Openlands et al v. United States Department of Transportation et al

Filing 79

MEMORANDUM Opinion and Order. The Court grants plaintiffs' motion for summary judgment 41 and declares that FHWA's approval of the Tier 1 final EIS and ROD for the proposed new Illiana Expressway was arbitrary and capricious and in violat ion of NEPA. Therefore, the Court remands the Tier 1 final EIS and ROD to the Agencies for further proceedings consistent with this Memorandum Opinion and Order. Moreover, the Court grants defendant's motion to strike 71 the letter submitted b y plaintiff on April 13, 2015 63 because it pertains to matters not at issue in this case and strikes as moot plaintiffs' motion to reassign 77 . This case is terminated. Signed by the Honorable Jorge L. Alonso on 6/16/2015. Notice mailed by judge's staff (ntf, )

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
OPENLANDS, MIDEWIN HERITAGE )
ASSOCIATION, and SIERRA CLUB,
)
)
Plaintiffs,
)
)
v.
)
)
UNITED STATES DEPARTMENT OF )
TRANSPORTATION, et al.,
)
)
v.
)
)
Defendants,
)
)
and
)
)
ILLINOIS DEPARTMENT OF
)
TRANSPORTATION, INDIANA
)
DEPARTMENT OF
)
TRANSPORTATION,
)
)
Defendant-Intervenors.
)
____________________________________)

No. 13 C 4950

Judge Jorge L. Alonso

MEMORANDUM OPINION AND ORDER
Plaintiffs seek summary judgment on their claim that the Federal Highway Administration’s
Record of Decision and approval of the Tier 1 Final Environmental Impact Statement (“EIS”) for
the proposed Illiana Tollway violates the National Environmental Policy Act (“NEPA”) and section
4(f) of the Transportation Act. For the reasons set forth below, the Court grants plaintiffs’ motion.

Background

On June 8, 2011, the Federal Highway Administration (“FHWA”) issued a notice of intent
to prepare “a Tier One Environmental Impact Statement (EIS) . . . for the Illiana Corridor Project”
with anticipated “termini [of] Interstate Highway 55 in Will County, Illinois and Interstate Highway
65 in Lake County, Indiana.” 76 Fed. Reg. 33401.1 The Tier One study was conducted jointly by
the FHWA, the Illinois Department of Transportation (“IDOT”), and the Indiana Department of
Transportation (“INDOT”) (“the Agencies”). (Defs. & Def.-Intervenors’ Jt. Stmt. Material Facts
¶ 1.) The study area was “approximately 950 square miles in portions of Will and Kankakee
counties in Illinois and Lake County in Indiana.” 76 Fed. Reg 33401.
After issuing the notice of intent, the Agencies received input from a variety of federal, state,
and local stakeholders regarding the EIS. The stakeholders included the Illinois and Indiana
metropolitan planning organizations (“MPOs”), state-created entities required by federal law to
develop both long-range “transportation plans,” with a planning horizon of at least twenty years, and
short-range “transportation improvement programs,” which are updated every four years, in
“metropolitan areas of [a] State.” 23 U.S.C. § 134(c)(1); 23 C.F.R. §§ 450.322(a), 450.324(a).
Among the MPOs involved in the process were the Chicago Metropolitan Agency for Planning
(“CMAP”), which is “responsible for developing and adopting a funding and implementation
strategy for an integrated land use and transportation planning process for the northeastern Illinois
region,” and the Northwestern Indiana Regional Planning Commission (“NIRPC”), which is charged
with “institut[ing] and maintain[ing] a comprehensive planning and programming process” for

1

“For major transportation actions,” FHWA is permitted to prepare the EIS in two tiers.
See 23 C.F.R. § 771.111(g). “The first tier EIS . . . focus[es] on broad issues such as general
location, mode choice, and areawide air quality and land use implications of the major
alternatives. The second tier . . . address[es] site-specific details on project impacts, costs, and
mitigation measures.” Id.
2

transportation, economic development, and environmental policy for northwestern Indiana. See 70
Ill. Comp. Stat. 1707/15(a); Ind. Code 36-7-7.6-12.
When the notice of intent was issued, CMAP and NIRPC each had long-range transportation
plans in place. CMAP’s plan, called GO TO 2040, was based on a 2040 Forecast of Population,
Households and Employment that reflected CMAP’s policies for development in the region. See
http://www.cmap.illinois.gov/data/demographics/population-forecast.

Though CMAP had

previously used market-based forecasts for its long-range planning, for GO TO 2040 it “chose . . .
a policy-based plan (dealing with the investments and high-level choices that shape [the] region) as
opposed to a land use plan (dealing with specific types of development in specific locations.).”
(Defs. & Def.-Intervenors’ Stmt. Facts., Ex. 5, AR4_000026; id., Ex. 8, AR4_000417.) The CMAP
GO TO 2040 forecast projects that the population of and employment in Will County will increase
by

76%

and

116.5%,

respectively,

between

2010

and

2040.

