United States District Court, N.D. Illinois, Eastern Division
OPENLANDS, MIDEWIN HERITAGE ASSOCIATION, and SIERRA CLUB, Plaintiffs,
UNITED STATES DEPARTMENT OF TRANSPORTATION, et al.,
Defendants, and ILLINOIS DEPARTMENT OF TRANSPORTATION, INDIANA DEPARTMENT OF TRANSPORTATION, Defendant-Intervenors
Openlands, Midewin Heritage Association, Sierra Club,
Plaintiffs: Howard Alan Learner, Jennifer Elyse Tarr, Rachel
Leigh Granneman, Environmental Law and Policy Center,
United States Department of Transportation, Defendant: AUSA,
Harpreet Kaur Chahal, United States Attorney's Office
(NDIL), Chicago, IL.
Anthony Foxx, Secretary, United States Department of
Transportation, Federal Highway Administration, Catherine
Batey, Administrator, Illinois Division, Federal Highway
Administration, Victor M. Mendez, Administrator, Federal
Highway Administration, Defendants: AUSA, United States
Attorney's Office (NDIL), Chicago, IL.
Indiana Department of Transportation, Intervenor Defendant:
Albert M Ferlo, William G. Malley, PRO HAC VICE, Kathleen A.
Stetsko, Perkins Coie LLP, Washington, DC.
Illinois Department of Transportation, Intervenor: Cindy K
Bushur-hallam, PRO HAC VICE, Ill. Dept. Of Trans. - Office Of
Chief Counsel, Springfield, IL; William Mahl Barnes , Jr.,
Illinois Department of Transportation, Chief Counsel,
OPINION AND ORDER
JORGE ALONSO, United States District Judge.
seek summary judgment on their claim that the Federal Highway
Administration's Record of Decision and approval of the
Tier 1 Final Environmental Impact Statement (" EIS"
) for the proposed Illiana Tollway violates the National
Environmental Policy Act (" NEPA" ) and section
4(f) of the Transportation Act. For the reasons set forth
below, the Court grants plaintiffs' motion.
8, 2011, the Federal Highway Administration ("
FHWA" ) issued a notice of intent to prepare " a
Tier One Environmental Impact Statement (EIS) . . . for the
Illiana Corridor Project" with anticipated "
termini [of] Interstate Highway 55 in Will County, Illinois
and Interstate Highway 65 in Lake County, Indiana." 76
Fed.Reg. 33401. The Tier One study was conducted
jointly by the FHWA, the Illinois Department of
Transportation (" IDOT" ), and the Indiana
Department of Transportation (" INDOT" ) ("
the Agencies" ). (Defs. & Def.-Intervenors' Jt.
Stmt. Material Facts ¶ 1.) The study area was "
approximately 950 square miles in portions of Will and
Kankakee counties in Illinois and Lake County in
Indiana." 76 Fed. Reg 33401.
issuing the notice of intent, the Agencies received input
from a variety of federal, state, and local stakeholders
regarding the EIS. The stakeholders included the Illinois and
Indiana metropolitan planning organizations ("
MPOs" ), state-created entities required by federal law
to develop both long-range " transportation plans,"
with a planning horizon of at least twenty years, and
short-range " transportation improvement programs,"
which are updated every four years, in " metropolitan
areas of [a] State." 23 U.S.C. § 134(c)(1); 23
C.F.R. § § 450.322(a), 450.324(a). Among the MPOs
involved in the process were the Chicago Metropolitan Agency
for Planning (" CMAP" ), which is "
responsible for developing and adopting a funding and
implementation strategy for an integrated land use and
transportation planning process for the northeastern Illinois
region," and the Northwestern Indiana Regional Planning
Commission (" NIRPC" ), which is charged with
" institut[ing] and maintain[ing] a comprehensive
planning and programming process" for transportation,
economic development, and environmental policy for
northwestern Indiana. See 70 Ill.Comp.Stat.
1707/15(a); Ind. Code 36-7-7.6-12.
the notice of intent was issued, CMAP and NIRPC each had
long-range transportation plans in place. CMAP's plan,
called GO TO 2040, was based on a 2040 Forecast of
Population, Households and Employment that reflected
CMAP's policies for development in the region.
