Hoosier Environmental Council v. United States Army Corps of Engineers
722 F.3d 1053
7th Cir.2013Background
- Federal, state, and local agencies proposed completing I-69 by building a new direct interstate segment between Indianapolis and Evansville; section 3 (26 miles) was constructed and is at issue.
- The Army Corps of Engineers issued a Clean Water Act §404 permit allowing wetland fills and six stream crossings in section 3; plaintiffs challenged only the wetlands/stream-fill aspects under §404.
- Plaintiffs argued the Corps should have treated the entire direct-route project (all six sections) as the unit of analysis and rejected it in favor of upgrading the existing indirect route (Route 41) as a practicable, less-damaging alternative.
- Agencies conducted a two-tier NEPA/Tiered EIS process: Tier I selected a 2,000-foot corridor (direct route preferred); Tier II addressed alignments and wetland impacts section-by-section; Corps relied on Tier I/Tier II analyses in permitting section 3.
- The district court granted summary judgment to the defendants; plaintiffs appealed. The Corps analyzed alternatives and public-interest factors for section 3 and required wetland mitigation/recreation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of Corps' duty to consider practicable alternatives under §404 | Corps had to compare the entire direct route to the indirect route and could not limit analysis to one section; indirect route was practicable | Corps may rely on Tier I corridor decision and need only evaluate practicable alternatives relevant to the specific permit (section-level alignments or no-build) | Corps properly relied on Tier I/Tier II analyses; need not re-evaluate whole-route practicability when another agency already performed responsible analysis |
| Whether the indirect route was a "practicable alternative" | Indirect (upgrade Route 41) was cheaper and environmentally superior and met overall project purposes | Indirect route failed to meet overall project purposes (shorter route, access, accident reduction); Corps could accept FHWA/INDOT determinations | Tier I analysis reasonably found indirect route impracticable; Corps permissibly relied on that finding |
| Improper segmentation / piecemeal analysis of environmental impacts | Section-by-section permitting improperly segmented cumulative impacts of whole project | Tiering/sectioning was reasonable and necessary; Tier I assessed corridor-level wetlands and Tier II analyzed site-specific impacts | Segmenting into Tier I/Tier II and section-by-section permits was permissible; not improper segmentation here |
| Adequacy of Corps' public-interest review under 33 C.F.R. §320.4 | Corps failed to perform a public-interest analysis of the entire project and thus could not conclude section 3 was in the public interest | Corps weighed numerous public-interest factors for section 3 and reasonably relied on the highway agencies' broader NEPA analyses | Corps conducted a sufficiently detailed public-interest analysis for section 3 and its reliance on other agencies' studies was reasonable |
Key Cases Cited
- Decker v. Northwest Environmental Defense Center, 133 S. Ct. 1326 (2013) (mootness requires impossibility of effective relief)
- Klemme v. Sierra Club, 427 U.S. 390 (1976) (permissible administrative tiering on complex projects)
- United States v. Alaska, 503 U.S. 569 (1992) (regulatory public-interest requirements interpreted literally)
- Van Abbema v. Fornell, 807 F.2d 633 (7th Cir. 1986) (Corps may rely on applicants’/consultants’ submissions and need not perform independent investigations)
- Hillsdale Environmental Loss Prevention, Inc. v. U.S. Army Corps of Engineers, 702 F.3d 1156 (10th Cir. 2012) (remedies related to unlawful wetlands fills can include restoration injunctions)