HARRISBURG – An environmental nonprofit group has sued a component of the U.S. Department of Transportation and its chief, over claims that the highway agency failed to conduct environmental impact reports for a proposed highway extension, as required by the National Environmental Policy Act.
Lower Susquehanna Riverkeeper Association of Wrightsville filed suit in the U.S. District Court for the Middle District of Pennsylvania on Feb. 27 versus the Federal Highway Administration and its Administrator, Shailen Bhatt, of Washington, D.C.
“This action concerns the proposed Eisenhower Drive Extension Project (EEP) located in York and Adams Counties, Pennsylvania that would extend Eisenhower Drive from its current terminus via a new roadway through Conewago Township. The U.S. Department of Transportation Federal Highway Administration and the Pennsylvania Department of Transportation Engineering District 8-0 issued an Environmental Assessment in which FHWA made a Finding of No Significant Impact (FONSI) regarding the EEP,” the suit states.
“The FHWA’s FONSI violates the National Environmental Policy Act (NEPA), in that the FHWA is engaging in a major federal action which significantly impacts the quality of the environment without the preparation of an Environmental Impact Statement (EIS) as required by NEPA. The action is controversial in that FHWA proposes to use federal funds to benefit private landowners in a way which has harmful effects on the integrity of the surrounding area and its natural resources. For these reasons, the FHWA’s action is arbitrary, capricious, contrary to law, and therefore in violation of the Administrative Procedure Act.”
The suit continues that per the terms of NEPA, such an Environmental Impact Statement is mandated to be a part of any federal agency project which will significantly affects its nearby human environment.
“In November 2014, PennDOT re-initiated the EEP involving extending Eisenhower Drive through Conewago Township in York and Adams Counties, Pennsylvania. On Jan. 18, 2022, defendants proposed a draft EA for the EEP. The draft EA proposed a ‘preferred option’ detailing miles of new highway construction, which will affect the surrounding acres of farmland, waterways, wetlands and historic properties, including, but not limited to, the Poist Chapel Farm, the Devine Chapel Farm and the Henry Hostetter Farm,” the suit says.
“On Feb. 23, 2022, a joint public hearing was held at the Southeastern Adams Volunteer Emergency Services facility. On April 28, 2022, plaintiff notified defendants of their NEPA violation via letter and listed serious material concerns to defendants’ draft EA. Plaintiff’s letter emphasized the need for an EIS based on the environmental impacts conceded by the FHWA in the draft EA. Further, plaintiff’s letter outlined several serious environmental concerns and reasonable alternatives that were not addressed in the draft EA.”
Such environmental concerns were the following:
• Depressions and sinkholes throughout the project area, which creates a concern of stormwater collection affecting the accelerated rate of sinkhole development;
• The lack of assessing groundwater and well water contamination;
• The myopic view of the nearby streams and wetlands did not consider the cumulative effects of the Lower Susquehanna River and Chesapeake Bay watershed, including but not limited to: Increasing pollutant-laden runoff into nearby streams, removing or interrupting wetlands’ natural ability to remove pollutants through physical, chemical, and biological processes, erosion control, flood abatement, habitat enhancement, water supply, recreation, partnerships, education, and increasing compensatory mitigation;
• The bisecting of apparent wildlife corridors, affecting threatened and endangered species, as well as fish communities’ natural migration;
• FEMA floodplain zones classified as both A and AE need to be identified and evaluated, considering the high-density residential areas downstream whose homes and communities have a high probability of being adversely impacted, among others.
“On Sept. 23, 2022, the FHWA issued a Final Section 4(f) Evaluation determining that ‘all possible planning has been undertaken to minimize harm to the Section 4(f) properties.’ On Oct. 20, 2022, plaintiff submitted to defendants the analysis of Charles Dutill, P.E. Mr. Dutill’s analysis suggested several problems with the draft EA, including the failure to consider various alternatives to the proposed EEP,” the suit adds.
“On Jan. 3, 2023, the FHWA issued a FONSI for the EEP. In the draft EA and FONSI, and despite multiple concerns raised by plaintiff and the public, FHWA concluded that the EEP would have no significant impact to the human environment. To date, no EIS has been performed by the defendants.”
For one count of violating NEPA, the plaintiff is seeking:
• A declaration that the defendants have violated NEPA by issuing a Finding of No Significant Impact and failing to prepare an Environmental Impact Statement for the Eisenhower Drive Extension Project, a major federal action that will have significant environmental consequences;
• A declaration that the defendants have violated NEPA by failing to conduct an Environmental Impact Statement for the Memorandum of Agreement with Public Health Management Corporation;
• Preliminary and permanent injunctive relief barring defendants from proceeding with the projected outlined in the draft Environmental Assessment of constructing new highway until compliance with NEPA is achieved;
• Costs, reasonable attorney’s fees under the Equal Access to Justice Act or other applicable statutes, and such further relief as this Court deems to be just, proper, and equitable.
The plaintiff is represented by Kenneth T. Kristl of Widener Environmental Clinic, in Wilmington, Del.
The defendants have not yet obtained legal counsel.
U.S. District Court for the Middle District of Pennsylvania case 1:23-cv-00343
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com