United States District Court, N.D. Illinois, Eastern Division
June 16, 2015
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 analysis for all
of the alternatives under consideration. The comparative
results for the three alternatives could be significantly
different than those developed with the forecasts that you
developed for this project.
August 29, 2012, plaintiffs submitted written comments to the
Agencies questioning the utility of B3 as the Illiana route:
. . . . [W]hile the agencies agreed to several requests from
stakeholders to include a northern route as part of their
alternatives analysis, IDOT and INDOT have decided (again
based on inadequate and missing information) that their
originally prefererd [sic] B3 alternative still offers the
best balance to meet the project's purpose and need. . .
However, it remains unclear what good an Illiana expressway
along this southern route would serve. The B3 corridor would
do little to address northern traffic congestion on I-80, and
is the least effective alternative to address . . .
intermodal truck traffic.
The southern routes run contrary to both concerns raised by
[CMAP] in the scoping process, and to . . . [NIRPC's]
2040 Comprehensive Regional Plan, which shows dramatically
different predictions for Indiana growth in population and
employment within the Illiana study area than the figures
relied upon by IDOT and INDOT . . . .
(AR1_005150). Plaintiffs also asserted that the DEIS failed
to adequately consider a number of environmental impacts,
including those that would affect Midewin:
Constructing Illiana south of Midewin will introduce intense
noise, light, dust and pollution that will constrict and
degrade the viable habitat for grassland birds, especially in
cases where they need large expanses of prairie and grassland
to thrive. The dramatic increase of truck traffic along
Illinois 53 will further encroach upon this important bird
habitat . . . . Birds either avoid areas near heavy use or
are found in lower numbers. One study found that bird
presence and breeding were reduced by 1200 meters from a road
with heavy traffic volume. Another study shows that birds can
be negatively impacted by traffic noise up to 1.2 miles from
the road. . . . Birds communicate through auditory signals.
If birds cannot discriminate between their own songs and
background noise, it makes it more difficult for them to
advertise locations of food and form pair bonds. . . .
. . . .
While the DEIS is correct in its assumption that certain
grassland birds in the area would avoid the noise, light and
air pollution from the roadway, this hardly means that the
impact is not adverse. . . . To the contrary, removing or
encroaching upon Midewin so that the birds no longer find
areas habitable marks a significant impact, especially when
Midewin has been preserved for the purpose of allowing these
species the expanses they need to survive and nest. The
Illiana should be viewed as contributing impacts to an
already constrained landscape that is crucial for sustaining
these grassland bird populations.
October 2012, the Agencies announced their selection of
Alternate B3 as the proposed site for the Illiana Corridor.
December 12, 2012, CMAP submitted comments on the
Agencies' choice, reiterating its concern that " the
Illiana project's alternatives [were] not being evaluated
using CMAP forecasts developed for GO TO 2040."
(AR3_003307). CMAP said it was " under the impression
that the EIS process would also test potential alternatives
using the CMAP forecasts," which " could
significantly change the scoring of the alternatives for the
performance measures used in the Preferred Corridor
December 20, 2012, the agencies responded as follows:
There appears to be some misunderstanding regarding past
coordination efforts between our agencies, particularly with
respect to the topic of forecasting.
As documented in the November 21, 2011 meeting held with the
Illiana team . . . , the rationale for our forecasting
approach was discussed in depth. The meeting summary also
reflects CMAP's concurrence with the Illiana team's
forecasting approach, as well as our response to CMAP's
request that the GO TO 2040 forecast also be used for the
Illiana study. Since that time, there have been follow up
meetings with CMAP staff . . . . Beyond these specific
coordination efforts, CMAP was part of the project's
Corridor Planning Group; CMAP staff attended these meetings,
and asked these same questions, which were then responded to
in this public forum. Moving forward, we are committed to
working through these issues until they are fully resolved.