See

http://www.cmap.illinois.gov/data/demographics/population-forecast.
NIRPC’s long-range plan projects that the Northwest Indiana region, comprised of Lake,
Porter, and LaPorte counties, will see increases of 13% and 29%, respectively, in population and
employment by 2040. See http://www.nirpc.org/media/3136/crp_summary_finaldraft_compressed.
pdf.
The Agencies did not, however, use the MPOs’ 2040 forecasts to prepare the EIS because,
they said, the forecasts were based on “aggressive assumptions regarding infill, redevelopment &
densification.” (AR2_038304.) Instead, the Agencies used market-driven forecasts developed by
consultants. (See generally AR1_001378-1466.) The Agencies’ forecasts project that by 2040, the
population of Will County will have grown by 102%, the population of Lake County will have

3

grown by 26%, and the population of the study area as a whole will have grown by 176%.
(AR2_018252.) The forecasts also project that by 2040, employment in Will County will have
grown by 167%, employment in Lake County will have grown by 36%, and employment in the
study area overall will have grown by 225%. (AR2_018257.)
In November 2011, the Agencies met with CMAP and NIRPC to discuss the forecasts. (See
AR1_003752-54.) CMAP and NIRPC objected to the market-driven forecasts, explaining that their
policy-driven forecasts envisioned “revitalization of the urban core” and “more development to
existing communities.” (AR1_003752.) CMAP did not object to the Agencies’ use of their own
forecasts but asked them to prepare a “‘policy based’ forecast using CMAP’s 2040 socioeconomic
scenario” as well. (AR1_003753.)
In December 2011, CMAP submitted comments to IDOT on the proposed “Purpose and
Need” section of the draft EIS (“DEIS”) for the Illiana project:
CMAP staff has worked closely with [IDOT] on this project, particularly regarding
the population and employment forecasts that are being used in this study. For
purposes of preparing revenue forecasts under market conditions, [IDOT] is basing
its demand forecasts on an alternative geographic distribution of households and jobs
that departs from those assumed under GO TO 2040. While CMAP understands the
reasons behind this, we are asking that demand forecasts for the project also be
prepared using GO TO 2040 assumptions to support current regional planning
analyses and remain consistent with requirements of the National Environmental
Policy Act.
(AR3_002569-70.) IDOT responded that “a refined project level forecast [was] being developed.”
(AR3_002571.)
After receiving input from a variety of stakeholders and analyzing dozens of potential
corridor routes, the Agencies chose three potential corridors to analyze in the DEIS: A3S2 (the
northernmost alternative that runs north of the Midewin National Tallgrass Prairie (“Midewin”)),

4

B3 (a corridor adjacent to the south side of Midewin), and B4 (a variation of B3 with a more
southern terminus in Indiana). (See AR 1_000200-04.) However, in February 2012, before the
DEIS was complete, the Agencies made “[t]he preliminary recommendation [that] . . . Alternative
B3 . . . be carried forward as the finalist” for the Tier Two EIS. (AR3_035240.)
In March 2012, plaintiffs objected that the Agencies had “prematurely limit[ed] [their]
analysis of reasonable alternatives by solely comparing the ‘B3’ route to a no action alternative in
the upcoming EIS.” (AR1_003707.) ‘‘By dismissing variations of northern alignments as a
reasonable alternative,” plaintiffs said, the Agencies “ha[d] not rigorously explored and objectively
evaluated all reasonable alternatives.” (Id.)
On March 14, 2012, CMAP told the Agencies:
[W]e are concerned with the Preliminary Recommendation to carry forward only the
B3 alternative . . . . The Purpose and Need Statement identifies the need to improve
regional mobility and to address local system deficiencies. 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. The screening results clearly showed that, as the location shifts
south, travel performance decreases.
Also, since it is assumed that this will be a toll facility of some type, the B3
alternative’s decrease in performance not only fails to fully address the purpose and
need, it also will likely not generate sufficient revenue to construct and maintain the
facility.
And finally, while considering quality of life in northeastern Illinois, GO TO 2040
seeks to direct investment toward strengthening existing communities, and finding
opportunities to encourage new development and redevelopment in livable
communities that are denser and designed for mixed uses. Focusing primarily on the
B3 alternative may encourage future development outside existing communities.
Continued analysis of alternative routes is necessary, to consider whether they can
provide a focus for development and redevelopment within existing communities
that is consistent with GO TO 2040.
. . . . We would encourage the Illinois Department of Transportation to carry forward
additional northern corridors through the Draft Environmental Impact Statement.
5

