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Federal court says highway sponsors must first study transit, impacts on suburban sprawl

Kaid Benfield

Posted June 5, 2013

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  Milwaukee's Zoo Interchange (via Google Earth)

It is just an interim ruling, but it is potentially an important one:  In a suit brought by inner-city, minority plaintiffs, the US District Court in Milwaukee has indicated that the Federal Highway Administration (FHWA) and Wisconsin Department of Transportation (WisDOT) cannot enlarge a major urban freeway connection without further study of the project's impacts on transit-dependent populations and on regional suburban sprawl.  For now, the case is headed to mediation; but the court's ruling on legal issues in the case, as articulated in an opinion signed by federal judge Lynn Adelman, is potentially significant to other highway-expansion controversies with similar circumstances.

First, the court found that, before going forward with plans for construction, the agencies must first study the impact of “continuing to expand highway capacity in the region while transit capacity declines.”  Second, the agencies also must examine the potential regional effects of highway expansion on suburban sprawl.  The court rejected the agencies’ argument that they need only study the impacts in the specific area where the highway expansion was taking place, finding that it would defeat the “action-forcing” intent of the National Environmental Policy Act (NEPA) if a piecemeal approach to highway projects and analysis allowed cumulative regional impacts to escape scrutiny.

The project in question would rebuild highways leading to and from a major freeway interchange west of downtown Milwaukee (the intersection of Interstates 94 and 894 with US route 45, called “the Zoo Interchange” because of its proximity to Milwaukee’s public zoo), as well as the interchange itself.  approaching the Zoo Interchange (by: plebeian regime, creative commons)In particular, FHWA and WisDOT seek to expand road capacity from six to eight lanes in one direction and, in the other, to install extra-wide shoulders that could potentially be used for additional capacity in the future.  Four interchange ramps would be doubled in size, and surface streets would also be modified to accommodate the new configuration.  The $1.7 billion construction undertaking, stretching 5.5 miles north-south, and 3.5 miles east-west, is said to be the largest single transportation project in Wisconsin history.

The suit was brought by Milwaukee Inner-City Congregations Allied for Hope and the Black Health Coalition of Wisconsin.  The two organizations argued that the highway expansion plan failed to include any public transportation, would impair air quality, and would contribute to suburban sprawl.  NEPA requires that major federal projects await full study of their potential impacts and alternative courses of action before going forward.  The court’s ruling, issued last month, came in response to the plaintiffs’ request for a preliminary injunction stopping work on the project until the required analysis is completed.

The plaintiffs did not challenge the reconstruction and safety redesign of the Zoo Interchange, but only its capacity-expanding elements.  They argued that NEPA’s mandate that the agencies prepare a thorough Environmental Impact Statement on the project required FHWA and WisDOT to do more to discuss the potential cumulative impacts of highway expansion when viewed together with other highway projects in the vicinity and with a decline in transit service.  (Contrary to recent experience, the EIS assumed that transit would expand, not decline, because expansion had been recommended in a nonbinding recommendation of the region’s metropolitan planning organization.)

The court agreed with the plaintiffs.  The entire opinion is worth reading, but here are some excerpts, starting with the agencies’ assumptions regarding transit:

poster protesting transit service decline, 2009 (by: Bill Sell, creative commons)“[The agencies] have an obligation to acknowledge that the transit components of the Year 2035 plan are not being implemented and to identify the environmental harms that might materialize if transit continues to languish but the agencies continue to expand highway capacity in the region.  Of course, even after the agencies identify those harms, the responsible decisionmakers will remain free to prioritize highway expansion over transit expansion, but at least the decision to do so will have been based on a full consideration of the environmental costs.” [Citations omitted.]

The court elaborated that the agencies have a duty to examine the effects of this pattern on the transit-dependent population:

“They must examine the potential social and economic impact on the transit-dependent of continuing to expand highway capacity in the region while transit capacity declines.  If after conducting this examination the agencies determine that their continuing to expand highway capacity while transit capacity declines will have negative effects, the agencies must consider identifying and assessing an alternative to the project that might avoid, minimize, or mitigate those negative effects.  

Such an alternative might include incorporating some form of transit into the project, such as rapid bus service between the City of Milwaukee and Waukesha County.  Such bus service might offset the social and economic harm to inner city communities that might result if the continued expansion of highway capacity facilitates the movement of jobs and other services away from those in the inner city who do not have access to automobiles.”  [Citations omitted.]

Later in the opinion, the court was emphatic that the agencies must look at the effects of the highway-first transportation practices on the metropolitan region, and specifically at the possibility that highway expansion enables suburban sprawl.  It is not sufficient to examine only the part of the city where the Zoo Interchange is located:

“[T]he EIS contains no discussion of the potential sprawl-inducing effect of highway construction on the region as a whole.  Milwaukee traffic (by: modernowl, creative commons)Indeed, it appears that no one has studied the overall environmental effect on the region of implementing all of the highway-expansion projects in SEWRPC’s 2035 plan.  Rather, it seems that the agencies which implement specific projects study only the effects that could be expected to occur in the immediate vicinity of the project under consideration.

“By proceeding in this fashion, the agencies run the risk of overlooking an environmental effect that emerges on the regional level.  For example, in the present case, by focusing solely on natural resources in the immediate vicinity of the Zoo Interchange, the agencies may overlook the fact that by facilitating automobile travel to suburban areas (i.e., by facilitating suburban sprawl), the Zoo Interchange project and other highway projects may be contributing to the destruction of natural resources in various other parts of the region.”

“Again, the Zoo Interchange project by itself might not have an appreciable effect on the region as a whole, but when that project is combined with SEWRPC’s other recommended highway projects, a regional environmental impact may emerge.”