With respect to forecasts, as noted in the coordination
meetings referenced above, there are a number of very
important reasons why the Illiana team must use a "
market based" forecast for NEPA studies, rather than
simply using the GO TO 2040 forecast. This is consistent with
the approach taken by IDOT, in consultation with CMAP and its
predecessor agencies over the past 15 years on major corridor
projects. Since the late 1990s, the courts have required a No
Build/Build analysis that reflect [sic] actual development
and travel behavior that result from a major new
transportation project. Actual development is synonymous with
market-driven economic forecasts and as such, they were
developed for the Illiana Corridor Study. Market-driven
economic forecasts are also needed for detailed NEPA level
project development for design, environmental impact, and
financial analysis. Market-driven economic forecasts are also
being used by IDOT on other major projects and by the
. . . .
The Illiana team is not using the CMAP GO TO 2040
policy-driven forecasts in the alternatives analysis in the
EIS for several reasons. The use of two sets of forecasts
will result in multiple sets of traffic forecasts and impacts
that will confuse readers and potential investors should the
project be financed through public private partnerships. The
CMAP GO TO 2040 policy-driven forecasts do not reflect build
conditions with an Illiana Corridor facility and other
baseline projects, and a build condition is required for the
analysis. Finally, actual growth in the region will occur
based on jurisdictional local land use policies, which may
not reflect or be consistent with CMAP policy-based
forecasts. We have, however, included a discussion of the
CMAP GO TO 2040 forecast in appendix E the DEIS.
January 17, 2013, the FHWA approved the Tier One Final EIS
and Record of Decision selecting Corridor B3 as the sole
proposed site for further study. (AR1_000006-7.) With respect
to CMAP's comments, the EIS says the following:
CMAP submitted a letter with six comments regarding the
project's Purpose and Need and consistency with the GO TO
2040 long-range comprehensive regional plan. Specifically,
CMAP expressed concern that the project alternatives are not
being evaluated using the CMAP forecasts developed for GO TO
2040. The agency expressed concerns about Corridor B3 and its
likelihood to encourage growth that is not near existing
development. . . .
In response, it was stated that the Illiana Corridor project
team coordinated with CMAP during Tier One to develop the
Illiana Corridor study's 2040 market-based
forecasts for use in developing traffic forecasts for design
and financial analysis, rather than use of CMAP's
policy-based GO TO 2040 forecasts. CMAP's policy-based
forecasts do not account for an Illiana " build"
scenario which is required by federal regulations. Per
federal regulations, the forecasts must reflect the presence
of the transportation network, in this case a "
build" forecast scenario must be developed. . . .
(AR1_000809.) Moreover, the EIS concludes that the proposed
Illiana corridor would not impact or " constructive[ly]
use" the Midewin Tallgrass Prairie because: (1) "
[f]ederal listed species within Midewin National Tallgrass
Prairie are known to be located further north within the
property away from the working alignment within Corridor B3
. . . , reducing the potential for proximity impacts" ;
and (2) " [i]mpacts from such sources as highway noise,
air quality, and lighting from these corridors are not
expected to be adverse since it is commonly believed that
relatively mobile birds and wildlife would move away from
such sources." (AR1_000550.)
Court's determination of whether the Record of Decision
(" ROD" ) and final EIS comply with NEPA and
section 4(f) of the Transportation Act is governed by the
Administrative Procedures Act (" APA" ). Ind.
Forest Alliance, Inc. v. U.S. Forest Serv., 325 F.3d
851, 858 (7th Cir. 2003). Under the APA, the Court will set
aside agency action if it is " arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with
law." 5 U.S.C. § 706(2)(A). To make this
determination, the Court must consider " 'whether
the decision was based on a consideration of the relevant
factors and whether there has been a clear error of
judgment.'" Ind. Forest Alliance, 325 F.3d
at 859 (quoting Marsh v. Or. Nat. Res. Council, 490
U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989));
see Sierra Club v. Marita, 46 F.3d 606, 619
(7th Cir. 1995) (" Where an 'agency has relied on
factors which Congress has not intended it to consider,
entirely failed to consider an important aspect of the
problem, offered an explanation for its decision that runs
counter to the evidence before the agency, or is
soimplausible that it could not be ascribed to a difference
in view or the product of agency expertise,' the agency
has violated the standards of the APA." (quoting
Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto.
Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d
443 (1983))). However, " '[t]he court is not
empowered to substitute its judgment for that of the
agency.'" Id. (quoting Citizens to
Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416,
91 S.Ct. 814, 28 L.Ed.2d 136 (1971), abrogated on other
grounds, Califano v. Sanders, 430 U.S. 99, 97
S.Ct. 980, 51 L.Ed.2d 192(1977)).
requires every federal agency to include an EIS " in
every recommendation or report on proposals for legislation
[or] other major Federal actions significantly affecting the
quality of the human environment." 42 U.S.C. §
4332(C). An EIS " shall provide full and fair discussion
of significant environmental impacts and shall inform
decisionmakers 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. An EIS is comprised of various sections, including:
(1) the purpose of and need for the proposed action; (2) the
alternatives to the
proposed action; and (3) the environmental consequences of
the proposed action. 40 C.F.R. § 1502.10. The "
purpose and need" section " shall briefly specify
the underlying purpose and need to which the agency is
responding in proposing the alternatives including the
proposed action." 40 C.F.R. § 1502.13. The "
alternatives" section " is the heart" of EIS
and shall " [r]igorously explore and objectively
evaluate all reasonable alternatives, and for alternatives
which were eliminated from detailed study, briefly discuss
the reasons for their having been eliminated." 40 C.F.R.
§ 1502.14(a). The environmental consequences section
must discuss both direct and indirect effects of the proposed
action and the " [p]ossible conflicts between the
proposed action and the objectives of Federal, regional,
State, and local . . . land use plans, policies and controls
for the area concerned." 40 C.F.R. § 1502.16.
contend that the ROD and EIS do not justify the stated needs
for the B3 Illiana Corridor, i.e., to improve
regional mobility, alleviate local system congestion and
improve local system mobility, and provide for efficient
movement of freight (AR1_000010), because those needs are
derived from: (1) population forecasts that conflict with
CMAP and NIRPC's forecasts and ignore relevant census
data; and (2) baseline or " no build" forecasts
that are, in reality, premised on the assumption that the
project will be built.
Agencies say they rejected CMAP and NIRPC's population
forecasts because: (1) market-based forecasts " reflect
actual development and travel behavior that result from a
major new transportation project" ; (2) " actual
growth in the region will occur based on jurisdictional local
land use policies, which may not reflect or be consistent
with CMAP policy-based forecasts" ; (3) the market-based
forecasts are similar to those used by CMAP in transportation
plans that pre-dated GO TO 2040; and (4) " [t]he use of
two sets of forecasts [in the EIS] will result in multiple
sets of traffic forecasts and impacts that will confuse
readers and potential investors should the project be
financed through public private partnerships."
the MPOs' legal mandate to develop long-range
transportation plans for their areas and the influence they
wield over local land use decisions through those
transportation plans, it would seem unwise for the Agencies
to reject the MPOs' population forecasts. But plaintiffs
cite no authority requiring the Agencies to accept the
MPOs' forecasts, and the question for the Court is not
whether the Agencies' refusal to do so was unwise, but
whether it was " arbitrary" or "
capricious." 5 U.S.C. § 706(2)(A). Because the
Agencies have articulated reasonable, if not persuasive,
reasons for their decision not to use the MPOs'
forecasts, that decision is not arbitrary within the meaning
of the APA. See Marsh, 490 U.S. at 378
(1989) (" When specialists express conflicting views, an
agency must have discretion to rely on the reasonable
opinions of its own qualified experts even if, as an original
matter, a court might find contrary views more
Sierra Club, 46 F.3d at 621 (" The [agency] is
entitled to use its own methodology, unless it is
irrational." ); Piedmont Heights Civic Club, Inc. v.
