By: Blair M. Gardner
The U.S. District Court in Indianapolis closed a chapter in a long-running environmental case on January 15 when it refused to reconsider its grant of summary judgment issued last March in favor of the Federal Highway Administration and the Indiana Department of Transportation’s approval of the I–69 expansion project. The expansion of the existing I-69 across southwest Indiana is intended to create a highway connecting Evansville to Indianapolis. This endeavor, which has been called the largest contiguous construction project in the United States, was first considered by the state in 1944. Renewed interest in an Evansville–to–Indianapolis highway was prompted by two Acts of Congress in the 1990s. The “Intermodal Surface Transportation Act of 1991” designated a potential new route from Indianapolis to Memphis, Tennessee, via Evansville as a “high priority corridor” for future development. As part of the “Transportation Equity Act for the 21st Century,” Congress in 1998 designated this corridor as an extension of I–69 southward from Indianapolis.
In preparation for various phases of the project, the federal and state agencies analyzed possible environmental effects of the project as required by the National Environmental Policy Act (NEPA) in the “tiering” process described in 40 C.F.R. § 1502.20. In Tier 1, the agencies analyzed the project’s potential “overarching effects” and prepared a record of decision (ROD). In Tier 2, they analyzed each of the project’s six distinct segments. Each individual section received its own environmental impact statement (EIS) and ROD.
Plaintiffs challenged Tier 1 of this process, as well as sections 3 and 4 of Tier 2 in an action filed in August 2011, seeking declaratory and injunctive relief, as well as reimbursement of reasonable attorneys’ fees and costs. They alleged that agencies violated the Administrative Procedures Act (APA), 5 U.S.C. §§ 701–06, and NEPA, 42 U.S.C. § 4332 et seq. In their nine-count complaint, the Plaintiffs described several actions as contrary to the laws of the United States: conducting various activities before a final EIS and ROD were issued for section 4 of the Project; failing to prepare a supplemental EIS to reflect “new” and “substantial” information on air pollution, bridges, and archaeological sites; conducting several Project-related activities in bad faith; and converting unspecified artifacts on Plaintiffs’ land. The Plaintiffs alleged that harm will inure, inter alia, to the region’s ecosystems, natural resources, environmental quality, endangered species (namely, the Indiana Bat and Cerulean Warbler), and the habitats of various animal species. The citizens’ groups alleged generally that the I–69 project will adversely impact its members’ “recreational, aesthetic and educational interests.”
A preliminary injunction seeking to halt further expenditures and design work until a new EIS was prepared was denied in 2012. Summary judgment was granted on all remaining claims on March 31, 2014. The recent decision of the U.S. District Court in Indianapolis simply reaffirms the grant of summary judgment granted last year. The decision now allows the construction of section 4 between Bloomington and the existing I-69 terminus in Greene County, Indiana. The district court’s dismissal of the action ends litigation over the Evansville to Bloomington portion of the interstate. The remaining segment to I-465 outside of Indianapolis is expected to follow existing Indiana State Route 37. Whether environmental groups will seek to challenge what is now essentially the improvement of an existing highway remains open.
This article was authored by Blair M. Gardner, Jackson Kelly PLLC. For more information on the author, click here.