The court is essentially admonishing the agencies for their failure to examine fully the impacts of the road-building contemplated in the regional plan back when the plan was written.  Since the issue was not sufficiently addressed then, it must be addressed now. 

While I agree with the court’s reasoning, the facts of this case illustrate just what a mess our multi-jurisdiction, multi-agency metropolitan regions are when it comes to issues of governance that affect a region as a whole.  FHWA and WisDOT are not themselves responsible for the provision of transit service, so they made assumptions (self-serving and contrary to experience) about what transit service would be provided.  The metropolitan planning organization makes general long-range planning recommendations, but it does not implement them; accordingly, some portions get implemented and others are ignored.  No agency seems to believe it is responsible for studying the regional impacts of cumulative transportation actions. 

These problems are ubiquitous across the country, though planning law in California is at least moving in the right direction when it comes to making transportation and land use planning both coordinated and meaningful.  Portland has an elected regional government responsible for land use and transportation.  But Milwaukee’s situation is far more common:  one agency does this, another does that, and they all plead helplessness when it comes to the big picture.

Kudos to the court for stepping in and ensuring that someone follow the law and common-sense practice in cases like this.  If not settled in mediation, the case is far from over, since there remains an evidentiary hearing on the motion for preliminary injunction and then at least two more rulings by the district court, after which there is always the possibility of appeal.  Meanwhile, court-supervised mediation is scheduled to begin on June 13.  Read the opinion here.

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Kaid Benfield writes about community, development, and the environment on Switchboard and in the national media.  For more posts, see his blog's home page.  Please also visit NRDC’s sustainable communities video channels.

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Barbara McCannJun 5 2013 12:54 PM

Thanks for highlighting this, Kaid. The court has correctly identified some of the most frustrating gaps in transportation planning... let's see if their directives can overcome the structural issues you summarize so clearly.

Brice MarymanJun 5 2013 01:14 PM

Kaid, do you have any sense of whether national transportation/environmental/smart growth/social justice groups are evaluating legal strategies to assist in this case and/or move it through the appeals process? E.g., some cases you don't want to settle because they offer a compelling opportunity to set federal precedent. Is it one that our community might want to advance to SCOTUS?

Kaid @ NRDCJun 5 2013 01:29 PM

Brice, I think a blog comment isn't the greatest place for me to discuss legal strategy. :) I will say that the case won't be ripe for further action for some time, and it's generally the losing party that brings an appeal.

Brice MarymanJun 6 2013 01:11 PM

A fair point. I will read between the lines and surmise that, "Yes: thoughtful attention is being paid."

PaulJun 6 2013 03:32 PM

Wow, we're finally getting to the cumulative and longitudinal impacts! How meaningful the implications of this opinion would have been for the 99 Grand Parkway segment E review in Harris County, or even more so for the Keystone XL review, likewise certified to find no significant impact on the human environment.

Perhaps we might have seen development of the Grand Parkway, the farthest-out ring road around H-town, harnessed to hasten potential investment in Houston's lagging light and commuter rail systems.

And if the Keystone review had treated the XL pipeline, recent projects to upgrade (downgrade?) Gulf Coast refineries with billions of dollars worth of heavy oil crackers, the planning for Super-Panamax tanker fleets, expansions of both the Panama Canal and the Houston Ship Channel, the buildout of the Chinese freeway system and fracturing of tight oil formations in reality as one large geographically and functionally related systemic change, there would be no doubt about President Obama's refusal to allow the death knell for climate as we knew it to ring forth on his watch.

David CrossleyJun 6 2013 04:13 PM

I'm surprised, and pleased, to learn that there's any basis in law for considering the effects of a transportation project in producing sprawl. Texas courts seem to say "Because the project is going to produce a lot of sprawl it is therefore ordered to proceed."

Peter BuchwaldJun 7 2013 05:10 PM

Earlier this week, the St. Lucie Transportation Planning Organization (TPO), an MPO based in Port St. Lucie, Florida, took the somewhat courageous action of removing from its Transportation Improvement Program (TIP) a project to widen I-95 from 6 to 8 lanes because the Project Development & Environmental (PD&E) Study was not recommending any public transportation improvements, not even a park & ride lot that was determined to be needed, as part of the widening. Until the TPO took this action, the design of the project was moving forward at an anticipated cost of $9 million! It is comforting to know that the TPO Board is not alone and now has an example or legal precedent should the Florida DOT continue to ignore the region’s transportation needs.

Jim VanceJun 10 2013 09:03 PM

It's about time that a court somewhere had the stones to recognize a longstanding type of 'bait-and-switch' practice followed by every State DOT since inception of the EIS requirements of NEPA where the systemic effect on induced-development from deliberately flawed incremental highway project assessments is concerned. Once approved in a regional long-range plan without a rigorous integrated or technically honest and accurate forecast of those effects on land development from proposed comprehensive system components, the implicit traffic forecasts are woefully underestimated in scale and timeframe so all subsequent project design and EIS work is compromised by the innate flaw.

This is actually by intentional design, as that narrowly-defined scope and time horizon embedded within the official public policy decision process used as a model throughout the US has consistently produced continued justification for the expansive postwar highway program's development in every metropolitan area while repeatedly supplying the local institutional insiders within development and construction industries with numerous opportunities to acquire property well in advance of new-alignment road projects whose subsequent syndication before, during and well after the actual construction has yielded enormous profits. Those profits are then recycled and laundered in a high-level "game" of kickbacks into charitable and political contributions designed to support favorable candidates and local infrastructure bond issues to reinforce and further enhance influence of the key participants for the next round in that behind-the-scenes game.

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