That information will be pertinent both to the continuation of this current process
and, ultimately, to how this project will be evaluated for potential inclusion in the
prioritized, fiscally constrained major capital project that is part of GO TO 2040, the
region’s official long range plan.
(AR1_003729.)
In July 2012, the Agencies issued the DEIS, which states that the Illiana project will address
“three principal needs”: (1) “[i]mprove regional mobility”; (2) “[a]lleviate local system congestion
and improve local system mobility”; and (3) “[p]rovide for efficient movement of freight.”
(AR1_008022.) These needs were based in part on the Illiana Corridor Transportation System
Performance Report (“TSP”), which, in turn, is based on the Agencies’ forecasts of population and
employment growth. (See AR1_001378-1466, 008022; AR 2 _018216.) As discussed above, the
forecasts project that by 2040, the population of and employment in Will County will grow by 102%
and 167%, respectively, and the population of and employment in the study area as a whole will
grow by 176% and 225%, respectively. (AR2_018252, 018257.) These forecasts are the foundation
for the DEIS’ analysis of how building the Illiana corridor in one of the three “finalist” locations or
not building it at all will impact the area. (See, e.g., AR1_007993, 8004, 8015-40, 8163-64.)
In August 2012, NIPRC submitted the following comments on the DEIS to the Agencies:
1.4 Project Need
Third paragraph:
The Study Area is expected to increase population by 176 percent and employment
by 225 percent between 2010 and 2040. This strong population growth in the Study
Area will result in increased local and regional traffic demands.
NIRPC deviates with the assumptions of population and employment growth in the
study area. The study has relied on market-based forecasts of future population and
employment for the purposes of estimating facility design requirements and toll
revenue. NIPRC has indicated that the use of market-based forecasts may be useful
for the development of the Illiana project’s toll and facility design requirements, but
the use of market-based forecasts is inconsistent with the 2040 Growth and
Revitalization Vision that the Commission adopted in October, 2010. The
6

distribution of regional growth as envisioned by the study team differs significantly
form the distribution of growth in the 2040 Comprehensive Regional Plan for
Northwest Indiana, which was adopted by NIRPC in June, 2011.
In the Indiana portion of the study area, NIRPC has planned for a population growth
of 19.8% and an employment growth of 27.9%. The limited growth assumed by
NIRPC reflects issues of the protection of the rural character of the Indiana part of
the study area, the need to prioritize reinvestment on the urban core communities on
the Lake Michigan Shore and limited access to high quality fresh water from Lake
Michigan in the study area.
....
The Illiana study is based on the assumption of a 176 percent increase in population
and a 225 percent increase in employment in the study area. If the official MPO [i.e.,
NIRPC] forecasts were used instead of the consultant team’s forecasts, there would
be a basis to predict significantly less travel and traffic congestion in the study area,
and the need for the project would be greatly diminished.
(AR2_005266.)
On August 28, 2012, CMAP submitted its comments on the DEIS to the Agencies:
To maintain and strengthen our region’s position as one of the nation’s few global
economic centers, GO TO 2040 recommends policies and investments that promote
livability and sustainability. While acknowledging that some growth will occur on
the outer fringes of our region, GO TO 2040 emphasizes the need to target
investments whenever possible to foster growth in existing communities. We are
concerned that the Illiana project’s alternatives are not being evaluated using the
CMAP forecasts developed for GO TO 2040. It is our understanding that the EIS
process would also test potential alternatives using the CMAP forecasts, which have
been developed through a cooperative, comprehensive planning effort and follow
from a series of policy recommendations that have been approved by the CMAP
Board and MPO Policy Committee. We encourage you to undergo this analysis for
all of the alternatives under consideration. The comparative results for the three
alternatives could be significantly different than those developed with the forecasts
that you developed for this project.
(AR1_006152.)
On August 29, 2012, plaintiffs submitted written comments to the Agencies questioning the
utility of B3 as the Illiana route:

7

. . . . [W]hile the agencies agreed to several requests from stakeholders to include
a northern route as part of their alternatives analysis, IDOT and INDOT have decided
(again based on inadequate and missing information) that their originally prefererd
[sic] B3 alternative still offers the best balance to meet the project’s purpose and
need. . . .
However, it remains unclear what good an Illiana expressway along this southern
route would serve. The B3 corridor would do little to address northern traffic
congestion on I-80, and is the least effective alternative to address . . . intermodal
truck traffic.
The southern routes run contrary to both concerns raised by [CMAP] in the scoping
process, and to . . . [NIRPC’s] 2040 Comprehensive Regional Plan, which shows
dramatically different predictions for Indiana growth in population and employment
within the Illiana study area than the figures relied upon by IDOT and INDOT . . .
.
(AR1_005150). Plaintiffs also asserted that the DEIS failed to adequately consider a number of
environmental impacts, including those that would affect Midewin:
Constructing Illiana south of Midewin will introduce intense noise, light, dust and
pollution that will constrict and degrade the viable habitat for grassland birds,
especially in cases where they need large expanses of prairie and grassland to thrive.
The dramatic increase of truck traffic along Illinois 53 will further encroach upon
this important bird habitat . . . . Birds either avoid areas near heavy use or are found
in lower numbers. One study found that bird presence and breeding were reduced
by 1200 meters from a road with heavy traffic volume. Another study shows that
birds can be negatively impacted by traffic noise up to 1.2 miles from the road. . . .
Birds communicate through auditory signals. If birds cannot discriminate between
their own songs and background noise, it makes it more difficult for them to
advertise locations of food and form pair bonds. . . .
....
While the DEIS is correct in its assumption that certain grassland birds in the area
would avoid the noise, light and air pollution from the roadway, this hardly means
that the impact is not adverse. . . . To the contrary, removing or encroaching upon
Midewin so that the birds no longer find areas habitable marks a significant impact,
especially when Midewin has been preserved for the purpose of allowing these
species the expanses they need to survive and nest. The Illiana should be viewed as
contributing impacts to an already constrained landscape that is crucial for sustaining
these grassland bird populations.

