Court rules federal, state agencies violated NEPA in approving massive Ill.-Ind. project

By Benjamin Hulac | 06/22/2015 08:02 AM EDT

A federal judge in Chicago ruled last week that state and national transportation agencies violated the law when they approved plans for a controversial toll road to connect Illinois and Indiana.

A federal judge in Chicago ruled last week that state and national transportation agencies violated the law when they approved plans for a controversial toll road to connect Illinois and Indiana.

Judge Jorge Alonso, of the U.S. District Court for the Northern District of Illinois, Eastern Division, ruled against the Federal Highway Administration, the Illinois Department of Transportation (IDOT) and the Indiana Department of Transportation (INDOT).

The decision is a punishing blow to the Illiana Expressway, also known as the Illiana Corridor, a proposed 47-mile road that would stretch east-west between the two states. Illinois Gov. Bruce Rauner (R) delayed the project earlier this month, citing budget constraints.


FHWA violated the National Environmental Policy Act (NEPA) and transportation law when it signed off on an environmental impact study based on different information than the local planning organizations used to assess the Illiana, Alonso ruled Tuesday.

The court found the agencies didn’t adequately consider the "no-build" outcome of not constructing the road, a NEPA violation.

Interstate 80
Does Interstate 80 in Illinois need another highway nearby to relieve congestion? A judge rules no. | Photo by Doug Kerr, courtesy of Flickr.

FHWA’s approval of the environmental study to approve the road was "arbitrary and capricious and in violation of NEPA," Alonso wrote to conclude his decision. He remanded the case to the agencies.

In their separate assessments of the Illiana Corridor, local planning commissions in both states used different population and employment data to forecast traffic levels and the road’s potential impact than FHWA, IDOT or INDOT.

Rather, the three federal and state agencies relied on "market-based" forecasting and downplayed the fact that Will County in Illinois, through which the road would run, had seen flat population growth recently, according to the decision.

NEPA "obligates the agencies" to reconcile their economic projections surrounding the Illiana tollway with the local commissions’ long-term plans, Alonso wrote.

With particular emphasis, Alonso also noted that the agencies justified the road on specious ground: They projected future traffic and population growth for the region based on the assumption that several pending construction projects — including the Illiana Tollway itself, as well as an airport and new housing developments — would be built.

‘A key precedent’?

"As the court points out, they engaged in circular logic," said Howard Learner, executive director of the Environmental Law & Policy Center, in a call from Chicago.

"IDOT’s consultants greatly overstated population growth," said Learner, the lead lawyer for the plaintiffs, Openlands, the Midewin Heritage Association and the Sierra Club.

FHWA and the state agencies can appeal the ruling, begin a new environmental impact study or disband the project, he said.

State attorneys for Indiana are "assessing our options following the judge’s ruling," Will Wingfield, an INDOT spokesman, said in an email. The department "temporarily suspended development of the Illiana in February, and the development continues to be suspended," he said.

"We are still reviewing the ruling and exploring our options at this time," said Guy Tridgell, an IDOT spokesman. Rauner’s office did not respond to a request for comment.

Tension has simmered for years about the tollway, which Illinois state officials had said would cost $1.3 billion. Critics of the projects have said the state’s budget should be used to upgrade or maintain public transportation systems.

In 2011, FHWA gave its notice of intent to prepare an initial environmental impact study for "the Illiana Corridor Project," meant to connect the counties adjacent to I-55 in Illinois and I-65 in Indiana.

The Chicago Metropolitan Agency for Planning (CMAP) and the Northwestern Indiana Regional Planning Commission (NIRPC) had long-term transportation plans and forecasts at that time.

Since 2011, both CMAP and NIRPC voiced their concerns several times about the project.

"By choosing an alignment that is well south of any substantial development, while minimizing property impacts, the corridor has little positive effect on regional mobility and local system deficiencies," CMAP wrote to the agencies in 2012. "It also will likely not generate sufficient revenue to construct and maintain the facility."

U.S. DOT has consistently overestimated how much Americans will drive since the 1990s, and the U.S. Energy Information Administration lowered its nationwide driving forecast last year (ClimateWire, June 5).

"This is a key precedent going forward that hopefully will be looked at by the transportation agencies," Learner said of the ruling last week. "It was a P3 based on overoptimistic population forecasts and overoptimistic traffic demand," he said, using the abbreviation for public-private partnership agreements. "Simply put, the numbers didn’t work."