. Though CMAP had previously used market-based forecasts for
its long-range planning, for GO TO 2040 it " chose . . .
a policy-based plan (dealing with the investments and
high-level choices that shape [the] region)
as opposed to a land use plan (dealing with specific types of
development in specific locations.)." (Defs. &
Def.-Intervenors' Stmt. Facts., Ex. 5, AR4_000026;
id., Ex. 8, AR4_000417.) The CMAP GO TO 2040
forecast projects that the population of and employment in
Will County will increase by 76% and 116.5%, respectively,
between 2010 and 2040. See
long-range plan projects that the Northwest Indiana region,
comprised of Lake, Porter, and LaPorte counties, will see
increases of 13% and 29%, respectively, in population and
employment by 2040. See
Agencies did not, however, use the MPOs' 2040 forecasts
to prepare the EIS because, they said, the forecasts were
based on " aggressive assumptions regarding infill,
redevelopment & densification." (AR2_038304.) Instead,
the Agencies used market-driven forecasts developed by
consultants. ( See generally AR1_001378-1466.) The
Agencies' forecasts project that by 2040, the population
of Will County will have grown by 102%, the population of
Lake County will have grown by 26%, and the population of the
study area as a whole will have grown by 176%. (AR2_018252.)
The forecasts also project that by 2040, employment in Will
County will have grown by 167%, employment in Lake County
will have grown by 36%, and employment in the study area
overall will have grown by 225%. (AR2_018257.)
November 2011, the Agencies met with CMAP and NIRPC to
discuss the forecasts. ( See AR1_003752-54.) CMAP
and NIRPC objected to the market-driven forecasts, explaining
that their policy-driven forecasts envisioned "
revitalization of the urban core" and " more
development to existing communities." (AR1_003752.) CMAP
did not object to the Agencies' use of their own
forecasts but asked them to prepare a " 'policy
based' forecast using CMAP's 2040 socioeconomic
scenario" as well. (AR1_003753.)
December 2011, CMAP submitted comments to IDOT on the
proposed " Purpose and Need" section of the draft
EIS (" DEIS" ) for the Illiana project:
CMAP staff has worked closely with [IDOT] on this project,
particularly regarding the population and employment
forecasts that are being used in this study. For purposes of
preparing revenue forecasts under market conditions, [IDOT]
is basing its demand forecasts on an alternative geographic
distribution of households and jobs that departs from those
assumed under GO TO 2040. While CMAP understands the reasons
behind this, we are asking that demand forecasts for the
project also be prepared using GO TO 2040 assumptions to
support current regional planning analyses and remain
consistent with requirements of the National Environmental
(AR3_002569-70.) IDOT responded that " a refined project
level forecast [was] being developed." (AR3_002571.)
receiving input from a variety of stakeholders and analyzing
dozens of potential corridor routes, the Agencies chose three
potential corridors to analyze in the DEIS: A3S2 (the
northernmost alternative that runs north of the Midewin
National Tallgrass Prairie (" Midewin" )), B3 (a
corridor adjacent to the south side of Midewin), and B4 (a
variation of B3 with a more southern terminus in Indiana). (
See AR 1_000200-04.) However, in February 2012,
before the DEIS was complete, the Agencies made " [t]he
preliminary recommendation [that] . . . Alternative B3 . . .
be carried forward as the finalist" for the Tier Two
March 2012, plaintiffs objected that the Agencies had "
prematurely limit[ed] [their] analysis of reasonable
alternatives by solely comparing the 'B3' route to a
no action alternative in the upcoming EIS."
(AR1_003707.) ''By dismissing variations of northern
alignments as a reasonable alternative," plaintiffs
said, the Agencies " ha[d] not rigorously explored and
objectively evaluated all reasonable alternatives." (
March 14, 2012, CMAP told the Agencies:
[W]e are concerned with the Preliminary Recommendation to
carry forward only the B3 alternative . . . . The Purpose and
Need Statement identifies the need to improve regional
mobility and to address local system deficiencies. By
choosing an alignment that is well south of any substantial
development, while minimizing property impacts, the corridor
has little positive effect on regional mobility and local
system deficiencies. The screening results clearly showed
that, as the location shifts south, travel performance
Also, since it is assumed that this will be a toll facility
of some type, the B3 alternative's decrease in
performance not only fails to fully address the purpose and
need, it also will likely not generate sufficient revenue to
construct and maintain the facility.
