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January 16, 1997

SIERRA CLUB, ILLINOIS CHAPTER, a California Not-for-Profit Corporation; SOUTH CORRIDOR AGAINST THE TOLLWAY, INC., an Illinois Not-for-Profit Corporation; ENVIRONMENTAL LAW AND POLICY CENTER OF THE MIDWEST, an Illinois Not-for-Profit Corporation; and BUSINESS AND PROFESSIONAL PEOPLE FOR THE PUBLIC INTEREST, an Illinois Not-for-Profit Corporation, Plaintiffs,
U.S. DEPARTMENT OF TRANSPORTATION, FEDERICO PENA, Secretary, U.S. Department of Transportation; FEDERAL HIGHWAY ADMINISTRATION; RODNEY SLATER, Administrator, Federal Highway Administration, MICHAEL A. COOK, Illinois Division Administrator, Federal Highway Administration; KIRK BROWN, Secretary, Illinois Department of Transportation; and JULIAN D'ESPOSITO, Chairman, Illinois State Toll Highway Authority, Defendants.

The opinion of the court was delivered by: CONLON

 The Illinois chapter of Sierra Club ("Sierra Club") and several other not-for-profit corporations (collectively "plaintiffs") sue a number of federal and state transportation agencies and officials (collectively "defendants"), alleging that defendants have failed to comply with the National Environmental Policy Act ("NEPA") (Count I), 42 U.S.C. §§ 4321-4370, and section 4(f) of the Transportation Act ("section 4(f)") (Count II), 49 U.S.C. § 303, in the planning of a 12.5 mile new toll highway ("tollroad") in Will County, Illinois. *fn1" Plaintiffs seek declaratory judgment that the Federal Highway Administration's ("FHWA") approval of the project was unlawful. Plaintiffs also seek remand of the case for further review by FHWA. The parties have filed cross-motions for summary judgment.


 The following facts are undisputed except where otherwise noted. The proposed tollroad is a 12.5 mile multi-lane, divided highway that would extend Interstate 355 from its current southern terminus at Interstate 55 near Bolingbrook, Illinois to Interstate 80 near New Lenox, Illinois, about 25 miles southwest of Chicago. Pl. 12(M) P 19. The tollroad would pass through Will County and parts of suburban Cook and DuPage Counties. Id.

 Construction of the tollroad would have some impact on wetlands, forest preserve areas, wildlife habitats, farmland, wildlife migration, runoff, noise, and air quality. Id. P 21; Def. 12(N)(3)(a) P 21. The tollroad would also affect numerous natural, scenic and historical sites, such as the Keepataw Forest Preserve, Black Partridge Forest Preserve, Lustron House, the Illinois and Michigan Canal, Centennial Trail, and Lamont Woods Forest Preserve. Id. P 22. The parties dispute the extent of any direct and indirect harm that would result from the construction of the tollroad.

 NEPA and section 4(f) require an environmental impact statement and a section 4(f) evaluation of projects such as the tollroad. On July 26, 1994, FHWA and the Illinois Department of Transportation ("IDOT") completed a draft environmental impact statement and section 4(f) evaluation ("draft impact statements"). Id. P 23. FHWA and IDOT circulated the draft impact statements for public comment and received numerous responses. Id.

 Several of the responses raised questions about the draft impact statements' discussion of alternatives to construction and of the impact of the proposed construction. Id. The parties dispute the extent to which the final environmental impact statement and section 4(f) evaluation ("final impact statement") corrected any deficiencies noted by the comments and whether the final impact statement complies with NEPA and section 4(f).

 In June 1995, IDOT and FHWA released a supplement to the draft impact statements. Id. P 24. IDOT and FHWA received comments on the supplement that raised questions about the statements' treatment of alternatives to construction and the impact of the proposed construction. Id. The parties dispute the extent to which the final impact statement incorporated the concerns reflected in the public comments.

 In February 1996, IDOT and FHWA issued the final impact statement. Def. 12(M) P 15. It states that the purpose of the tollroad is "to provide a north/south transportation corridor linking Interstate Route 55 and Interstate Route 80 thereby providing a more efficient and better balanced transportation system that addresses existing and projected transportation demands within Will County and the region." Id. P 17. In particular, the final impact statement identifies existing transportation problems such as the need to: (1) improve local travel; (2) accommodate increasing freight demand; (3) relieve congestion at critical locations on the interstate system; (4) provide a north-south transportation corridor; (5) accommodate shifting locations of employment; and (6) enhance community linkage. Id. P 18. The final impact statement also asserts that the tollroad would meet projected increased transportation demands. Id. P 26.