8

(AR1_005161.)
In October 2012, the Agencies announced their selection of Alternate B3 as the proposed site
for the Illiana Corridor. (AR3_011164.)
On December 12, 2012, CMAP submitted comments on the Agencies’ choice, reiterating its
concern that “the Illiana project’s alternatives [were] not being evaluated using CMAP forecasts
developed for GO TO 2040.” (AR3_003307). CMAP said it was “under the impression that the
EIS process would also test potential alternatives using the CMAP forecasts,” which “could
significantly change the scoring of the alternatives for the performance measures used in the
Preferred Corridor Report.” (AR3_003307-08.)
On December 20, 2012, the agencies responded as follows:
Coordination
There appears to be some misunderstanding regarding past coordination efforts
between our agencies, particularly with respect to the topic of forecasting. As
documented in the November 21, 2011 meeting held with the Illiana team . . . , the
rationale for our forecasting approach was discussed in depth. The meeting summary
also reflects CMAP’s concurrence with the Illiana team’s forecasting approach, as
well as our response to CMAP’s request that the GO TO 2040 forecast also be used
for the Illiana study. Since that time, there have been follow up meetings with
CMAP staff . . . . Beyond these specific coordination efforts, CMAP was part of the
project’s Corridor Planning Group; CMAP staff attended these meetings, and asked
these same questions, which were then responded to in this public forum. Moving
forward, we are committed to working through these issues until they are fully
resolved.

9

Forecasts
With respect to forecasts, as noted in the coordination meetings referenced above,
there are a number of very important reasons why the Illiana team must use a
“market based” forecast for NEPA studies, rather than simply using the GO TO 2040
forecast. This is consistent with the approach taken by IDOT, in consultation with
CMAP and its predecessor agencies over the past 15 years on major corridor
projects. Since the late 1990s, the courts have required a No Build/Build analysis
that reflect [sic] actual development and travel behavior that result from a major new
transportation project. Actual development is synonymous with market-driven
economic forecasts and as such, they were developed for the Illiana Corridor Study.
Market-driven economic forecasts are also needed for detailed NEPA level project
development for design, environmental impact, and financial analysis. Market-driven
economic forecasts are also being used by IDOT on other major projects and by the
Illinois Tollway.
....
The Illiana team is not using the CMAP GO TO 2040 policy-driven forecasts in the
alternatives analysis in the EIS for several reasons. The use of two sets of forecasts
will result in multiple sets of traffic forecasts and impacts that will confuse readers
and potential investors should the project be financed through public private
partnerships. The CMAP GO TO 2040 policy-driven forecasts do not reflect build
conditions with an Illiana Corridor facility and other baseline projects, and a build
condition is required for the analysis. Finally, actual growth in the region will occur
based on jurisdictional local land use policies, which may not reflect or be consistent
with CMAP policy-based forecasts. We have, however, included a discussion of the
CMAP GO TO 2040 forecast in appendix E the DEIS.
(AR1_003741-42.)
On January 17, 2013, the FHWA approved the Tier One Final EIS and Record of Decision
selecting Corridor B3 as the sole proposed site for further study. (AR1_000006-7.) With respect
to CMAP’s comments, the EIS says the following:
CMAP submitted a letter with six comments regarding the project’s Purpose and
Need and consistency with the GO TO 2040 long-range comprehensive regional
plan. Specifically, CMAP expressed concern that the project alternatives are not
being evaluated using the CMAP forecasts developed for GO TO 2040. The agency
expressed concerns about Corridor B3 and its likelihood to encourage growth that
is not near existing development. . . .
Response Summary:
10

In response, it was stated that the Illiana Corridor project team coordinated with
CMAP during Tier One to develop the Illiana Corridor study’s 2040 market-based
forecasts for use in developing traffic forecasts for design and financial analysis,
rather than use of CMAP’s policy-based GO TO 2040 forecasts. CMAP’s policybased forecasts do not account for an Illiana “build” scenario which is required by
federal regulations. Per federal regulations, the forecasts must reflect the presence
of the transportation network, in this case a “build” forecast scenario must be
developed. . . .
(AR1_000809.) Moreover, the EIS concludes that the proposed Illiana corridor would not impact
or “constructive[ly] use” the Midewin Tallgrass Prairie because: (1) “[f]ederal listed species within
Midewin National Tallgrass Prairie are known to be located further north within the property away
from the working alignment[] within Corridor B3 . . . , reducing the potential for proximity impacts”;
and (2) “[i]mpacts from such sources as highway noise, air quality, and lighting from these corridors
are not expected to be adverse since it is commonly believed that relatively mobile birds and wildlife
would move away from such sources.” (AR1_000550.)

