Coal. for the Advancement of Reg'l Transp. v. Fed. Highway Admin.

Citation959 F.Supp.2d 982
Decision Date17 July 2013
Docket NumberCivil Action No. 3:10–CV–7–H.
PartiesCOALITION FOR the ADVANCEMENT OF REGIONAL TRANSPORTATION, Plaintiff v. FEDERAL HIGHWAY ADMINISTRATION, et al., Defendants.
CourtU.S. District Court — Western District of Kentucky

OPINION TEXT STARTS HERE

Elizabeth Merritt, The National Trust for Historic Preservation, Andrea C. Ferster, Washington, DC, Robert W. Griffith, Stites & Harbison, PLLC, Clarence H. Hixson, Louisville, KY, for Plaintiff.

Pamela S. West, U.S. Department of Justice–Environment & Natural Resources, Joseph N. Watson, U.S. Department of Justice, Washington, DC, Brady Miller, U.S. Attorney Office, Louisville, KY, Dustin J. Maghamfar, U.S. Department of Justice–Environment & Natural Resources, for Defendants.

MEMORANDUM OPINION AND ORDER

JOHN G. HEYBURN, District Judge.

The Court now considers a variety of motions concerning the Louisville–SouthernIndiana Ohio River Bridges Project (the “Project”). In general, Defendants, the Federal Highway Administration (FHA), the Kentucky Transportation Cabinet (“Kentucky”), the Indiana Department of Transportation (“Indiana”, and collectively with Kentucky, the “States”) and various individuals associated with each,1 seek dismissal of the remaining legal challenges associated with the Project.

Plaintiff, Coalition for the Advancement of Regional Transportation (CART), 2 maintains twenty separate claims against Defendants. CART is a volunteer-member, tax exempt § 501(c)(3) organization that promotes modern transit planning, especially encouraging the introduction of light rail to urban transit systems. Though CART asserts a number of claims arguing that Defendants failed to comply with federal statutory mandates, and otherwise abused their discretion in the planning and implementation of the Project, its general contention is more normative. It believes that vehicular traffic will decline in future years, making the Project both unnecessary and in all likelihood, unable to obtain adequate funding to service construction loans taken out to finance the Project. CART maintains that other alternatives, even abandoning the Project altogether, would better serve the community.

The Court's Memorandum Opinion is based upon the extensive Administrative Record that details all that has occurred in the past twenty years leading up to the ultimate selection of the Project's design. In the course of this Opinion, the Court will not address every issue raised in the media and elsewhere concerning the Project, nor will the Court speculate about future issues or concerns. It will, however, address each of CART's general and specific claims. Though reasonable minds could certainly disagree about the necessity of the Project and various decisions made in furtherance of it, it is not the role of the Court to endorse one opinion over the other. Rather, the Court has been careful to distinguish policy disagreements from Defendants' obligations to follow certain statutory procedures and refrain from taking actions found to be arbitrary and capricious.

I.

Currently, three bridges provide transit across the Ohio River between Jefferson County in Kentucky and Clark County in Southern Indiana. Beginning with the western-most bridge, the Sherman Minton Bridge carries I–64 traffic between West Louisville and New Albany, Indiana. About four miles to the east is the downtown George Rogers Clark Memorial Bridge, which carries U.S. 31 traffic across the Ohio River. Finally, less than half a mile to the east of the Clark Memorial Bridge lies the John F. Kennedy Memorial Bridge (“Kennedy Bridge”), which carries I–65 traffic between downtown Louisville and Jeffersonville, Indiana.

Over the course of a decade, Defendants investigated cross-river traffic issues and the possibility of alleviating problems by building a fourth bridge in East Louisville and reconstructing the existing transportation infrastructure. This culminated in the Project, which is a roughly $2.6 billion construction and transportation management program designed to improve mobility across the Ohio River between Louisville and Southern Indiana. The Project addresses current cross-river traffic congestion and safety needs, provides better navigability within the existing transportation system, and improves cross-river mobility, especially in light of existing and anticipated population and employment patterns in the region. In its current iteration, the Project includes the following five major elements:

Downtown Crossing: Defendants will reconstruct, expand, and reconfigure the Kennedy Bridge. The existing but reconstructed Kennedy Bridge will carry six lanes of southbound I–65 traffic. Defendants will construct a new bridge parallel to and immediately upstream of the Kennedy Bridge, and this new span will carry six lanes of northbound I–65 traffic. Defendants will also reconstruct the downtown Louisville I–65/I–64/I–71 Kennedy Interchange (“Kennedy Interchange”) and approach roadways in Jeffersonville, Indiana.

