Highway J Citizens v. United States Department of Transportation, et al.

Wisconsin proposes to renovate

a 7.5-mile stretch of Highway 164 (formerly known as

Highway J), a two-lane road in southern Washington County.

It was built in the 1960s with 5 to 6.5 inches of asphalt, a

pavement expected to last 22 years, and resurfaced in 2000

with another 2.5 to 3.5 inches, expected to extend the road’s

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life by 12 years. The new project entails repaving, reconstruction

near hill crests where drivers cannot see approaching

traffic, widening the lanes, making the shoulders flatter

and two feet wider, improving sight lines, updating guardrails,

adding rumble strips, and introducing turn or bypass

lanes at some intersections. A 141-page environmental report

prepared between 2013 and 2015 concluded that the

renovation would not cause any significant environmental

effects but would reduce the accident and injury rate. (Accidents

are 63% more likely, per vehicle mile traveled, on this

stretch than on Wisconsin’s other rural highways, and crashes

that occur are 45% more likely to produce an injury.)

The Federal Highway Administration approved the environmental

report and federal funding in 2015, finding that it

is unnecessary to prepare an environmental impact statement.

See 40 C.F.R. §1508.4 (neither an environmental impact

statement nor an “environmental assessment,” a sort of

junior-varsity environmental impact statement, is needed for

projects that “do not individually or cumulatively have a

significant effect on the human environment”). See also 23

C.F.R. §771.117(c)(26) (highway-renovation projects come

within the §1508.4 exclusion, with qualifications),

§771.117(d)(13) (same).

One local resident and two groups filed this suit, contending

that more study is essential. After denying a motion

for a preliminary injunction, see 2016 U.S. Dist. LEXIS 132388

(E.D. Wis. Sept. 27, 2016), the district judge read into the record

an oral opinion granting summary judgment for the defendants.

The judge concluded that the environmental report

shows that the project fits the criteria for categorical exclusion

from the need for a more comprehensive study. PlainNo.

17-1036 3

tiffs have appealed. They want Wisconsin to abandon the

project, contending that reducing the speed limit to 45 miles

per hour would do enough to curtail accidents. But this suit

concerns environmental effects, not the project’s wisdom.

Plaintiffs offer two principal arguments: that the Agency’s

failure to write a decision separate from the report shows

that it has yet to give the project independent consideration,

and that the report does not analyze cumulative effects of

multiple highway-renovation projects.

The underlying statute (the National Environmental Policy

Act or NEPA) calls for an environmental impact statement

to accompany recommendations or reports on proposals

for “major Federal actions significantly affecting the

quality of the human environment”. 42 U.S.C. §4332(2)(C).

Renovating 7.5 miles of an existing two-lane road does not

stand out as a major cause of a significant effect. Regulation

1508.4 establishes a “categorical exclusion” of projects that

are not “major”. Here is the language:

Categorical exclusion means a category of actions which do not

individually or cumulatively have a significant effect on the human

environment and which have been found to have no such

effect in procedures adopted by a Federal agency in implementation

of these regulations (§1507.3) and for which, therefore, neither

an environmental assessment nor an environmental impact

statement is required. An agency may decide in its procedures or

otherwise, to prepare environmental assessments for the reasons

stated in §1508.9 even though it is not required to do so. Any

procedures under this section shall provide for extraordinary

circumstances in which a normally excluded action may have a

significant environmental effect.

Section 1508.4, promulgated by the Council on Environmental

Quality, covers all federal agencies. The Federal Highway

Administration implemented it through 23 C.F.R. §771.117.

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The Administration believes that renovating existing roads

generally does “not individually or cumulatively have a significant

effect on the human environment”. The point of the

years-long, 141-page study was not to question the validity

of the regulations but to find out whether this renovation, in

particular, needs a thorough evaluation because it would

cause “[s]ignificant environmental impacts” (§771.117(b)(1))

or exceed “the constraints in paragraph (e) of this section”

(§771.117(d)(13)).

The report concludes that the renovation of Highway 164

would not have a significant environmental effect. After the

work is done it will be the same road, in the same place, with

the same two lanes, and a little wider so that larger vehicles

can safely use the shoulders (and are less likely to hit each

other if they veer from the middle of a lane). Widening the

road and improving sight lines by clearing some obstructions

at roadside will use 38 acres of land in total (or 5 acres

per mile of road). Of those 38 acres, 1.655 are wetlands,

which will be filled; that’s bad for some animals and plants,

but the state will create 2.825 acres of new wetlands at another

site. No threatened or endangered species would be

adversely affected. The area through which the highway

runs would remain hilly and forested. All in all, the report

concluded, not much bad could happen, while drivers and

their passengers would become safer. The report added that

reducing the speed limit on this stretch of road might endanger

drivers, because although some would obey the lower

limit many would not, and data show that a variance in

different vehicles’ speeds is a major cause of accidents.

