Platte to Park Hill (P2PH) project. CDOT coordinated with Denver on the P2PH project, provided part of the funding for that project, and designed its PCL Alternative to be compatible with the P2PH project. However, CDOT and FHWA treated the PCL Alternative and the P2PH project as stand-alone actions that each had independent utility and would take place regardless of the other.
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Case Summary
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The plaintiffs sued FHWA and CDOT, alleging violations of NEPA and Section 4(f). The NEPA claims alleged that the EIS failed to adequately discuss impacts from disturbing contaminated soils when digging the freeway trench, mitigation measures to avoid exposure to hazardous materials, and costs required to remediate contamination. The NEPA claims also alleged that the EIS failed to analyze the P2PH project as a connected action or similar action, and that the cumulative impacts analysis in the EIS did not adequately consider the P2PH project. The plaintiffs’ Section 4(f) claim alleged that the agencies did not avoid destruction of part of a public golf course that would occur as a result of the P2PH project, which they claimed was a necessary part of the PCL Alternative.
FHWA and CDOT filed motions to dismiss the plaintiffs’ NEPA and Section 4(f) claims that alleged the P2PH project was an integral part of the PCL Alternative. The court ruled that the plaintiffs did not have standing to bring those claims because they did not demonstrate that Denver would not go forward with the P2PH project even if the court ordered CDOT to stop funding and supporting the P2PH project.
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Key Holdings
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Litigation Procedure
Standing. To have standing to bring a claim, a plaintiff must demonstrate that it will suffer an actual injury caused by the defendant’s actions, and that the injury would be redressed by a favorable decision. In this case, the plaintiffs challenged FHWA’a approval of the PCL alternative for the I-70 project, but they claimed they would be harmed only by the City’s implementation of the P3PH stormwater project. The court’s opinion turned on the issue of whether a court order halting the I-70 project would prevent Denver from continuing with the P2PH project. After holding an evidentiary hearing, the court concluded that Denver would likely continue carrying out the P2PH project even if the I-70 project did not go forward and CDOT withdrew its funding and support for the P2PH project. Therefore, the court determined that the plaintiffs’ asserted injuries regarding the P2PH project would not be redressed by a favorable ruling in their challenge to FHWA’s approval of the I-70 project. On that basis, the court dismissed the plaintiffs’ NEPA and Section 4(f) claims for lack of standing.
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File Attachments
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Zeppelin v. FHWA - 11-09-2018.pdf
(229 kb)
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