Moreland, 637 F.2d 430, 442 (5th Cir. 1981) ("
Proof on an issue such as the inaccuracy of population
projections is inherently difficult because of the
uncertainty in population projections; however, citing a
conflicting projection does not prove the invalidity of
another projection." ).
also argue that the Agencies' forecasts ignore data from
the Census Bureau, which show that there was virtually no
growth in Will County between 2007 and 2013. ( See
Pls.' Mem. Supp. Summ.
J., Ex. C.) The record, however, contains no support for this
contention. The EIS and underlying documents repeatedly state
that the Agencies used census data to determine historic
population trends in the study area and to formulate the
market-based forecasts of future growth. ( See,
e.g., AR1_000247, 250, 256 (EIS stating that census data
was used to investigate " current and historic
population trends," " household income
characteristics," and " housing characteristics and
trends" ); AR2 _018248, 018254 (TSP stating that census
data was used " to investigate current and historic
population trends in the study area counties," and to
determine " total current employment" );
AR1_001390, 001395 (Agencies' No Build Scenario document
stating that information on historical growth and population
trends was based on census data).) Moreover, the
Agencies' population forecasts project growth over a
thirty-year period, starting in 2010 and ending in 2040. The
fact that there was little or no growth in Will County in the
first few years of that period does not necessarily
invalidate the thirty-year projection as a whole. It would,
perhaps, have been more prudent for the agencies to
acknowledge the fallow period and explain its effect, if any,
on the overall forecast. But, prudent or not, the
Agencies' failure to account explicitly for the lack of
growth in the early part of the forecast period does not make
the forecast arbitrary.
final contention is that the EIS' " no build"
forecast is fatally flawed. That forecast is described in a
document entitled Historic and Forecasted Growth of
Employment and Population in the Extended Region of Chicago,
Market-Driven versus Policy-Based Socio-Economic Forecasts
(2010-2040), No-Build Illiana Expressway Scenario. ( See
generally AR1_001378-1466; see also AR1_000248
(EIS stating that " [p]opulation forecasts were reviewed
. . . to determine the magnitude of growth projected in the
Study Area . . . within the next 30 years, under the
No-Action Alternative ( i.e., without the Illiana
Corridor)." ).) After explaining the methodology used to
create the forecast, the document projects that Will County
will have a population of 1,366,456 and employment of
672,961, if the Illiana project is not built. (AR1_001417.)
However, in the appendix pertaining to Will County, the
Over the next several decades there are, in planning and
development, a number of significant projects which should
benefit virtually all portions of Will County. Joining growth
in the northwest corner, which currently is benefitting from
O'Hare-related development, are:
o Continued developments related to the extension of I-355 to
I-80 in Homer and New Lenox Townships (primarily residential
o Major multi-modal developments in Jackson, Joliet,
Channahon and Wilmington Townships; and potentially, in
o South Suburban Airport development in Monee, Crete, Will
and Washington Townships.
o Potential construction of the Illiana Expressway
connecting all the above projects -- to one another -- and to
the national highway/rail/aviation network.
o Possible development of Metra's Southeast Service from
Chicago to Crete.
For these reasons, the Market-Driven expectations for Will
County are excellent. Population is forecasted to increase to
1,366,456, by 2040; this is 12.2 percent higher than the CMAP
forecast of 1,217,879. The Market-Driven employment forecast
is 672,961 BEA jobs. This is approximately 28.4 percent
than the CMAP 2040 employment forecast. . . .
(AR1_001428-29) (emphasis added).
Agencies argue that this " two line" reference in
the appendix cannot plausibly be read to suggest that their
no build forecast, in fact, assumes that the project will be
built. (Defs. & Def.-Intervenors' Opp'n Mot. Summ. J.
at 34.) The Court disagrees. The document plainly states that
" [p]otential construction of the Illiana
Expressway" is one of " the reasons" the
" [p]opulation [of Will County] is forecasted to
increase to 1,366,456, by 2040." (AR1_001429.) Because
the record shows that the " no build" population
forecast may or does include the " build"
condition, the record does not support the EIS' statement
that the purpose and need for the Illiana Corridor is to
accommodate the anticipated population boom in Will County.
the flawed " no build" forecast is the foundation
for the Agencies' projection of future traffic in the
study area and their conclusion that the existing roadways
cannot adequately serve the future transportation needs. As
the Agencies explain in the TSP:
1.5.4 2040 Travel Demand Forecasts
Analytical studies of the transportation system using a
travel demand forecasting model were conducted. Specifically,
travel characteristics on the existing 2010 transportation
system and the 2040 No Build Alternative were evaluated with
the aid of the travel demand model, which forecasts travel
patterns and origins and destinations of trips for the region
and in the study area. . . .