Plaintiffs tell us that, by signing off without writing a

separate explanation, the Administration showed that it had

No. 17-1036 5

not taken this matter seriously. Yet neither a statute nor a

rule requires the agency to write its own analysis. (Approving

federal funding for a highway is neither adjudication nor

rulemaking subject to the Administrative Procedure Act’s

requirements under 5 U.S.C. §§ 553, 554.) The principal questions

the Administration had to decide were whether the

project will have “[s]ignificant environmental impacts”

(§771.117(b)(1)) or flunk the analysis under §771.117(d)(13).

It was not necessary to add to what the report said about

those subjects. And as judicial review of the agency’s finding

is deferential, see Marsh v. Oregon Natural Resources Council,

490 U.S. 360, 375–77 (1989); Sierra Club v. EPA, 774 F.3d 383,

393 (7th Cir. 2014), its conclusion must be respected.

It would be unwarranted to infer from the lack of a separate

writing that the subject has been slighted. District judges

and magistrate judges frequently sign search warrants without

writing opinions, but no one should infer that judges are

automata who sign whatever is placed in front of them. They

read and think but often find that the papers speak for themselves.

Or consider this court. The vast majority of decisions

are issued by three-judge panels, yet only one judge signs

the opinion; the other two join silently. (In the United Kingdom,

by contrast, every judge writes in many cases. Seriatim

opinions were common in the United States, too, until John

Marshall became Chief Justice.) Silence by a majority of the

judges does not imply inattention, however. To the contrary,

all members of the court read the materials carefully and ensure

that each decision is sound before they approve it. Just

so with the Federal Highway Administration. The Administration’s

staff was active in preparing the report, commenting

on drafts and making suggestions. Only when the whole

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process was complete, to its satisfaction, did the Administration

sign off. No statute or rule requires more.

As for the argument that the 141-page report didn’t analyze

the cumulative effects of many different highway-repair

projects: that’s true but irrelevant. The Administration must

analyze cumulative effects when deciding whether the category

(renovating highways) comes within the exclusion.

That’s what the first sentence of §1508.4 says. But once a categorical

decision has been made—and plaintiffs do not contest

the Administration’s finding in §771.117 that road renovations

cumulatively do not amount to major federal actions

with significant environmental effects—the remaining question

is whether a particular project flunks the constraints of

§771.117(e) or otherwise has “[s]ignificant environmental

impacts” (§771.117(b)(1)). That’s what this report investigated.

As we’ve said already, judicial review is deferential, and

we lack a compelling basis to upset the Administration’s

finding that the categorical exclusion of §1508.4 and §771.117

applies to this project. See also Sierra Club v. United States

Forest Service, 828 F.3d 402, 410–11 (6th Cir. 2016) (an agency

need not analyze cumulative effects when the categorical exclusion

itself considers them).

Trying to include all cumulative effects of every project

when analyzing any project is not feasible. And Kleppe v. Sierra

Club, 427 U.S. 390, 409–15 (1976), holds that the exercise

is not necessary. The Justices wrote that, although cumulative

effects matter, the agency has discretion to consider

when and how they are considered. It is not necessary to

look at the Big Picture when evaluating every proposed project,

the Court held. They said that about a huge project entailing

the development of millions of coal-rich acres in the

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Powder River Basin; the point is no less true about a road

project in Wisconsin that uses 38 acres of land and adds

about one net acre of wetlands.

One final subject calls for brief mention. Section

771.117(b)(2) requires analysis when a project occasions

“[s]ubstantial controversy on environmental grounds”.

Plaintiffs say that their own opposition to the project, coupled

with letters from several other organizations, adds up

to “[s]ubstantial controversy on environmental grounds”.

The Administration did not act arbitrarily, however, in deciding

that the environmental report was itself an adequate

response to that controversy. Section 771.117(b) does not require

an environmental impact statement whenever someone

opposes a project; it requires only “appropriate environmental

studies”. The lengthy report is such a study.

AFFIRMED