Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.

Help support the publication of case reports on MoreLaw

Date: 06-05-2018

Case Style:

Highway J Citizens v. United States Department of Transportation, et al.

Eastern District of Wisconsin Federal Courthouse - Milwaukee, Wisconsin

Case Number: 17-1036

Judge: Easterbrook

Court: United States Court of Appeals for the Seventh Circuit on appeal from the Eastern District of Wisconsin (Milwaukee County)

Plaintiff's Attorney: Joseph Cincotta, Adam Hess, Doressia Hutton, Howard Learner and Dennis Grzezinski

Defendant's Attorney: Pamela S West and Daniel R Dertke for Federal Highway Administration


Kathleen M Batha, Peter S Rank and Abigail CS Potts for Mark Gottlieb

Description: 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
2 No. 17-1036
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.)
The Federal Highway Administration approved the environmental
report and federal funding in 2015, finding that it
is unnecessary to prepare an environmental impact statement.
See 40 C.F.R. §1508.4 (neither an environmental impact
statement nor an “environmental assessment,” a sort of
junior-varsity environmental impact statement, is needed for
projects that “do not individually or cumulatively have a
significant effect on the human environment”). See also 23
C.F.R. §771.117(c)(26) (highway-renovation projects come
within the §1508.4 exclusion, with qualifications),
§771.117(d)(13) (same).
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. PlainNo.
17-1036 3
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”. Here is the language:
Categorical exclusion means a category of actions which do not
individually or cumulatively have a significant effect on the human
environment and which have been found to have no such
effect in procedures adopted by a Federal agency in implementation
of these regulations (§1507.3) and for which, therefore, neither
an environmental assessment nor an environmental impact
statement is required. An agency may decide in its procedures or
otherwise, to prepare environmental assessments for the reasons
stated in §1508.9 even though it is not required to do so. Any
procedures under this section shall provide for extraordinary
circumstances in which a normally excluded action may have a
significant environmental effect.
Section 1508.4, promulgated by the Council on Environmental
Quality, covers all federal agencies. The Federal Highway
Administration implemented it through 23 C.F.R. §771.117.
4 No. 17-1036
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)).
The report concludes that the renovation of Highway 164
would not have a significant environmental effect. After the
work is done it will be the same road, in the same place, with
the same two lanes, and a little wider so that larger vehicles
can safely use the shoulders (and are less likely to hit each
other if they veer from the middle of a lane). Widening the
road and improving sight lines by clearing some obstructions
at roadside will use 38 acres of land in total (or 5 acres
per mile of road). Of those 38 acres, 1.655 are wetlands,
which will be filled; that’s bad for some animals and plants,
but the state will create 2.825 acres of new wetlands at another
site. No threatened or endangered species would be
adversely affected. The area through which the highway
runs would remain hilly and forested. All in all, the report
concluded, not much bad could happen, while drivers and
their passengers would become safer. The report added that
reducing the speed limit on this stretch of road might endanger
drivers, because although some would obey the lower
limit many would not, and data show that a variance in
different vehicles’ speeds is a major cause of accidents.
Plaintiffs tell us that, by signing off without writing a
separate explanation, the Administration showed that it had
No. 17-1036 5
not taken this matter seriously. Yet neither a statute nor a
rule requires the agency to write its own analysis. (Approving
federal funding for a highway is neither adjudication nor
rulemaking subject to the Administrative Procedure Act’s
requirements under 5 U.S.C. §§ 553, 554.) The principal questions
the Administration had to decide were whether the
project will have “[s]ignificant environmental impacts”
(§771.117(b)(1)) or flunk the analysis under §771.117(d)(13).
It was not necessary to add to what the report said about
those subjects. And as judicial review of the agency’s finding
is deferential, see Marsh v. Oregon Natural Resources Council,
490 U.S. 360, 375–77 (1989); Sierra Club v. EPA, 774 F.3d 383,
393 (7th Cir. 2014), its conclusion must be respected.
It would be unwarranted to infer from the lack of a separate
writing that the subject has been slighted. District judges
and magistrate judges frequently sign search warrants without
writing opinions, but no one should infer that judges are
automata who sign whatever is placed in front of them. They
read and think but often find that the papers speak for themselves.
Or consider this court. The vast majority of decisions
are issued by three-judge panels, yet only one judge signs
the opinion; the other two join silently. (In the United Kingdom,
by contrast, every judge writes in many cases. Seriatim
opinions were common in the United States, too, until John
Marshall became Chief Justice.) Silence by a majority of the
judges does not imply inattention, however. To the contrary,
all members of the court read the materials carefully and ensure
that each decision is sound before they approve it. Just
so with the Federal Highway Administration. The Administration’s
staff was active in preparing the report, commenting
on drafts and making suggestions. Only when the whole
6 No. 17-1036
process was complete, to its satisfaction, did the Administration
sign off. No statute or rule requires more.
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
No. 17-1036 7
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.

Outcome: AFFIRMED

Plaintiff's Experts:

Defendant's Experts:

Comments:



Find a Lawyer

Subject:
City:
State:
 

Find a Case

Subject:
County:
State: