Conservation Law Foundation v. Fed. Highway Admin.

Citation630 F.Supp.2d 183,2007 DNH 106
Decision Date30 August 2007
Docket NumberCase No. 06-cv-45-PB.
PartiesCONSERVATION LAW FOUNDATION v. FEDERAL HIGHWAY ADMINISTRATION and New Hampshire Department of Transportation.
CourtU.S. District Court — District of New Hampshire

PAUL BARBADORO, District Judge.

Nearly twenty years ago, the New Hampshire Department of Transportation ("NHDOT") began to evaluate proposals to address traffic congestion and safety concerns associated with the 19.8-mile section of Interstate 93 ("I-93") between Salem and Manchester, New Hampshire. The project stalled for several years while NHDOT refined its traffic projection methodology but recommenced in 1999. In April 2004, the Federal Highway Administration ("FHWA") and NHDOT issued a Final Environmental Impact Statement proposing, among other things, to add four lanes—two in each direction—to I-93 between Salem and Manchester. On June 28, 2005, FHWA issued a Record of Decision approving the proposed alternative.

The Conservation Law Foundation ("CLF") challenges the Record of Decision, contending that NHDOT and FHWA violated the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. and the Federal-Aid Highway Act, 23 U.S.C. § 101 et seq. The parties agree that the case can be resolved on their cross-motions for summary judgment.

A. National Environmental Policy Act

The National Environmental Policy Act ("NEPA") is implicated when an agency proposes "a major Federal action[ ] significantly affecting the quality of the human environment."1 42 U.S.C. § 4332(2)(C). NEPA requires an agency contemplating a major federal action to take a "hard look" at alternatives and environmental consequences before undertaking the action.2 Baltimore Gas & Elec Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 97, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983). To this end, the agency ordinarily must prepare an Environmental Impact Statement ("EIS") that includes, among other things, a rigorous, objective evaluation of all reasonable alternatives to the proposed action—including the alternative of no action—and, for alternatives which were eliminated from detailed study, a brief discussion of why they were eliminated. 40 C.F.R. § 1502.14. The EIS must also include a discussion of the direct and indirect environmental effects of the proposed action and its alternatives. 40 C.F.R. § 1502.16. Direct effects are effects caused by the action that occur at the same time and place. 40 C.F.R. § 1508.8. Indirect effects are effects "which were caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable." 40 C.F.R. § 1508.8.

Indirect effects "include growth-inducing effects and other effects related to induced changes in the pattern of land use, population density or growth rate, and related effects on air and water and other natural systems, including ecosystems." 40 C.F.R. § 1508.8. Agencies must address a proposed action's indirect effects in an EIS if they are reasonably foreseeable,3 sufficiently definite,4 and significant.5 Dubois, 102 F.3d at 1286; Sierra Club, 769 F.2d at 878 (citation omitted).

Before work on an EIS begins, the federal agency proposing the project must engage in a "scoping" process. 40 C.F.R. § 1501.7. To initiate the process, the agency invites the participation of other federal, state, or local agencies, and other interested parties, including those who might object to the action on environmental grounds. 40 C.F.R. § 1501.7(a)(1). During the scoping process, the agencies and outside parties work cooperatively to identify the significant issues to be analyzed in depth in the EIS and to eliminate insignificant issues from further study. 40 C.F.R. § 1501.7(a)(2)-(3).

At the close of the scoping process, the agency begins to prepare the EIS. Environmental impact statements are generally prepared in two stages. 40 C.F.R. § 1502.9. First, the agency works with cooperating agencies to prepare a Draft Environmental Impact Statement ("DEIS"). 40 C.F.R. § 1502.9(a). After preparing the DEIS, the agency must obtain comments from "any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved or which is authorized to develop and enforce environmental standards." 40 C.F.R. § 1503.1(a)(1). Additionally, the agency must request comments from the public and affirmatively solicit comments from interested persons. 40 C.F.R. § 1503.1(a)(4).

After the DEIS is released, the agency must prepare a Final Environmental Impact Statement ("FEIS"). 40 C.F.R. § 1502.9(b). In preparing the FEIS, the agency must accept and consider public comments on the DEIS—both individually and collectively—and include responses to those comments in the FEIS.6 40 C.F.R. §§ 1503.4(a)-(b). The agency must supplement either the DEIS or FEIS—via a Supplemental Environmental Impact Statement ("SEIS")—in the event of "significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts." 40 C.F.R. § 1502.9(c)(1)(ii).

The agency must wait at least thirty days after notice of the FEIS is published in the Federal Register7 before it may make or publish a decision. 40 C.F.R. §§ 1506.10(a)-(b). Before it makes its decision, the agency may solicit public comments on the FEIS. 40 C.F.R. § 1503.1(b). Additionally, other agencies or persons may comment on the FEIS before the agency makes its decision. 40 C.F.R. § 1503.1(b).

The agency must publish a Record of Decision ("ROD") when it makes its decision. 40 C.F.R. § 1505.2. In addition to announcing the decision, the ROD must, among other things, identify all alternatives considered and specify which alternative or alternatives were considered environmentally preferable. 40 C.F.R. §§ 1505.2(a)-(b). The agency may also discuss preferences among alternatives based on relevant factors such as economic and technical considerations as well as agency statutory missions. 40 C.F.R. §§ 1505.2(b). The ROD must also state whether all practicable means to avoid or minimize environmental harm from the alternative selected have been adopted, and if not, why they were not. 40 C.F.R. § 1505.2(c). The agency must adopt and summarize a monitoring and enforcement program where applicable for any such mitigation. Id.

B. The Federal-Aid Highway Act

The Federal-Aid Highway Act ("FAHA") requires, among other things, that the Secretary of Transportation adopt design standards for the interstate highway system which, "as applied to each actual construction project, shall be adequate to enable such project to accommodate the types and volumes of traffic anticipated for such project for the twenty-year period commencing on the date of approval . . . of the plans, specifications, and estimates for actual construction of such project." 23 U.S.C.A. § 109(b).

FAHA also requires that "possible adverse economic, social, and environmental effects relating to any proposed project on any Federal-aid system [be] fully considered in developing such project," and that "the final decisions on the project [be] made in the best overall public interest, taking into consideration the need for fast, safe and efficient transportation, public services, and the costs of eliminating or minimizing such adverse effects." 23 U.S.C. § 109(h).


Interstate 93 is a north-south principal arterial Interstate Highway, portions of which run through the state of New Hampshire. Administrative Record ("AR") 21402. Interstate 93 was built in the 1960s and early 1970s, and the 19.8-mile section from Salem to Manchester (the "Project Area"), which currently consists of two lanes in each direction, has not been substantially widened since it was built. AR 21404.

In 1988, in order to address perceived problems associated with traffic congestion, NHDOT began to evaluate conceptual widening alternatives for the southerly section of the I-93 corridor. AR 21405. In 1991, Defendants initiated preliminary designs and environmental analyses of alternatives and impacts. Id. The process was later delayed for several years, however, while NHDOT refined its traffic projection methodology. Id.

A. The Statewide Model

In 1999, with the development of the traffic model nearing completion, NHDOT restarted the environmental review process by initiating preliminary engineering and environmental studies. Id. To assist in analyzing regional transportation needs, Defendants employed the traffic projection model developed by NHDOT during the Project's hiatus (the "Statewide Model"). AR 21779. The Statewide Model estimates future travel demand based on data collected on highway, rail, and bus systems; land use; and socio-economic characteristics. AR 21779, 26442, 26810. It then predicts travel behavior and travel demand based on these inputs and additional information developed by the New Hampshire Office of Energy and Planning ("OEP") regarding population and employment data extrapolated from the 1990 Census and local master plans. AR 26442-43, 26810. The Statewide Model also uses data such as the number of households in each traffic analysis zone, broken down by vehicle availability, income level, and number of workers. AR 26773. The Statewide Model is a "trip based" model that consists of many "sub-models." AR 21779, 26443. The I-93...

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