And finally, while considering quality of life in
northeastern Illinois, GO TO 2040 seeks to direct investment
toward strengthening existing communities, and finding
opportunities to encourage new development and redevelopment
in livable communities that are denser and designed for mixed
uses. Focusing primarily on the B3 alternative may encourage
future development outside existing communities. Continued
analysis of alternative routes is necessary, to consider
whether they can provide a focus for development and
redevelopment within existing communities that is consistent
with GO TO 2040.
. . . . We would encourage the Illinois Department of
Transportation to carry forward additional northern corridors
through the Draft Environmental Impact Statement. That
information will be pertinent both to the continuation of
this current process and, ultimately, to how this project
will be evaluated for potential inclusion in the prioritized,
fiscally constrained major capital project that is part of GO
TO 2040, the region's official long range plan.
2012, the Agencies issued the DEIS, which states that the
Illiana project will address " three principal
needs" : (1) " [i]mprove regional mobility" ;
(2) " [a]lleviate local system congestion and improve
local system mobility" ; and (3) " [p]rovide for
efficient movement of freight." (AR1_008022.) These
needs were based in part on the Illiana Corridor
Transportation System Performance Report ("
TSP" ), which, in turn, is based on the Agencies'
forecasts of population and employment growth. ( See
AR1_001378-1466, 008022; AR 2_018216.) As discussed above,
the forecasts project that by 2040, the population of and
employment in Will County will grow by 102% and 167%,
respectively, and the population of and employment in the
study area as a whole will grow by 176% and 225%,
respectively. (AR2_018252, 018257.) These forecasts are the
foundation for the DEIS' analysis of how building the
Illiana corridor in one of the three " finalist"
locations or not building it at all will impact the area. (
See, e.g., AR1_007993, 8004, 8015-40, 8163-64.)
August 2012, NIPRC submitted the following comments on the
DEIS to the Agencies:
1.4 Project Need
The Study Area is expected to increase population by 176
percent and employment by 225 percent between 2010 and 2040.
This strong population growth in the Study Area will result
in increased local and regional traffic demands.
NIRPC deviates with the assumptions of population and
employment growth in the study area. The study has relied on
market-based forecasts of future population and employment
for the purposes of estimating facility design requirements
and toll revenue. NIPRC has indicated that the use of
market-based forecasts may be useful for the development of
the Illiana project's toll and facility design
requirements, but the use of market-based forecasts is
inconsistent with the 2040 Growth and Revitalization Vision
that the Commission adopted in October, 2010. The
distribution of regional growth as envisioned by the study
team differs significantly form the distribution of growth in
the 2040 Comprehensive Regional Plan for Northwest Indiana,
which was adopted by NIRPC in June, 2011.
In the Indiana portion of the study area, NIRPC has planned
for a population growth of 19.8% and an employment growth of
27.9%. The limited growth assumed by NIRPC reflects issues of
the protection of the rural character of the Indiana part of
the study area, the need to prioritize reinvestment on the
urban core communities on the Lake Michigan Shore and limited
access to high quality fresh water from Lake Michigan in the
. . . .
The Illiana study is based on the assumption of a 176 percent
increase in population and a 225 percent increase in
employment in the study area. If the official MPO [
i.e., NIRPC] forecasts were used instead of the
consultant team's forecasts, there would be a basis to
predict significantly less travel and traffic congestion in
the study area, and the need for the project would be greatly
August 28, 2012, CMAP submitted its comments on the DEIS to
To maintain and strengthen our region's position as one
of the nation's few global economic centers, GO TO 2040
recommends policies and investments that promote livability
and sustainability. While acknowledging that some growth will
occur on the outer fringes of our region, GO TO 2040
emphasizes the need to target investments whenever possible
to foster growth in existing communities. We are concerned
that the Illiana project's alternatives are not being
evaluated using the CMAP forecasts developed for GO TO 2040.
It is our understanding that the EIS process would also test
potential alternatives using the CMAP forecasts, which have
been developed through a cooperative, comprehensive planning
effort and follow from a series of policy recommendations
that have been approved by the CMAP Board and MPO Policy
Committee. We encourage you to undergo this ...