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1000 Friends of Wisconsin Inc v. United States Department of Transportation

United States District Court, E.D. Wisconsin

April 29, 2016

1000 FRIENDS OF WISCONSIN, INC., Plaintiff,
v.
UNITED STATES DEPARTMENT OF TRANSPORTATION, et al., Defendants.

DECISION AND ORDER

LYNN ADELMAN District Judge.

The plaintiff in this case, 1000 Friends of Wisconsin, Inc., brings claims under the National Environmental Policy Act (“NEPA”) and the Administrative Procedure Act, challenging a decision of the Federal Highway Administration and the Wisconsin Department of Transportation (“WisDOT”), to expand to four lanes a 19-mile segment of Wisconsin State Highway 23. In a prior decision addressing the merits of the plaintiff’s claims, I concluded that the defendants’ analysis of reasonable alternatives to the 4-lane expansion was deficient because the analysis rested on traffic forecasts that the agencies had failed to fully explain. See May 22, 2015 Dec. and Order, ECF No. 61 I vacated the record of decision approving the expansion project and remanded the matter to the agency for further proceedings. On remand, the agencies prepared a “revised technical memorandum, ” in which they further explained how they arrived at the traffic forecasts that appear in the environmental impact statement for the project. See ECF No. 70-1. The agencies now move to reinstate the record of decision and for judgment in their favor. The plaintiff opposes the motion.

I. NEPA AND APA STANDARD OF REVIEW

NEPA “declares a broad national commitment to protecting and promoting environmental quality.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 348 (1989). It has been described as a “procedural” or “action-forcing” statute that does not “mandate particular results” but instead requires agencies to study and describe the environmental consequences of their proposed actions. Id. at 348-51; Vermont Yankee Nuclear Power Corp. v. Nat. Res. Defense Council, 435 U.S. 519, 558 (1978). Thus, under NEPA, if an agency has adequately identified and evaluated the environmental effects of its proposed action, it is permitted to take that action even if it is expected to be environmentally costly. Robertson, 490 U.S. at 350. Put differently, “NEPA merely prohibits uninformed-rather than unwise-agency action.” Id. at 351.

NEPA requires agencies to prepare an environmental impact statement for “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). This impact statement is “a detailed analysis and study conducted to determine if, or the extent to which, a particular agency action will impact the environment.” Highway J Citizens Group v. Minetta, 349 F.3d 938, 953 (7th Cir. 2003). Requiring an agency to prepare an impact statement serves NEPA’s action-forcing purpose in two respects. Robertson, 490 U.S. at 349. First, “[i]t ensures that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts.” Id. Second, it “guarantees that the relevant information will be made available to the larger audience that may also play a role in both the decisionmaking process and the implementation of that decision.” Id. Thus, in the impact statement, the agency must “articulate why [it has] settled upon a particular plan and what environmental harms (or benefits) [its] choice entails.” Simmons v. U.S. Army Corps of Eng’rs, 120 F.3d 664, 666 (7th Cir. 1997). The impact statement must show that agency officials have “[thought] through the consequences of-and alternatives to-their contemplated acts, ” and must ensure that “citizens get a chance to hear and consider the rationales the officials offer.” Id.

Judicial review of an agency’s compliance with NEPA occurs under the Administrative Procedure Act, which instructs courts to set aside agency action only if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” 5 U.S.C. § 706(2)(A); Highway J Citizens Group, 349 F.3d at 952.

II. DISCUSSION

The deficiencies I identified in my prior decision concerned the impact statement’s discussion of reasonable alternatives. Under NEPA, an impact statement must discuss alternatives to a proposed action. 42 U.S.C. § 4332(2)(C)(iii). The NEPA regulations specify that an agency preparing an impact statement must “[r]igorously explore and objectively evaluate all reasonable alternatives, and for alternatives which were eliminated from detailed study, briefly discuss the reasons for their having been eliminated.” 40 C.F.R. § 1502.14(a).

In the present case, the agencies’ evaluation of reasonable alternatives was based, in part, on traffic projections through the year 2035, which WisDOT prepared in 2012. R. 21414-19. The projections are expressed in terms of daily traffic volumes for each of eight segments of Highway 23, and there are four projections for each segment-one for each reasonable alternative-along with the actual traffic counts measured in 2012:

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R. 21414. The plaintiff contends that these traffic projections are flawed, in that they overestimate the amount of traffic that can be expected on Highway 23 through the year 2035. The plaintiff contends that if accurate traffic projections were used, then alternatives to expanding the highway to four lanes, such as adding passing lanes to the existing two-lane highway, would appear more attractive.

In my prior decision, I did not find that the traffic projections were flawed. Rather, I determined that I could not decide whether the projections were flawed because WisDOT had not fully explained how it applied its methodology. See Dec. and Order at 9-14. I also determined that I could not tell whether the projections were flawed because WisDOT had not explained how recently updated demographic data from the Wisconsin Department of Administration might affect the projections. Id. at 14-17. The revised technical memorandum attempts to explain these issues. Below, I consider whether the technical memorandum cures the deficiencies in the impact statement.

A. Application of Traffic Forecasting Methodology

The methodology that WisDOT purported to use in projecting traffic volumes is explained in an appendix to the impact statement. See R. 21923-44 (Appendix LS-A). In this appendix, WisDOT states that traffic forecasts “are prepared and approved centrally to assure that a consistent methodology is utilized for all forecasts in Wisconsin.” R. 21938. Under this methodology, WisDOT will use two forecasting tools, provided that the forecast is for an area in which it is possible to use both tools. R. 21938-39. Highway 23 is located in an area in which it is possible to use both tools. The tools are known as the Traffic Analysis Forecasting Information System (“TAFIS”) and the Northeast Region Travel Demand Model (“TDM”). Id. TAFIS is an automated procedure and computer program that uses historical traffic count information to project future traffic through use of regression analysis. R. 21939; see also ECF No. 70-1 at 2. TDM is a model ...


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