Existing and projected future travel demand
forecasts are prepared based on the 2010 and 2040
socio-economic forecasts. The outputs from the travel
demand forecasts are the basis for much of the transportation
system performance analysis.
1.5.5 Transportation System Performance Analysis
The information assembled and developed in the preceding
tasks was then used to analyze the ability of the
transportation system within the general study area to handle
current and future travel demand. This included the
analysis of historical, current and projected 2040
socioeconomic and transportation system characteristics and
performance. Performance measures were developed and
used to evaluate the adequacy and ability of the
transportation system in accommodating current and future
travel demand. . . . .
1.5.6 Transportation Needs Assessment
Based on the results of the transportation system
performance analysis, transportation deficiencies and needs
have been identified. In addition, public and
stakeholder input has been used to identify transportation
deficiencies and need.
(AR1_000881-82 (emphasis added); see AR1_000111 (EIS
projection that daily truck trips in the study area will
increase by 193% from 87,800 in 2010 to 257,100 in 2040);
AR1_000110 (EIS projection that truck hours of delay will
increase by 442% from 480 in 2010 to 2,600 in 2040).) In
short, the purpose and need for the Illiana Corridor
identified in the EIS are derived directly from the faulty
" no build" analysis. Because that analysis does
not substantiate the purpose and need, the FHWA's
approval of the ROD and final EIS is arbitrary and capricious
and in violation of NEPA.
flawed " no build" analysis also dooms the ROD and
EIS' analysis of the direct effects of the proposed
Corridor. See 40 C.F.R. § 1508.8 (defining
" direct effects as those " which are caused by the
action and occur at the same time and
place" ). With respect to these impacts, the Agencies
IL 53 is projected to carry 17,000 vehicles per day by 2040
in a " no build" scenario. The potential additional
growth of traffic on IL 53 in the Midewin area with an
Illiana Corridor build alternative varies from 0 to 11,000
vehicles per day (for a total of 17,000 to 28,000 vehicles
per day) depending on the corridor location, connectivity of
the Illiana Corridor to IL 53, and the application of tolling
to the Illiana Corridor.
(AR1_007509.) As discussed above, however, it is not clear
that the EIS contains a true " no build" analysis.
Without such an analysis, it is impossible to determine the
extent to which building the Corridor will increase traffic
on existing roads and the impact such increased traffic may
have on the study area. Thus, absent a supported no build
analysis, the EIS does not comply with NEPA's directive
to analyze the project's direct impacts.
also requires the EIS to assess the " indirect
effects" of a project, i.e., those " which
are caused by the action and are later in time or farther
removed in distance, but are still reasonably
foreseeable," including " 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. The EIS states
that the B3 Corridor " falls within an area that is
largely undeveloped," in which " [m]ore than 72
percent of streets and highways . . . are rural" and
" approximately 62 percent of roadways (2,093 miles) are
local or municipal streets." (AR1_000250, 322.) CMAP and
NIRPC both commented that building the Illiana Corridor in
such an area was likely to require the states and local
communities to upgrade those roads:
As stated in our letter commenting on Draft Tier I EIS, 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. To achieve that, major transportation
investments need to be positioned to foster growth in
existing communities. CMAP has serious concerns that the
preferred alternative, B3, will encourage growth that is not
near existing development. This alignment will promote
low-density development throughout the southern portion of
Will County. And while B3 is noted to have the lowest impact
on existing housing and might be the least costly in terms of
property acquisition, the real costs to provide and maintain
the necessary infrastructure to serve such development should
be considered, because they will add significantly to the
project costs and the overall development patterns.
