Latin Americans for Social & Economic Development v. Administrator of the Federal Highway Administration
858 F. Supp. 2d 839
E.D. Mich.2012Background
- This is an APA NEPA challenge to FHWA's January 4, 2009 ROD for the DRIC project and Delray crossing in Detroit, involving multiple plaintiffs and the Ambassador Bridge operator.
- DRIC planning began in 2001, with a 2008 FEIS selecting Delray as preferred crossing and a 2009 ROD approving it; nine brand-new crossing alternatives and a No-Build option were analyzed.
- The record shows extensive interagency cooperation, public involvement, and a broad set of technical reports supporting the evaluation of alternatives.
- The Bridge Company challenges the selection of Delray, arguing Second Span, No-Build, and Canadian review were improperly evaluated or foreclosed improperly.
- LASED and others argue environmental justice concerns in Delray and that non-highway options (e.g., rail) should have been given greater weight; Amicus Dietrich Bergman raises intermodal concerns.
- Defendants contend the FHWA conducted a reasoned, hard-look NEPA review, including a robust alternatives analysis and a comity-based Canadian review, with reasonable tradeoffs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the range of alternatives reasonably considered? | Bridge Co. argues Second Span and No-Build were improperly treated. | FHWA exercised a rational, comprehensive evaluation of 37 illustrative alternatives and rejected flawed options. | Yes; FHWA's consideration was rational and not arbitrary. |
| Did Canada’s review process affect NEPA compliance? | FHWA abrogated Canada’s review and ignored NEPA in Canadian process. | Canada reviewed its side under Canadian law; comity deference applies; US NEPA does not govern Canada’s process. | Canada review respected; no NEPA defect from Canadian process. |
| Was the No-Build analysis properly considered? | FHWA failed to seriously consider No Build as a benchmark. | No Build defined as status quo; Second Span analyzed as variation; substantial hard look at impacts performed. | Yes; No Build was properly considered and used as a baseline. |
| Was the Second Span improperly eliminated due to franchise rights? | Elimination encroached on Bridge Company's franchise/rights. | Franchise rights are not NEPA concerns; rights settlement with Canada irrelevant to DRIC NEPA. | Yes; the elimination had a rational basis; not a NEPA violation. |
| Was the Purpose and Need supported, including traffic and redundancy? | FHWA methodology flawed; no investment-grade forecast; redundancy not supported. | Traffic models, investment-grade forecast distinction, and redundancy justification are within reasonable discretion and supported by record. | Yes; Purpose and Need deemed reasonable and adequately supported. |
Key Cases Cited
- Vt. Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978) (NEPA review limited; hard-look, not de novo)
- Marsh v. Oregon Natural Resources Council, 490 U.S. 360 (1989) (hard look standard; deference to agency judgment)
- Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971) (thorough, probing review of agency decision)
- Mason County Medical Ass’n v. Knebel, 563 F.2d 256 (6th Cir.1977) (NEPA hard look; deference to agency discretion)
- Beshear v. Alexander, 655 F.2d 714 (6th Cir.1981) (feasibility/abuse of discretion standards for alternatives)
- Summers v. Earth Island Inst., 555 U.S. 488 (2009) (standing and nexus concerns; ecological challenges)
- Sierra Club v. Slater, 120 F.3d 623 (6th Cir.1997) (NEPA evaluation and scope)