Infra Insight Blog

We report on the result of decisions by the United States Court of Appeals for the 9th Circuit and the United States District Court for  the District of Hawaii that allow the construction of a 20-mile, $5 billion, rail transit project to proceed.  This project will transform the City of Honolulu, which now has some of the worst traffic  in the United States.  Nossaman was counsel to the City of Honolulu in the litigation.

These cases clarify important aspects of the alternative selection process under the National Environmental Policy Act (NEPA) and section 4(f) of the Department of Transportation Act.  More specifically:

• Linking planning and NEPA.   These cases confirm that, under certain circumstances, transportation agencies may rely on the studies and decisions made during the transportation planning process to narrow the range of reasonable alternatives considered in an environmental impact statement (EIS).  Prior to the enactment of MAP-21, applicants for major capital transit project grants (new starts) had to prepare an Alternatives Analysis to demonstrate the need for and financial feasibility of the transit project.  FTA and the FHWA issued guidance on linking the transportation planning process and the NEPA process so as to avoid duplicative analyses in EISs and EA/FONSIs.  The Alternative Analysis was specifically referenced in  this guidance as a way for transit projects to document this linkage. MAP-21 eliminated the requirement that the FTA  prepare the Alternative Analysis, required  FHWA and FTA to more rigorously link planning and NEPA.  The 9th Circuit agreed that the FTA could properly rely on the Alternatives Analysis to to limit the range of alternatives presented in the EIS where the FTA provided guidance regarding the preparation of the Alternatives Analysis and the public was provided an opportunity to comment on the Alternatives Analysis .  This express linking of planning and NEPA should be of considerable benefit in defending focused alternative analyses in the future.

• Extraordinary additional cost alone is sufficient to reject an alternative as imprudent under Section 4(f) of the Department of Transportation Act.  Section 4(f) prohibits the use of land from publicly owned parks, recreational areas, and wildlife and waterfowl refuges, as well as all historic sites, of national, state or local significance, unless the Secretary determines that there are no feasible and prudent alternatives to the use of such lands.  FTA rejected two tunnel alternatives from detailed evaluation in the EIS  because they would have cost an additional $650 million more than the proposed project.  In 2012, The District Court upheld the FTA’s determination that additional cost for the tunnel alternative  rendered the one of the tunnel alternatives as not prudent.  In its February 2014 decision, the District Court upheld the FTA’s determination that the second tunnel alternative was not an avoidance alternative and was not the least harm alternative on cost and other grounds.