(AR1_003739; see AR2_005269 (NIRPC commenting to
INDOT that " [i]t is likely that the [rural] roads
will need to be improved to accommodate the traffic induced
by the Illiana; the cost of these improvements will be borne
not by the private partner, but by the local and state
governments." ).) Yet the EIS does not suggest measures
for mitigating these impacts or even acknowledge that they
exist. ( See generally AR1000606-63 (EIS discussion
on indirect and cumulative impacts); see also
AR3_002786 (FHWA intra-agency email stating that CMAP's
comment about costs for additional infrastructure "
demonstrates [the Agencies'] lack of consideration for
secondary and cumulative impacts" ).)
also does not discuss the " [p]ossible conflicts between
the proposed action and the objectives of . . . regional . .
. land use plans," " any inconsistency
[between] a proposed action [and] any approved . . . local
plan," or " the extent to which the [Agencies]
would reconcile [the] proposed action with the plan." 40
C.F.R. § § 1502.16(c), 1506.2(d). The Agencies
acknowledge that the market-based population forecasts that
undergird their choice of B3 for the Illiana Corridor
conflict with the policy-based forecasts contained in the
MPOs' long-range transportation plans, which seek to
limit outward growth. The Agencies do not, however,
acknowledge that the growth induced by construction of the B3
corridor would also conflict with those plans. In fact, the
only thing the EIS says with respect to the MPOs'
transportation plans is: " At the regional level,
CMAP's Go To 2040 -- Comprehensive Regional Plan is for
the future of the Chicago metropolitan area. In addition, the
NIRPC approved its 2040 Comprehensive Regional Plan in June
2011. The regional plans establish a policy framework, while
the authority for land use control remains at the municipal
level." (AR1_000616.) Given the clear inconsistency
between the MPOs' long-range plans and the proposed
Illiana Corridor, NEPA obligates the Agencies to address it
and explain how they would " reconcile [the] proposed
action with the plan[s]." 40 C.F.R. § §
also contend that the Agencies violated section 4(f) of the
Transportation Act, which provides:
[T]he Secretary [of the FHWA] may approve a transportation
program or project . . . requiring the use of publicly owned
land of a public park, recreation area, or wildlife and
waterfowl refuge of national, State, or local significance,
or land of an historic site of national, State, or local
significance (as determined by the Federal, State, or local
officials having jurisdiction over the park, area, refuge, or
site) only if--
(1) there is no prudent and feasible alternative to using
that land; and
(2) the program or project includes all possible planning to
minimize harm to the park, recreation area, wildlife and
waterfowl refuge, or historic site resulting from the use.
49 U.S.C. § 303(c). In this context, " use"
includes " constructive use," 23 C.F.R. §
§ 774.17, which " occurs when the transportation
project does not incorporate land from a Section 4(f)
property, but the project's proximity impacts are so
severe that the protected activities, features, or attributes
that qualify the property for protection under Section 4(f)
are substantially impaired." 23 C.F.R. § 774.15(a).
FWHA has] determined that a constructive use occurs when:
(1) The projected noise level increase attributable to the
project substantially interferes with the use and enjoyment
of a noise-sensitive facility of a property protected by
Section 4(f), such as: . . .
(v) Viewing wildlife in an area of a wildlife and waterfowl
refuge intended for such viewing.
o . . .
(5) The ecological intrusion of the project substantially
diminishes the value of wildlife habitat in a wildlife and
waterfowl refuge adjacent to the project, substantially
interferes with the access to a wildlife and waterfowl refuge
when such access is necessary for established wildlife
migration or critical life cycle processes, or substantially
reduces the wildlife use of a wildlife and waterfowl refuge.
