THE NATURAL LAWYER

TRANSPORTATION RESEARCH BOARD

# COMMITTEE ON ENVIRONMENTAL ISSUES IN TRANSPORTATION LAW (A4006)

VOLUME 9, NUMBER 2 RICHARD CHRISTOPHER, EDITOR

JANUARY, 2001 312/793-4838 PHONE

312/793-4974 FAX

E-MAIL ChristopherRA@nt.dot.state.il.us

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CLEAN AIR ACT CITIZEN SUIT PROVISION NOT AVAILABLE TO CHALLENGE
CONFORMITY DETERMINATION

A coalition of environmental groups brought suit to challenge a
determination of conformity. The determination was made by the
Sacramento area MPO and was approved by FHWA and FTA. The government and
a coalition of road builders challenged the jurisdictional basis of the
complaint. The plaintiffs based their challenge on their belief that the
MPO had overestimated the effectiveness of the I/M program. Plaintiffs
were challenging funding for many of the projects funded under the long
range plan and the TIP. The Court determined that a conformity
determination was not "an emission standard or limitation" and was
therefore not amenable to suit under the Clean Air Act citizen suit
provision. The Court characterized plaintiffs' position as a concern
over future violations of the air quality standards and concluded that
the citizen suit provision of the Clean Air Act was only available to
address past or current violations. *Environmental Council of Sacramento
v. Rodney Slater, et al.,* E.D. Cal. #CIV.S-00-409 LKK/DAD, 11/6/00

## CONGRESSIONAL RIDER EXEMPTS PA HIGHWAY PROJECT 

**FROM ALL ENVIRONMENTAL LAWS**

Penn DOT and FHWA approved the construction of an eight mile connection
between two expressways along a ridge. A coalition of conservation
groups sued claiming irreparable environmental damage. State and Federal
defendants moved for dismissal because of the following rider attached
to an appropriations bill by Congress:

> "(o) CLARIFICATION. --Notwithstanding any other provision of law, the
> Secretary shall approve, and the Commonwealth of Pennsylvania is
> authorized to proceed with, engineering, final design, and
> construction of Corridor O of the Appalachian development highway
> system between Bald Eagle and Interstate Route 80 (as redefined by
> this Act). All records of decision relating to Corridor O issued prior
> to the date of enactment of this Act shall remain in effect."

The Court determined that it would employ the same test whether the
rider was characterized as an exemption or a repeal by implication. The
language requiring that the highway project be approved as it existed on
the day Congress acted is plain. The route along the ridge was
established in a record of decision which predated the Congressional
action. Congress made that record of decision its own legislative
decision and therefore removed it from review by the Courts. *The Bald
Eagle Ridge Protection Association , Inc., et al. v. Mallory, et al.,*
119 F.Supp.2d 473, 2000 U.S. Dist. LEXIS 15641 (M.D. Pa 2000)

## NJDOT CAN CONDEMN PROPERTY FOR MITIGATION

In order to compensate for impacts to shallow water habitat from a
highway improvement, New Jersey selected a mitigation site along the
Delaware River. The site was approved by the Army Corps of Engineers and
the New Jersey Dept. of Environmental Protection. The property owner and
the local government challenged acquisition of the property because
NJDOT was not given explicit authority to condemn for environmental
mitigation. The Court looked at all of NJDOT's explicit powers and
concluded that it could not carry out its statutory duties in this case
unless it acquired this site. The Court concluded that condemnation was
authorized. *The State of New Jersey v. Trap Rock Industries, Inc.et
al.,* 331 N.J. Super. 258; 751 A. 2d 633; 2000 N.J. Super. LEXIS 213.