Discussion2
The Court’s determination of whether the Record of Decision (“ROD”) and final EIS comply
with NEPA and section 4(f) of the Transportation Act is governed by the Administrative Procedures
Act (“APA”). Ind. Forest Alliance, Inc. v. U.S. Forest Serv., 325 F.3d 851, 858 (7th Cir. 2003).
Under the APA, the Court will set aside agency action if it is “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). To make this
determination, the Court must consider “‘whether the decision was based on a consideration of the

2

Though plaintiffs have moved for summary judgment, in the administrative review
context, a “motion for summary judgment is simply the procedural vehicle for asking the judge
to decide the case on the basis of the administrative record.” Hunger v. Leininger, 15 F.3d 664,
669 (7th Cir. 1994).
11

relevant factors and whether there has been a clear error of judgment.’” Ind. Forest Alliance, 325
F.3d at 859 (quoting Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 378 (1989)); see Sierra Club v.
Marita, 46 F.3d 606, 619 (7th Cir. 1995) (“Where an ‘agency has relied on factors which Congress
has not intended it to consider, entirely failed to consider an important aspect of the problem, offered
an explanation for its decision that runs counter to the evidence before the agency, or is so
implausible that it could not be ascribed to a difference in view or the product of agency expertise,’
the agency has violated the standards of the APA.” (quoting Motor Vehicle Mfrs. Ass’n v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983))). However, “‘[t]he court is not empowered to
substitute its judgment for that of the agency.’” Id. (quoting Citizens to Preserve Overton Park, Inc.
v. Volpe, 401 U.S. 402, 416 (1971), abrogated on other grounds, Califano v. Sanders, 430 U.S. 99
(1977)).
NEPA requires every federal agency to include an EIS “in every recommendation or report
on proposals for legislation [or] other major Federal actions significantly affecting the quality of the
human environment.” 42 U.S.C. § 4332(C). An EIS “shall provide full and fair discussion of
significant environmental impacts and shall inform decisionmakers and the public of the reasonable
alternatives which would avoid or minimize adverse impacts or enhance the quality of the human
environment.” 40 C.F.R. § 1502.1. An EIS is comprised of various sections, including: (1) the
purpose of and need for the proposed action; (2) the alternatives to the proposed action; and (3) the
environmental consequences of the proposed action. 40 C.F.R. § 1502.10. The “purpose and need”
section “shall briefly specify the underlying purpose and need to which the agency is responding in
proposing the alternatives including the proposed action.” 40 C.F.R. § 1502.13. The “alternatives”
section “is the heart” of EIS and shall “[r]igorously explore and objectively evaluate all reasonable

12

alternatives, and for alternatives which were eliminated from detailed study, briefly discuss the
reasons for their having been eliminated.”

49 C.F.R. § 1502.14(a).

The environmental

consequences section must discuss both direct and indirect effects of the proposed action and the
“[p]ossible conflicts between the proposed action and the objectives of Federal, regional, State, and
local . . . land use plans, policies and controls for the area concerned.” 40 C.F.R. § 1502.16.
Plaintiffs contend that the ROD and EIS do not justify the stated needs for the B3 Illiana
Corridor, i.e., to improve regional mobility, alleviate local system congestion and improve local
system mobility, and provide for efficient movement of freight (AR1_000010), because those needs
are derived from: (1) population forecasts that conflict with CMAP and NIRPC’s forecasts and
ignore relevant census data; and (2) baseline or “no build” forecasts that are, in reality, premised on
the assumption that the project will be built.
The Agencies say they rejected CMAP and NIRPC’s population forecasts because: (1)
market-based forecasts “reflect actual development and travel behavior that result from a major new
transportation project”; (2) “actual growth in the region will occur based on jurisdictional local land
use policies, which may not reflect or be consistent with CMAP policy-based forecasts”; (3) the
market-based forecasts are similar to those used by CMAP in transportation plans that pre-dated GO
TO 2040; and (4) “[t]he use of two sets of forecasts [in the EIS] will result in multiple sets of traffic
forecasts and impacts that will confuse readers and potential investors should the project be financed
through public private partnerships.” (AR1_003741-42; AR2_038304.)
Given the MPOs’ legal mandate to develop long-range transportation plans for their areas
and the influence they wield over local land use decisions through those transportation plans, it
would seem unwise for the Agencies to reject the MPOs’ population forecasts. But plaintiffs cite