23 C.F.R. § 774.15(e)(1)(v), (e)(5). Midewin is property
subject to section 4(f):
The largest public open space in northeastern Illinois,
Midewin National Tallgrass Prairie is on land once used as
the Joliet Army Arsenal Plant and is now managed for National
Forest System purposes. Midewin National Tallgrass Prairie is
partially open to the public for
various recreational activities. The Midewin National
Tallgrass Prairie's management plan indicates that the
full property is designated a " prairie under
construction." Since portions of the property are open
for public recreational activities and areas are planned for
future preservation and wildlife refuge, the Midewin National
Tallgrass Prairie is considered protected by Section 4(f).
and EIS conclude that the B3 Corridor will not directly use
Midewin. ( See AR1_000550 (" Corridor B3 . .
. would not directly impact southern portions of the Midewin
National Tallgrass Prairie." ).) But they only
tentatively rule out constructive use:
The Midewin National Tallgrass Prairie management plan
indicates the area along IL-53 is located within a
restoration management area. . . . Federal listed species
within Midewin National Tallgrass Prairie are known to be
located further north within the property away from the
working alignment within Corridor B3 . . . , reducing the
potential for proximity impacts. . . . Based on the
information available at Tier One, a constructive use of this
resource is not anticipated. The potential for a constructive
use will be further analyzed in the Tier Two NEPA studies.
( Id. ) In fact, the final EIS expressly states that
the Agencies' determinations as to all 4(f) properties
An evaluation of the proposed project's potential impacts
to Section 4(f) properties is being conducted under §
774.7(e), which allows for a preliminary Section 4(f)
approval for Tier One documents, provided that opportunities
to minimize harm at subsequent stages are not precluded by
decisions made in Tier One. Section 4(f) approval will be
finalized in Tier Two. A preliminary Section 4(f) approval
would be subject to a reevaluation if new or more detailed
information becomes available during the Tier Two NEPA
studies. Feasible and prudent avoidance alternatives, if any,
should be identified, and all possible conceptual planning to
minimize impacts will be discussed in the Tier One NEPA
studies. Further evaluation of measures to minimize harm to
Section 4(f) properties will also occur in the Tier Two NEPA
(AR1_000536-37) Because the documents clearly state that the
4(f) determination with respect to Midewin is not final, it
is not ripe for review under the APA. See 5 U.S.C.
§ 704 (stating that " final agency action" is
subject to APA review); Bennett v. Spear, 520 U.S.
154, 177-78, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) ("
As a general matter, two conditions must be satisfied for
agency action to be considered 'final': First, the
action must mark the consummation of the agency's
decisionmaking process -- it must not be of a merely
tentative or interlocutory nature. And second, the action
must be one by which rights or obligations have been
determined, or from which legal consequences will flow."
) (citations and quotations omitted); Home Builders
Ass'n of Greater Chi. v. U.S. Army Corps of
Eng'rs, 335 F.3d 607, 614 (7th Cir. 2003) (stating
that an action is final when " the agency has completed
its decisionmaking process, and . . . the result of that
process is one that will directly affect the parties." )
reasons set forth above, the Court grants plaintiffs'
motion for summary judgment  and declares that FHWA's
approval of the Tier 1 final EIS and ROD for the proposed new
Illiana Expressway was arbitrary and capricious and in
violation of NEPA. Therefore, the Court remands the Tier 1
final EIS and ROD to the Agencies for further proceedings
consistent with this Memorandum Opinion and Order. Moreover,
the Court grants defendant's motion to strike  the
letter submitted by plaintiff on April 13, 2015  because
it pertains to matters not at issue in this case and strikes
as moot plaintiffs' motion to reassign . This case is
" For major transportation
actions," FHWA is permitted to prepare the EIS in two
tiers. See 23 C.F.R. § 771.111(g).
" The first tier EIS . . . focus[es] on broad issues
such as general location, mode choice, and areawide air
quality and land use implications of the major alternatives.
The second tier . . . address[es] site-specific details on
project impacts, costs, and mitigation measures."
Though plaintiffs have moved for summary
judgment, in the administrative review context, a "
motion for summary judgment is simply the procedural vehicle
for asking the judge to decide the case on the basis of the
administrative record." Hunger v. Leininger, 15
F.3d 664, 669 (7th Cir. 1994).