## EXPANSION OF MAUI AIRPORT UPHELD

Kahului, the second largest airport in Hawaii, had a main runway long
enough to land big airplanes but not long enough for the bigger planes
to take off. An extension from 7000 to 9600 feet was proposed. Objectors
claimed that the additional flights enabled by the runway extension
would introduce alien species which would disrupt the ecology of a
nearby national park. The Final EIS concluded that the project by itself
would have an insignificant impact on the problem of alien species
introduction, but because this was a Statewide problem, the project
could have a significant cumulative impact. The Court concluded that the
analysis of this issue in the FEIS was adequate considering the
speculative nature of the extent of the project\'s contribution to the
problem. The Court also upheld FAA's determination that the project's
impact on alien species did not constitute "use" of the nearby park
under Section 4(f). The dissent felt that the FEIS did not give enough
account to additional traffic from Asia that would result from the
project and concluded that the analysis of the alien species issue was
not adequate. *National Parks & Conversation Association et al. v. U.S.
Dept. of Transportation,* 222 F.3d 677 (9^th^ Cir. 2000)

## SURFBOARD DECISION NOT TO DO EA ON RAIL LINE 

**WITH RESUMED SERVICE UPHELD**

After 20 years of no service on a rail line that runs across Missouri,
the Union Pacific sold the line. The buyer proposed 10 trains per week
and sought approval from the Surface Transportation Board. The Board
voted to exempt the transaction from full review and ruled that no
environmental assessment was necessary. Two towns along the line sued
claiming that the Board was not reading its own rules correctly on when
to do an assessment. The Court ruled that the towns had standing because
the assessment, if one had been done, would have covered impacts in the
two towns. The Court then reviewed the Board's regulation. The
regulation said that an EA is required when the acquisition results in
an increase in (1) rail traffic of at least 100%, (2) at least eight
trains per day, or (3) railyard activity of at least 100%. The Board
said that the first and third criteria did not apply because "when a
line currently carries no traffic, any resumption of service, no matter
how small, represents an increase mathematically of infinite magnitude."
This exercise in theoretical mathematics was upheld by the Court. The
Court acknowledged that calculating an increase in traffic when the base
is zero requires division by zero or multiplication by zero, depending
on how you perform the calculation. The Court went on to hold that it
either makes no sense to divide by zero or the answer is zero. The Court
affirmed the Board's decision to treat the acquisition as similar to
resumption of service on an abandoned line. *Lee's Summit, Missouri et
al. v. Surface Transportation Board, et al.,* 231 F.3d 39 (D.C.Cir.2000)

## CLEAN WATER ACT CITIZEN SUIT NOT AVAILABLE TO ENFORCE 404 PERMIT

In 1963 the Boeing Company leased 100,000 acres of land from the State
of Oregon for development of a space park. When the park did not
materialize, the land was developed for irrigated agriculture. The
development required pumping facilities to divert water from the
Columbia River. The pumping facilities required permits under Section
404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act.
An environmental group filed suit against the Corps of Engineers and
private parties claiming that three conditions of the permit were not
being met. The Court had to determine whether the plaintiffs were
enforcing an "effluent standard or limitation" as that term is defined
in the Clean Water Act. Since the permit was issued under Section 404 of
the Clean Water Act and was not a NPDES permit issued under Section 402
of the Clean Water Act, the citizens suit provision was not available to
the plaintiffs. The Court also held that the Corps was immune from suit.
*Northwest Environmental Defense Center v. United States Army Corps of
Engineers, et al.,* 118 F.Supp.2d 1115 (D.Or.2000)

## SUIT FILED OVER FEIS FOR NEW TACOMA, WA BRIDGE

Submitted by Robert Rutledge, FHWA Senior Counsel, San Francisco, CA

On October 2, 2000 a suit was filed in U.S District Court over the
approval of a new bridge which is intended to parallel the existing
crossing over the Tacoma Narrows. The project also includes road
improvements to Washington State Route 16. The bridge, a toll facility,
has already been approved for TIFIA credit assistance in the amount of
\$270 million. The suit is primarily concerned with impacts on the Gig
Harbor peninsula from traffic diversions, the loss of park and ride
spaces, the impact of toll plaza operation on HOV travel time and
safety, and the impact of toll discounts. *City of Gig Harbor v. Gene
Fong, FHWA Washington Division Administrator, et al.,* Western District
of Washington #C00-5575 FDB

