In an opinion that should bolster the use of tiered studies under the National Environmental Policy Act ("NEPA") for highway and high-speed rail projects, the U.S. District Court for the Western District of Virginia has issued an opinion upholding the use of a tiered NEPA process for improvements to the I-81 corridor in Virginia. Shenandoah Valley Network v. Capka, 2009 WL 2905564 (W.D. Va. Sept. 3, 2009) ("I-81 decision").1 The Federal Highway Administration (FHWA) and the Virginia Department of Transportation (VDOT) elected to use a tiered NEPA study to determine the types of improvements needed along the 325-mile long I-81 corridor in Virginia in order to meet the projected need for additional capacity and improved safety on the highway through the year 2035.
FHWA and VDOT implemented the tiered NEPA study through a "streamlining agreement." The streamlining agreement established the decisions that would be made at each tier, timelines for preparing the analyses and the approvals to be granted at specific intervals throughout the environmental review process. In approving the Tier 1 Final Environmental Impact Statement (FEIS) and Record of Decision (ROD), the court noted that the streamlining agreement established that the Tier 1 process would select the types of improvements needed to meet the purpose and need of the NEPA study, and that the subsequent Tier 2 process would involve approval of the design features of the improvement concepts approved in Tier 1. The Tier 1 ROD contained six separate decisions, including the type of improvements to be considered in the Tier 2 studies, as well as determining eight sections of independent utility that would be separately analyzed in the Tier 2 process.
Plaintiffs' primary challenge to the Tier 1 ROD consisted of a claim that approval of the Tier 1 ROD was premature. Plaintiffs alleged that FHWA should have delayed issuing the ROD until Virginia had completed a separate feasibility study of possible rail improvements in the I-81 corridor that would divert long-haul through-truck freight traffic to intermodal rail. The court rejected this claim, finding that NEPA does not require a federal agency to refrain from approving a project until a state agency completes a separate study of a related issue. The court noted that the Tier 1 FEIS contained an adequate analysis of the possible traffic impacts resulting from rail freight improvements in the I-81 corridor and that the FHWA satisfied its NEPA obligations by disclosing that the separate study was underway.
The court also upheld the use of the 180-day statute of limitations established in 23 U.S.C. ยง 139(l) for highway and transit projects. The court noted that finality of Tier 1 decisions "is crucial to permit timely implementation of the much-needed independent safety and operational improvement projects that also have been advanced to Tier 2." (I-81 decision at *13). The 180-day statute of limitations, however, is available only for highway and transit projects approved by FHWA or the Federal Transit Administration. Rail projects approved solely by the Federal Railroad Administration (FRA) remain covered by the six-year statute of limitations generally applicable to civil actions against federal agencies.
Together, the I-81 decision and the recent decision in Hoosier Environmental Council v. U.S. Department of Transportation, 2007 WL 4302642 (S.D. Ind. Dec. 10, 2007)2 supply strong support for the use of tiered NEPA studies for large linear projects such as highways and high-speed rail projects.
These two decisions have particular significance for states seeking federal grants for high-speed rail projects under the American Recovery and Reinvestment Act. The FRA has clearly indicated, in both its long-standing NEPA regulations (64 Fed. Reg. 28,545) and its recently published guidance entitled "Compliance with the National Environmental Policy Act in Implementing the High-Speed Intercity Passenger Rail Program (Aug. 13, 2009) ("August 13 Guidance"),3 that the use of a tiered NEPA study—called "Service NEPA" in the August 13 Guidance—is the preferred method of NEPA compliance for rail corridor improvement projects. FRA states that Service NEPA is an "essential first step" in determining the types of improvements needed to implement high-speed intercity passenger rail service. Service NEPA, or, a Tier 1 NEPA study, would address "the broader questions relating to the type of service(s) being proposed, including cities and stations served, route alternatives, service levels, types of operations..., ridership projections and major infrastructure components." August 13 Guidance at 2.
These recent court decisions endorse the concept of tiering, yet also underscore the fact that a successful tiered NEPA study must be carefully planned to ensure compliance not only with NEPA, but also with a range of other federal and state environmental laws, including the Endangered Species Act, the National Historic Preservation Act, the Clean Water Act and Section 4(f) of the Department of Transportation Act.
Conclusion
As indicated by the I-81 decision, early coordination between
the rail project sponsor and the FRA over the scope of the
decisions to be made in the Tier 1 NEPA study will help ensure a
more defensible final Tier 1 decision and will allow for a smooth
transition to the necessary Tier 2 studies. FRA's August 13
Guidance suggests that early coordination with FRA staff can allow
project sponsors to be in a better position to successfully obtain
future federal funding likely to be available for project
implementation.
Footnotes
1 http://www.perkinscoie.com/files/upload/09-10_ENR_ShenandoahDecision.pdf
2 http://www.perkinscoie.com/files/upload/ENR_09-10_I-69Tier1Decision.pdf
3 The August 13 Guidance can be found at the following link: http://www.fra.dot.gov/Downloads/RRDev/hsipr_nepa_guidance_081309Final.pdf.
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