Federal judge hears arguments in the Bigelow Gulch Road expansion controversy.
By Tim Connor
Sixteen months after they filed suit to force the Federal Highway Administration (FHA) to conduct a full environmental review of a hotly contested road expansion project in east Spokane county, Don Hamilton, his partner Lorna St. John, and many of their neighbors in the Orchard Prairie Protection Association got to see and hear their case argued this morning before Federal District Court Judge Robert H. Whaley.
While Judge Whaley said he would need until next week to issue his ruling, the association members on hand this morning were noticeably upbeat about a hearing in which the veteran judge clearly zeroed in on central tenets of the National Environmental Policy Act (NEPA). NEPA, which is now forty years old, is arguably the central pillar of American environmental law. It requires that federal projects and decisions affecting environmental quality be adequately studied to determine their impacts. It also requires evaluation of alternatives and mitigation measures. As he listened and reacted to the arguments before him this morning, Judge Whaley spoke fluidly about the purposes of NEPA and how he thought it applied to the $52 million Bigelow Gulch Road project
After Judge Whaley invited him to “kick the football” in going first, Center for Justice attorney Rick Eichstaedt opened by laying out the association’s case that an environmental assessment (EA) prepared by the FHA was far too superficial given the requirements of NEPA. Eichstaedt drew on case law and the agency’s own internal reviews to argue that the road expansion project is of such a magnitude that a full-fledged environmental impact statement (EIS) was required by NEPA, rather than the more perfunctory EA.
But Eichstaedt’s main argument was qualitative. What it boiled down to, he told Judge Whaley, was the question: “Did they (FHA) take their requisite ‘hard look’ at what the environmental impacts of this project are?”
Eichstaedt argued they hadn’t, and several times quoted from the agency’s internal critiques that bluntly indicated the environmental assessment might not pass muster if the document were challenged in court. The sprawling length of the EA for the project–which totaled hundreds of pages–was itself a strong signal that a full EIS should have been done, Eichstaedt said. But he also cited specific sections of the analysis–namely, wetlands, noise, aesthetics, and land use–where he argued that the analysis was far too cursory given the NEPA requirements.
“It’s clear they had a responsibility to conduct a cumulative impacts analysis for land use,” Eichstaedt said, citing one example, and yet the agency’s limited the review to a mere traffic analysis instead.
Assistant U.S. Attorney Andrew Biviano began his rebuttal by displaying newspaper articles published by the Valley Herald in 1995 and 1996 because, he said, the subject of the articles cut to the heart of the controversy. One of the articles quoted an old-timer (it was actually plaintiff Lorna St. John’s father) who told the paper how traffic on Bigelow Gulch Road was so sparse when the road opened in 1940 that local residents would look for cars and wave at individual drivers.
What it showed, Biviano said, is “how much things have already changed from that time” to where now over 20,000 vehicles a day (12,000 west of Argonne and more than 9,000 on the eastern portion) use the road. Biviano then read from the second article, headlined “Deadly Bigelow Gulch Road,” to make the point that the road is currently unsafe and badly in need of the subject improvement project.
But on that point, Whaley interjected to say the issue presented before the court was not whether the road needed to be improved, but whether the FHA had complied with NEPA before approving the project.
“As we talk about impacts,” Biviano replied, “we also have to talk about the purpose and needs of the project throughout.”
“It doesn’t mean you don’t have to file an EIS if it’s required,” the Judge replied.
From there Biviano said he agreed with Eichstaedt, that the law required the agency to show that it had taken a “hard look” at the environmental consequences. He also asked the Judge to put Eichstaedt’s criticism about the land use analysis in the broader context of state and local land use planning requirements. 
Here, Biviano’s argument was that there were many other factors that affect urban sprawl and land use designation changes than expanding road capacity in an area.
It’s “balanced by current comp plan policies,” Biviano explained. “A lot more goes into changing land uses than roads” and that under the state’s Growth Management Act “changing the urban boundary is not a simple process.”
Biviano also insisted that the internal agency critiques done by an FHA lawyer were actually a good sign, not the evidence of an inadequate document as Eichstaedt had made them out to be.
“On the contrary,” Biviano said, “it [the critique] should be held up as exactly the best practices for an agency,” adding later that “this is the quintessential definition of a ‘hard look’.”
Biviano told Judge Whaley the criticisms were to the first draft of the environmental assessment and that the criticisms had been addressed by the time the document was finalized.
“It’s pretty clear they’ve all been addressed,” he told the Judge. “There’s nothing that was a complete miss by the agency.”
In his brief rebuttal, Eichstaedt insisted that his clients were not against all measures that would make the road safer and that they would likely favor less intrusive changes, including lower speed limits. What their main objections were is that the project was designed without adequate analysis of its long-term effects on the environment.
Contrary to Biviano’s statement that the agency critique applied only to a first draft of the environmental assessment, Eichstaedt said, “not a whole lot has changed.”
By example he focused, again, on the lack of a land use cumulative impacts analysis and said it was “disingenuous” for the agency to say it was complying with NEPA at the same time it was explaining that a cumulative impacts analysis would “take a lot of time and money. That’s not an excuse.”
As he brought the hearing to a close, Judge Whaley said he wanted to make a couple points. The first was that the practice of using an agency lawyer to critique an agency’s working drafts “is a good one that should not be discouraged” even though the results of the critique become available to those who might challenge the final decision. The second, he said, is that it would not be “good judicial gloss” if the outcome of cases like this were to result in less thorough environmental assessments (because adversaries would use more thorough environmental assessments to support arguments that a full EIS should have been done.)
“If the environmental assessment is appropriate,” the Judge said, “it should be as well-documented as it can be, and to impose some brevity on it is not good public policy.”
But, ultimately, Judge Whaley said, the outcome of his decision was going to depend on a close look at the record: “Does it [the record] establish for the court that they [FHA] should have done an EIS? And they didn’t.”
He ended the hearing by offering a short tutorial on the purposes of NEPA and the Congressional intent behind the law to ensure agencies carefully looked at the long-term consequences of their actions. By example, he referenced federal dams built on the Columbia River before NEPA came into existence and noted the devastating effects the dams have had on the region’s once prodigious wild steelhead and salmon runs.
“I’ve always wondered,” Judge Whaley said, whether NEPA would have resulted in engineering modifications to Grand Coulee dam and other Pacific Northwest dams that might have at least resulted in less severe harm to the Columbia River’s wild fish stocks.
“So that’s what we have,” he said, returning to the question at hand. He said he didn’t quarrel with the agency’s arguments about the safety issues being addressed by the project, “but the real question is whether an environmental assessment was sufficient.”
–CFJ
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