East End Crossing: Defendants will construct a new bridge connecting KY 841 (Gene Snyder Freeway) in eastern Jefferson County, Kentucky, with S.R. 265 (Lee Hamilton Highway) in eastern Clark County, Indiana. The East End Crossing will not be part of the Interstate system.

Tolling: Defendants will place electronic tolling facilities on the expanded and reconstructed Downtown Crossing (both directions) and the new East End Crossing to assist in financing the Project.

Transportation Management: Defendants will provide enhanced funding for bus service.

Mitigation Commitments: Defendants will plan and implement various mitigation strategies aimed at ameliorating potential impacts on the natural and human environment resulting from the Project's implementation.

Since the Project's conception, Defendants have undergone various phases of planning and implementation. For purposes of this Memorandum Opinion, the Court will briefly summarize the pertinent events bearing on the Court's decision.

A.

From 1991 to 1994, Kentucky and Indiana sponsored the Metropolitan Louisville Ohio River Bridge Study, which examined four potential cross-river bridge locations. The study recommended further evaluation of two bridge locations in the “Near East” (near the terminus of I–264) and in the “Far East” (near the termini of KY 841 and S.R. 265). In 1995, based on that preliminary study, the Kentuckiana Regional Planning and Development Agency initiated the Ohio River Major Investment Study (“ORMIS”). That study evaluated a wide range of potential transportation schemes to improve cross-river mobility. Ultimately, ORMIS recommended a two-bridge solution, which entailedthe construction of a downtown bridge adjacent to the Kennedy Bridge, reconstruction of the Kennedy Interchange, and construction of a bridge in the Far East.

To pursue this recommendation, the States sought federal assistance. To receive federal funding for transportation projects, the FHA must verify that applicants comply with the National Environmental Protection Act (“NEPA”). 3 NEPA prescribes a process that federal agencies must follow before taking any action that significantly affects the environment. Most of the claims in CART's complaint concern the NEPA-mandated process. Therefore, the Court finds that this process warrants considerable discussion.

The FHA initiates the NEPA process by publishing a Notice of Intent to prepare an environmental impact statement (“EIS”). 40 C.F.R. § 1508.22. Following the issuance of the Notice of Intent, the agency prepares a Draft EIS. 40 C.F.R. § 1502.9. The EIS must provide a “full and fair discussion of significant environmental impacts and shall inform decision makers and the public of the reasonable alternatives which would avoid or minimize adverse impacts or enhance the quality of the human environment.” 40 C.F.R. § 1502.1. Alternative actions, including a No Action Alternative required to be considered by 40 C.F.R. § 1502.13(d), are measured against the Purpose and Need Statement, which explains why the agency is proposing to spend federal money on an action that potentially results in significant environmental impacts. 40 C.F.R. § 1502.13 (“The statement shall briefly specify the underlying purpose and need to which the agency is responding in proposing the alternatives including the proposed action.”).

Once the agency publishes the Draft EIS, the public may submit comments in response. Next, the agency must issue a Final EIS, which accounts for public comments, addresses opposing views not already discussed in the Draft EIS, and incorporates any further information necessary to justify implementation of the proposed project. 40 C.F.R. § 1502.9. Finally, the FHA will issue a Record of Decision (“ROD”) approving the final proposed action prior to its implementation. Occasionally, the FHA must prepare a supplemental EIS to respond to “substantial changes in the proposed action that are relevant to environmental concerns” or “significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.” Id. If the agency issues a supplemental EIS after the ROD, the agency must prepare a revised ROD. 23 C.F.R. § 771.127(b).

B.

On March 27, 1998, the FHA published the Notice of Intent to prepare an EIS based on the ORMIS recommendation. Next, in preparing the Draft EIS, Defendantsevaluated the region's transportations issues to compose the Project's Purpose and Need Statement. According to CART, the parties generated the Purpose and Need Statement simply to bring the preexisting bridge plan to fruition, and therefore, Defendants failed to consider the merits of other needed transportation projects. Defendants outline a much more substantive and collaborative process for developing the Purpose and Need Statement. Defendants then identified and analyzed a range of alternatives that could possibly meet the Project's objectives.

The FHA published the Draft...

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