Environmental Law and Road Widening: A New Ruling in Wisconsin

A federal district court in Wisconsin recently ruled that Wisconssin highway officials failed to prepare an adequate environmental impact statement about a proposed highway widening in Milwaukee.  

The National Environmental Policy Act (NEPA) requires government agencies to issue an environmental impact statement (EIS) for every federal action significantly affecting the environment.  In the EIS, agencies must describe the environmental results of the proposed action, and discuss reasonable alternatives to such an action.  The EIS requirement does not prevent government from engaging in environmentally harmful actions; however, it does ensure that government knows (and is willing to disclose to the public) the environmental consequences of its actions. 

In the Wisconsin case (MICAH v. Gottlieb), the court suggested that an EIS was inadequate for the following reasons:

1.  The EIS failed to consider the environmental results of expanding highway capacity in a region that had been reducing its transit service for a decade.  The agency thus must consider such impacts, and must discuss less environmentally harmful alternatives such as increasing transit service.  However, the agency does not actually have to adopt such an alternative- just discuss the alternatives   I note that this ruling is rather narrow, because it does not apply to cities that have increased transit service.

2. The government's assessment of the highway project's air quality impacts assumed that transit service would increase- an assumption not borne out by the facts.  Thus, the government's EIS was deficient.  Again, this ruling is quite narrow, since it is based on (1) the agency's willingness to assume that transit service would increase and (2) the lack of evidence for this assumption. 

3. The failure to include the impacts of highway projects on suburban sprawl.  In particular, the court urged the agency to consider not just the impacts of the project at issue, but the "cumulative impact" of both this project and other highway-widening projects.  This portion of the decision is perhaps the broadest; it tells us that if a government agency is widening numerous highways, it cannot just analyze one project at a time, but must address the collective impacts of all projects.

Having said that, this is still a fairly narrow ruling; it seems to apply to a situation where government agencies (1) are engaged in numerous highway-widening projects, (2) are cutting public transit service at the same time, and (3) fail to discuss (1) and (2) in their EIS.  Moreover, the court is not likely to halt the project for good, but to require the government to draft a new EIS addressing these factors and their environmental impact.