## NEW EXECUTIVE ORDER ON INDIAN TRIBAL IMPACTS

On November 6, 2000 President Clinton signed Executive Order No. 13175
requiring consultation and coordination with Indian tribal governments
when the Federal government adopts "policies that have tribal
implications." The Order appears to cover things like regulations and
proposals for legislation and does not appear to be concerned with
projects. The Order lays down principles for policies to assure that
they treat Indian tribes on a government to government basis and do not
pass on unfunded mandates. When policies have tribal implications, they
shall be accompanied by a "tribal summary impact statement."

## JAPANESE GOVERNMENT ORDERED TO PAY IN SUIT OVER HIGHWAY POLLUTION

From a story in the November 29, 2000 *Chicago Tribune* by Uli Schmetzer

The Nagoya District Court in central Japan has ordered the Japanese
government to keep air pollution at acceptable levels for residents who
live near highways. The Court reviewed evidence that the number of
chronic bronchial, asthma, and emphysema cases in Nagoya had
dramatically increased since National Highway #23 was constructed. The
verdict, \$161,000 for three surviving plaintiffs, was the second time
this year a judge ruled in favor of residents suing the government over
pollution, but it was the first time highway pollution was determined to
be the hazard. The suit was part of a larger complaint against
industrial sources of pollution in Nagoya. The Court also ordered 10
companies to pay \$2.6 million to 110 individuals.

## CHAIR'S CORNER

By Helen Mountford, FHWA San Francisco

Helen.Mountford@fhwa.dot.gov

The new year promises interesting times for environmental lawyers who
represent transportation agencies. We can expect challenges to projects
based upon such diverse topics as transportation models, the Clean Water
Act, the adequacy of cumulative impacts analysis, and inadequate air
quality conformity. Challenges to transportation models attempt to
discredit the purpose and need for a project as well as the adequacy of
the proposed project to remedy current and projected system
inadequacies. Challenges under the Clean Water Act seek to force the
Environmental Protection Agency (EPA) to stop or veto projects and it
appears the EPA has taken it upon itself to hinder project development
in many parts of the country by tightening its expectations of what
constitutes an adequate discussion of the cumulative impacts of
projects. And, of course, successful challenges under the Clean Air Act
have the potential to halt all new capacity projects in a particular
area. Transportation lawyers with responsibility for the environmental
aspects of project development need highly specialized knowledge and
skills in many diverse areas. We are rarely bored.

The TRB committee on Environmental Issues in Transportation Law is here
to help transportation lawyers gain the knowledge we need and to hone
the skills we use, both during project development and project defense.
We also try to make our clients aware of issues they need to pay
particular attention to during project development. Generally, our
programs at the TRB July Legal Workshop are aimed towards attorneys and
seek to fulfill our need for continuing legal education on environmental
issues. Our programs at the January TRB Meeting are geared toward being
of assistance to our clients. *The Natural Lawyer* is designed to keep
us all aware of current events and issues. Neither our programs nor *The
Natural Lawyer* can happen, however, without the active participation of
the members and friends of the committee who report on new and
interesting developments and who plan and organize our sessions.

I hope to see all of you this coming July in Boston at the Legal
Workshop and look forward to working with you as we face the interesting
challenges of this new year.

## NEXT COPY DEADLINE IS MARCH 16, 2001

Please submit your notes and articles for the April, 2001 *Natural
Lawyer* by 5:00 p.m. on Friday, March 16, 2001. If you use the mail,
send to Rich Christopher, Illinois DOT, 310 South Michigan, Room 1607,
Chicago, IL 60604. If you use the FAX, send to 312/793-4974. E-mail is
available at ChristopherRA@nt.dot.state.il.us