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Openlands, Midewin Heritage Ass'n v. United States Department of Transportation

United States District Court, N.D. Illinois, Eastern Division

June 16, 2015

OPENLANDS, MIDEWIN HERITAGE ASSOCIATION, and SIERRA CLUB, Plaintiffs,
v.
UNITED STATES DEPARTMENT OF TRANSPORTATION, et al.,
v.
Defendants, and ILLINOIS DEPARTMENT OF TRANSPORTATION, INDIANA DEPARTMENT OF TRANSPORTATION, Defendant-Intervenors

Page 797

          For Openlands, Midewin Heritage Association, Sierra Club, Plaintiffs: Howard Alan Learner, Jennifer Elyse Tarr, Rachel Leigh Granneman, Environmental Law and Policy Center, Chicago, IL.

         For United States Department of Transportation, Defendant: AUSA, Harpreet Kaur Chahal, United States Attorney's Office (NDIL), Chicago, IL.

         For 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.

         For Indiana Department of Transportation, Intervenor Defendant: Albert M Ferlo, William G. Malley, PRO HAC VICE, Kathleen A. Stetsko, Perkins Coie LLP, Washington, DC.

         For 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, Chicago, IL.

Page 798

         MEMORANDUM OPINION AND ORDER

         HON. JORGE ALONSO, United States District Judge.

         Plaintiffs 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.

         Background

         On June 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.[1] 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.

         After 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.

         When 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. See http://www.cmap.illinois.gov/data/demographics/population-forecast . 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)

Page 799

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 http://www.cmap.illinois.gov/data/demographics/population-forecast .

         NIRPC's 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 http://www.nirpc.org/media/3136/crp_summary_finaldraft_compressed.pdf .

         The 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.)

         In 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.)

         In 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 Policy Act.

(AR3_002569-70.) IDOT responded that " a refined project level forecast [was] being developed." (AR3_002571.)

         After 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 EIS. (AR3_035240.)

Page 800

          In 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." ( Id. )

         On 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 decreases.
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.

(AR1_003729.)

         In July 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.)

         In August 2012, NIPRC submitted the following comments on the DEIS to the Agencies:

Page 801

1.4 Project Need
Third paragraph:
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 study area.
. . . .
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 diminished.

(AR2_005266.)

         On August 28, 2012, CMAP submitted its comments on the DEIS to the Agencies:

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 ...

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