Statutory Interpretation – NEPA

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7^th Circuit Court of Appeals

Case Name: Highway J. Citizens Group, Waukesha County Environmental Action League, et al. v. United States Department of Transportation, et al.

Case No.: 17-1036

Officials: EASTERBROOK, ROVNER, and HAMILTON, Circuit Judges.

Focus: Statutory Interpretation – NEPA

Wisconsin proposes to renovate a 7.5-mile stretch of Highway 164 (formerly known as Highway J), a two-lane road in southern Washington County. It was built in the 1960s with 5 to 6.5 inches of asphalt, a pavement expected to last 22 years, and resurfaced in 2000 with another 2.5 to 3.5 inches, expected to extend the road’s life by 12 years. The new project entails repaving, reconstruction near hill crests where drivers cannot see approaching traffic, widening the lanes, making the shoulders flatter and two feet wider, improving sight lines, updating guardrails, adding rumble strips, and introducing turn or bypass lanes at some intersections. A 141-page environmental report prepared between 2013 and 2015 concluded that the renovation would not cause any significant environmental effects but would reduce the accident and injury rate. (Accidents are 63% more likely, per vehicle mile traveled, on this stretch than on Wisconsin’s other rural highways, and crashes that occur are 45% more likely to produce an injury.)

One local resident and two groups filed this suit, contending that more study is essential. After denying a motion for a preliminary injunction, see 2016 U.S. Dist. LEXIS 132388 (E.D. Wis. Sept. 27, 2016), the district judge read into the record an oral opinion granting summary judgment for the defendants. The judge concluded that the environmental report shows that the project fits the criteria for categorical exclusion from the need for a more comprehensive study. Plain tiffs have appealed. They want Wisconsin to abandon the project, contending that reducing the speed limit to 45 miles per hour would do enough to curtail accidents. But this suit concerns environmental effects, not the project’s wisdom. Plaintiffs offer two principal arguments: that the Agency’s failure to write a decision separate from the report shows that it has yet to give the project independent consideration, and that the report does not analyze cumulative effects of multiple highway-renovation projects.

The underlying statute (the National Environmental Policy Act or NEPA) calls for an environmental impact statement to accompany recommendations or reports on proposals for “major Federal actions significantly affecting the quality of the human environment”. 42 U.S.C. §4332(2)(C). Renovating 7.5 miles of an existing two-lane road does not stand out as a major cause of a significant effect. Regulation 1508.4 establishes a “categorical exclusion” of projects that are not “major”. The Administration believes that renovating existing roads generally does “not individually or cumulatively have a significant effect on the human environment”. The point of the years-long, 141-page study was not to question the validity of the regulations but to find out whether this renovation, in particular, needs a thorough evaluation because it would cause “[s]ignificant environmental impacts” (§771.117(b)(1)) or exceed “the constraints in paragraph (e) of this section” (§771.117(d)(13)).

As for the argument that the 141-page report didn’t analyze the cumulative effects of many different highway-repair projects: that’s true but irrelevant. The Administration must analyze cumulative effects when deciding whether the category (renovating highways) comes within the exclusion. That’s what the first sentence of §1508.4 says. But once a categorical decision has been made—and plaintiffs do not contest the Administration’s finding in §771.117 that road renovations cumulatively do not amount to major federal actions with significant environmental effects—the remaining question is whether a particular project flunks the constraints of §771.117(e) or otherwise has “[s]ignificant environmental impacts” (§771.117(b)(1)). That’s what this report investigated. As we’ve said already, judicial review is deferential, and we lack a compelling basis to upset the Administration’s finding that the categorical exclusion of §1508.4 and §771.117 applies to this project. See also Sierra Club v. United States Forest Service, 828 F.3d 402, 410–11 (6th Cir. 2016) (an agency need not analyze cumulative effects when the categorical exclusion itself considers them). Trying to include all cumulative effects of every project when analyzing any project is not feasible. And Kleppe v. Sierra Club, 427 U.S. 390, 409–15 (1976), holds that the exercise is not necessary. The Justices wrote that, although cumulative effects matter, the agency has discretion to consider when and how they are considered. It is not necessary to look at the Big Picture when evaluating every proposed project, the Court held. They said that about a huge project entailing the development of millions of coal-rich acres in the Powder River Basin; the point is no less true about a road project in Wisconsin that uses 38 acres of land and adds about one net acre of wetlands.

One final subject calls for brief mention. Section 771.117(b)(2) requires analysis when a project occasions “[s]ubstantial controversy on environmental grounds”. Plaintiffs say that their own opposition to the project, coupled with letters from several other organizations, adds up to “[s]ubstantial controversy on environmental grounds”. The Administration did not act arbitrarily, however, in deciding that the environmental report was itself an adequate response to that controversy. Section 771.117(b) does not require an environmental impact statement whenever someone opposes a project; it requires only “appropriate environmental studies”. The lengthy report is such a study.

Affirmed

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.