13

no authority requiring the Agencies to accept the MPOs’ forecasts, and the question for the Court
is not whether the Agencies’ refusal to do so was unwise, but whether it was “arbitrary” or
“capricious.” 5 U.S.C. § 706(2)(A). Because the Agencies have articulated reasonable, if not
persuasive, reasons for their decision not to use the MPOs’ forecasts, that decision is not arbitrary
within the meaning of the APA. See Marsh, 490 U.S. at 378 (1989) (“When specialists express
conflicting views, an agency must have discretion to rely on the reasonable opinions of its own
qualified experts even if, as an original matter, a court might find contrary views more persuasive.”);
Sierra Club, 46 F.3d at 621 (“The [agency] is entitled to use its own methodology, unless it is
irrational.”); Piedmont Heights Civic Club, Inc. v. Moreland, 637 F.2d 430, 442 (5th Cir. 1981)
(“Proof on an issue such as the inaccuracy of population projections is inherently difficult because
of the uncertainty in population projections; however, citing a conflicting projection does not prove
the invalidity of another projection.”).
Plaintiffs also argue that the Agencies’ forecasts ignore data from the Census Bureau, which
show that there was virtually no growth in Will County between 2007 and 2013. (See Pls.’ Mem.
Supp. Summ. J., Ex. C.) The record, however, contains no support for this contention. The EIS and
underlying documents repeatedly state that the Agencies used census data to determine historic
population trends in the study area and to formulate the market-based forecasts of future growth.
(See, e.g., AR1_000247, 250, 256 (EIS stating that census data was used to investigate “current and
historic population trends,” “household income characteristics,” and “housing characteristics and
trends”); AR2 _018248, 018254 (TSP stating that census data was used “to investigate current and
historic population trends in the study area counties,” and to determine “total current employment”);
AR1_001390, 001395 (Agencies’ No Build Scenario document stating that information on historical

14

growth and population trends was based on census data).) Moreover, the Agencies’ population
forecasts project growth over a thirty-year period, starting in 2010 and ending in 2040. The fact that
there was little or no growth in Will County in the first few years of that period does not necessarily
invalidate the thirty-year projection as a whole. It would, perhaps, have been more prudent for the
agencies to acknowledge the fallow period and explain its effect, if any, on the overall forecast. But,
prudent or not, the Agencies’ failure to account explicitly for the lack of growth in the early part of
the forecast period does not make the forecast arbitrary.
Plaintiffs’ final contention is that the EIS’ “no build” forecast is fatally flawed. That forecast
is described in a document entitled Historic and Forecasted Growth of Employment and Population
in the Extended Region of Chicago, Market-Driven versus Policy-Based Socio-Economic Forecasts
(2010-2040), No-Build Illiana Expressway Scenario. (See generally AR1_001378-1466; see also
AR1_000248 (EIS stating that “[p]opulation forecasts were reviewed . . . to determine the magnitude
of growth projected in the Study Area . . . within the next 30 years, under the No-Action Alternative
(i.e., without the Illiana Corridor).”).) After explaining the methodology used to create the forecast,
the document projects that Will County will have a population of 1,366,456 and employment of
672,961, if the Illiana project is not built. (AR1_001417.) However, in the appendix pertaining to
Will County, the document states:
Over the next several decades there are, in planning and development, a number of
significant projects which should benefit virtually all portions of Will County.
Joining growth in the northwest corner, which currently is benefitting from
O’Hare-related development, are:
•
•

Continued developments related to the extension of I-355 to I-80 in Homer
and New Lenox Townships (primarily residential and retail).
Major multi-modal developments in Jackson, Joliet, Channahon and
Wilmington Townships; and potentially, in Crete.

15

•
•

•

South Suburban Airport development in Monee, Crete, Will and Washington
Townships.
Potential construction of the Illiana Expressway connecting all the above
projects – to one another – and to the national highway/rail/aviation
network.
Possible development of Metra’s Southeast Service from Chicago to Crete.

For these reasons, the Market-Driven expectations for Will County are excellent.
Population is forecasted to increase to 1,366,456, by 2040; this is 12.2 percent higher
than the CMAP forecast of 1,217,879. The Market-Driven employment forecast is
672,961 BEA jobs. This is approximately 28.4 percent higher than the CMAP 2040
employment forecast. . . .
(AR1_001428-29) (emphasis added).
The Agencies argue that this “two line[]” reference in the appendix cannot plausibly be read
to suggest that their no build forecast, in fact, assumes that the project will be built. (Defs. & Def.Intervenors’ Opp’n Mot. Summ. J. at 34.) The Court disagrees. The document plainly states that
“[p]otential construction of the Illiana Expressway” is one of “the[] reasons” the “[p]opulation [of
Will County] is forecasted to increase to 1,366,456, by 2040.” (AR1_001429.) Because the record
shows that the “no build” population forecast may or does include the “build” condition, the record
does not support the EIS’ statement that the purpose and need for the Illiana Corridor is to
accommodate the anticipated population boom in Will County.
Moreover, the flawed “no build” forecast is the foundation for the Agencies’ projection of
future traffic in the study area and their conclusion that the existing roadways cannot adequately
serve the future transportation needs. As the Agencies explain in the TSP:
1.5.4 2040 Travel Demand Forecasts
Analytical studies of the transportation system using a travel demand forecasting
model were conducted. Specifically, travel characteristics on the existing 2010
transportation system and the 2040 No Build Alternative were evaluated with the aid
of the travel demand model, which forecasts travel patterns and origins and
destinations of trips for the region and in the study area. . . .

