HARRISBURG – An environmental nonprofit group has motioned for summary judgment in its case against 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 first filed suit in the U.S. District Court for the Middle District of Pennsylvania on Feb. 27, 2023 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 stated.
“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 continued 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 said.
“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 added.
“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.”
Bhatt and the FWHA answered the complaint on May 9, 2023, denying that it violated federal law.
“Federal defendants deny that they violated NEPA; Federal defendants admit that they prepared an EA which resulted in a FONSI; Federal defendants deny that the decision not to prepare an EIS was arbitrary, capricious or contrary to law; and federal defendants deny that the issuance of a FONSI proposes to use federal funds to benefit private landowners in a way which has harmful effects on the integrity of the area surrounding the EEP and its natural resources,” the answer stated.
“Federal defendants deny that the EEP will have significant environmental consequences, that it is highly controversial, or that it has unknown risks. Federal defendants deny that they acted arbitrarily, capriciously, abused their discretion or failed to act in accordance with law.”
Further affirmative defenses counter that one or more of the plaintiff’s claims are non-justiciable or otherwise unripe, that the plaintiff has failed to state a claim upon which relief can be granted and that the plaintiff lacks standing to bring this action.
The very same day, the Commonwealth of Pennsylvania’s Department of Transportation motioned to intervene in the case, a move which was granted by the Court two days later.
PennDOT then filed its own answer in the action on May 15, 2023, where it also denied violating NEPA, generally denied the plaintiff’s allegations and presented five of its own affirmative defenses.
“Plaintiffs have failed to state a cause of action upon which relief may be granted against PennDOT. Plaintiffs lack standing to assert the claims alleged in the complaint. There is no jurisdiction over the causes of action alleged in the complaint,” PennDOT’s defenses stated.
“Plaintiffs’ claims rely on documents that are not part of the record before the Federal Highway Administration at the time of its decision and are therefore outside the Court’s review. PennDOT is an executive department of the Commonwealth of Pennsylvania. The Eleventh Amendment to the United States Constitution bars the assertion in federal court of suits against the Commonwealth of Pennsylvania, its agencies or departments and its state officials.”
UPDATE
On Feb. 27, the plaintiff motioned for summary judgment, on the grounds that the FHWA violated the NEPA and the APA.
“Because NEPA requires government agencies to ‘consider every significant aspect of the environmental impact of a proposed action,’ courts consistently require agencies performing an EA to take a ‘hard look’ at environmental consequences to determine whether or not there will be a significant impact on the human environment. The agency responsible for the proposed action must ‘rigorously explore and objectively evaluate all reasonable alternatives.’ Additionally, the agency must state their reasons for rejecting the alternative proposals prior to moving forward with the project,” the motion stated, in part.
“Under the APA, courts may hold unlawful and set aside agency action, findings and conclusions found to be ‘…arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law.’ An action is arbitrary and capricious if the agency ‘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 so implausible that it could not be ascribed to a difference in view or the product of agency expertise.’ The administrative record here shows FHWA violated NEPA by failing to take the requisite ‘hard look,’ and thus both the EA and FONSI are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law so as violate the APA.”
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 are represented by Richard D. Euliss of the U.S. Attorney’s Office, plus Kenda Gardner and Neal Thomas Brofee of the Pennsylvania Department of Transportation’s Office of Chief Counsel, all in Harrisburg.
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