 Plaintiffs deny that any evidence exists to support the final impact statement's claims as to existing needs and argue that projected needs are improperly based on population forecasts that assume construction of the tollroad. Pl. 12(N)(3)(a) PP 19-27. Plaintiffs point out, and defendants admit, that defendants used a single unvarying land use, population and employment forecast for analyzing all alternatives, including the no action alternative. Pl. 12(M) P 39. The forecast assumes transportation facilities will be developed to meet the needs of an increasing population. Id. P 40; Def. 12(N)(3)(a) P 40. Thus, plaintiffs argue that the final impact statement's discussion of alternatives to construction, Def. 12(M) P 30, was not legally sufficient. Pl. 12(N)(3)(a) P 30; Pl. 12(N)(3)(b) PP 1-7. Moreover, plaintiffs assert that the analysis of the environmental impact of construction, Def. 12(M) PP 58, 68, was not legally sufficient. Pl. 12(N)(3)(a) PP 30, 58, 68.

 On April 16, 1996, FHWA approved the final impact statement in its Record of Decision ("FHWA's decision"). Pl. 12(M) P 26. On May 3, 1996, plaintiffs and several other organizations formally requested reconsideration of FHWA's decision. Id. P 27. FHWA denied reconsideration in a letter dated May 8, 1996. Id.

 The Northeastern Illinois Planning Commission is the region's official land use and demographic forecasting agency; its earlier population and employment estimates for the tollroad corridor are expressly relied on in the final impact statement. Id. P 28. In June 1996, the Northeastern Illinois Planning Commission publicly released a draft document entitled "I-355 Heritage Corridor Cumulative Impact Assessment". Id. ; Def. 12(N)(3)(a) P 28. The Northeastern Illinois Planning Commission draft report suggests that population and employment estimates in its previous reports underestimated the growth that would occur in Will County following construction of the tollroad. Id. P 29. In response to this report, plaintiffs submitted a second request for reconsideration to FHWA. Pl. 12(M) P 31. FHWA denied that request on July 3, 1996. Id. P 32. Plaintiffs now seek review of FHWA's decision under the Administrative Procedure Act.



 A movant is entitled to summary judgment under Rule 56 when the record indicates there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Unterreiner v. Volkswagen of America, Inc., 8 F.3d 1206, 1209 (7th Cir. 1993). The court considers the record as a whole and draws all reasonable inferences in the light most favorable to the party opposing the motion. Fisher v. Transco Services-Milwaukee, Inc., 979 F.2d 1239, 1242 (7th Cir. 1992). This case is particularly ripe for summary judgment, as the administrative record sets forth all facts necessary for a decision.

 The standard of review in this case is narrow. Under the Administrative Procedure Act, this court can set aside FHWA's decision only if it was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. . . ." 5 U.S.C. § 706(2)(A). This court cannot "substitute its judgment for that of the agency." Sierra Club v. Marita, 46 F.3d 606, 619 (7th Cir. 1995) (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 28 L. Ed. 2d 136, 91 S. Ct. 814 (1971)). Moreover, the burden of proof is on the plaintiffs to demonstrate that FHWA's decision was improper. Id. Nonetheless, deference does not "shield [an agency] action from a thorough, probing, in-depth review." Id. (quoting Overton Park, 401 U.S. at 415). An agency violates the Administrative Procedure Act if it relies on factors Congress did not intend for it to consider, fails to examine an important aspect of the problem, offers an explanation for its decision that contradicts the evidence before the agency, or is so implausible that it cannot be attributed to a product of agency expertise. Id. (quoting Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43, 77 L. Ed. 2d 443, 103 S. Ct. 2856 (1983)).


 Defendants contend plaintiffs lack standing to bring this suit. In order to have standing, plaintiffs must demonstrate "the actual or imminent invasion of a concrete and particularized legally-protected interest (an 'injury in fact'), a causal connection between the defendant's actions and the injury, and a likelihood that the injury is redressable by a favorable court decision." 46 F.3d at 611 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 119 L. Ed. 2d 351, 112 S. Ct. 2130 (1992)). Defendants contend plaintiffs have failed to show an injury in fact because they have not shown how their members will be injured if relief is not granted.

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