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Existing and projected future travel demand forecasts are prepared based on the
2010 and 2040 socio-economic forecasts. The outputs from the travel demand
forecasts are the basis for much of the transportation system performance analysis.
1.5.5 Transportation System Performance Analysis
The information assembled and developed in the preceding tasks was then used to
analyze the ability of the transportation system within the general study area to
handle current and future travel demand. This included the analysis of historical,
current and projected 2040 socioeconomic and transportation system characteristics
and performance. Performance measures were developed and used to evaluate the
adequacy and ability of the transportation system in accommodating current and
future travel demand. . . . .
1.5.6 Transportation Needs Assessment
Based on the results of the transportation system performance analysis,
transportation deficiencies and needs have been identified. In addition, public and
stakeholder input has been used to identify transportation deficiencies and need.
(AR1_000881-82 (emphasis added); see AR1_000111 (EIS projection that daily truck trips in the
study area will increase by 193% from 87,800 in 2010 to 257,100 in 2040); AR1_000110 (EIS
projection that truck hours of delay will increase by 442% from 480 in 2010 to 2,600 in 2040).) In
short, the purpose and need for the Illiana Corridor identified in the EIS are derived directly from
the faulty “no build” analysis. Because that analysis does not substantiate the purpose and need, the
FHWA’s approval of the ROD and final EIS is arbitrary and capricious and in violation of NEPA.
The flawed “no build” analysis also dooms the ROD and EIS’ analysis of the direct effects
of the proposed Corridor. See 40 C.F.R. § 1508.8 (defining “direct effects as those “which are
caused by the action and occur at the same time and place”). With respect to these impacts, the
Agencies say:
IL 53 is projected to carry 17,000 vehicles per day by 2040 in a “no build” scenario.
The potential additional growth of traffic on IL 53 in the Midewin area with an
Illiana Corridor build alternative varies from 0 to 11,000 vehicles per day (for a total
of 17,000 to 28,000 vehicles per day) depending on the corridor location,
connectivity of the Illiana Corridor to IL 53, and the application of tolling to the
Illiana Corridor.
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(AR1_007509.) As discussed above, however, it is not clear that the EIS contains a true “no build”
analysis. Without such an analysis, it is impossible to determine the extent to which building the
Corridor will increase traffic on existing roads and the impact such increased traffic may have on
the study area. Thus, absent a supported no build analysis, the EIS does not comply with NEPA’s
directive to analyze the project’s direct impacts.
NEPA also requires the EIS to assess the “indirect effects” of a project, i.e., those “which
are caused by the action and are later in time or farther removed in distance, but are still reasonably
foreseeable,” including “growth inducing effects and other effects related to induced changes in the
pattern of land use, population density or growth rate, and related effects on air and water and other
natural systems, including ecosystems.” 40 C.F.R. § 1508.8. The EIS states that the B3 Corridor
“falls within an area that is largely undeveloped,” in which “[m]ore than 72 percent of streets and
highways . . . are rural” and “approximately 62 percent of roadways (2,093 miles) are local or
municipal streets.” (AR1_000250, 322.) CMAP and NIRPC both commented that building the
Illiana Corridor in such an area was likely to require the states and local communities to upgrade
those roads:
As stated in our letter commenting on Draft Tier I EIS, to maintain and strengthen
our region’s position as one of the nation’s few global economic centers, GO TO
2040 recommends policies and investments that promote livability and sustainability.
To achieve that, major transportation investments need to be positioned to foster
growth in existing communities. CMAP has serious concerns that the preferred
alternative, B3, will encourage growth that is not near existing development. This
alignment will promote low-density development throughout the southern portion of
Will County. And while B3 is noted to have the lowest impact on existing housing
and might be the least costly in terms of property acquisition, the real costs to
provide and maintain the necessary infrastructure to serve such development should
be considered, because they will add significantly to the project costs and the overall
development patterns.

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(AR1_003739; see AR2_005269 (NIRPC commenting to INDOT that “[i]t is likely that the[] [rural]
roads will need to be improved to accommodate the traffic induced by the Illiana; the cost of these
improvements will be borne not by the private partner, but by the local and state governments.”).)
Yet the EIS does not suggest measures for mitigating these impacts or even acknowledge that they
exist. (See generally AR1000606-63 (EIS discussion on indirect and cumulative impacts); see also
AR3_002786 (FHWA intra-agency email stating that CMAP’s comment about costs for additional
infrastructure “demonstrates [the Agencies’] lack of consideration for secondary and cumulative
impacts”).)
The EIS also does not discuss the “[p]ossible conflicts between the proposed action and the
objectives of . . . regional . . . land use plans,” “any inconsistency [between] a proposed action [and]
any approved . . . local plan,” or “the extent to which the [Agencies] would reconcile [the] proposed
action with the plan.” 40 C.F.R. §§ 1502.16(c), 1506.2(d). The Agencies acknowledge that the
market-based population forecasts that undergird their choice of B3 for the Illiana Corridor conflict
with the policy-based forecasts contained in the MPOs’ long-range transportation plans, which seek
to limit outward growth. The Agencies do not, however, acknowledge that the growth induced by
construction of the B3 corridor would also conflict with those plans. In fact, the only thing the EIS
says with respect to the MPOs’ transportation plans is: “At the regional level, CMAP’s Go To 2040
– Comprehensive Regional Plan is for the future of the Chicago metropolitan area. In addition, the
NIRPC approved its 2040 Comprehensive Regional Plan in June 2011. The regional plans establish
a policy framework, while the authority for land use control remains at the municipal level.”
(AR1_000616.) Given the clear inconsistency between the MPOs’ long-range plans and the

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proposed Illiana Corridor, NEPA obligates the Agencies to address it and explain how they would
“reconcile [the] proposed action with the plan[s].” 40 C.F.R. §§ 1502.16(c), 1506.2(d).
Plaintiffs also contend that the Agencies violated section 4(f) of the Transportation Act,
which provides:
[T]he Secretary [of the FHWA] may approve a transportation program or project .
. . requiring the use of publicly owned land of a public park, recreation area, or
wildlife and waterfowl refuge of national, State, or local significance, or land of an
historic site of national, State, or local significance (as determined by the Federal,
State, or local officials having jurisdiction over the park, area, refuge, or site) only
if–
(1) there is no prudent and feasible alternative to using that land; and
(2) the program or project includes all possible planning to minimize harm to the
park, recreation area, wildlife and waterfowl refuge, or historic site resulting from
the use.
49 U.S.C. § 303(c). In this context, “use” includes “constructive use,” 23 C.F.R. §§ 774.17, which
“occurs when the transportation project does not incorporate land from a Section 4(f) property, but
the project’s proximity impacts are so severe that the protected activities, features, or attributes that
qualify the property for protection under Section 4(f) are substantially impaired.” 23 C.F.R. §
774.15(a).
[The FWHA has] determined that a constructive use occurs when:
(1) The projected noise level increase attributable to the project substantially
interferes with the use and enjoyment of a noise-sensitive facility of a property
protected by Section 4(f), such as: . . .
(v) Viewing wildlife in an area of a wildlife and waterfowl refuge intended for such
viewing.
....
(5) The ecological intrusion of the project substantially diminishes the value of
wildlife habitat in a wildlife and waterfowl refuge adjacent to the project,
substantially interferes with the access to a wildlife and waterfowl refuge when such
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access is necessary for established wildlife migration or critical life cycle processes,
or substantially reduces the wildlife use of a wildlife and waterfowl refuge.
23 C.F.R. § 774.15(e)(1)(v), (e)(5). Midewin is property subject to section 4(f):
The largest public open space in northeastern Illinois, Midewin National Tallgrass
Prairie is on land once used as the Joliet Army Arsenal Plant and is now managed for
National Forest System purposes. Midewin National Tallgrass Prairie is partially
open to the public for various recreational activities. The Midewin National
Tallgrass Prairie‘s management plan indicates that the full property is designated a
“prairie under construction.” Since portions of the property are open for public
recreational activities and areas are planned for future preservation and wildlife
refuge, the Midewin National Tallgrass Prairie is considered protected by Section
4(f).
(AR1_000540.)
The ROD and EIS conclude that the B3 Corridor will not directly use Midewin. (See
AR1_000550 (“Corridor[] B3 . . . would not directly impact southern portions of the Midewin
National Tallgrass Prairie.”).) But they only tentatively rule out constructive use:
The Midewin National Tallgrass Prairie management plan indicates the area along
IL-53 is located within a restoration management area. . . . Federal listed species
within Midewin National Tallgrass Prairie are known to be located further north
within the property away from the working alignment[] within Corridor B3 . . . ,
reducing the potential for proximity impacts. . . . Based on the information available
at Tier One, a constructive use of this resource is not anticipated. The potential for
a constructive use will be further analyzed in the Tier Two NEPA studies.
(Id.) In fact, the final EIS expressly states that the Agencies’ determinations as to all 4(f) properties
are preliminary:
An evaluation of the proposed project’s potential impacts to Section 4(f) properties
is being conducted under § 774.7(e), which allows for a preliminary Section 4(f)
approval for Tier One documents, provided that opportunities to minimize harm at
subsequent stages are not precluded by decisions made in Tier One. Section 4(f)
approval will be finalized in Tier Two. A preliminary Section 4(f) approval would
be subject to a reevaluation if new or more detailed information becomes available
during the Tier Two NEPA studies. Feasible and prudent avoidance alternatives, if
any, should be identified, and all possible conceptual planning to minimize impacts
will be discussed in the Tier One NEPA studies. Further evaluation of measures to
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minimize harm to Section 4(f) properties will also occur in the Tier Two NEPA
studies.
(AR1_000536-37) Because the documents clearly state that the 4(f) determination with respect to
Midewin is not final, it is not ripe for review under the APA. See 5 U.S.C. § 704 (stating that “final
agency action” is subject to APA review); Bennett v. Spear, 520 U.S. 154, 177-78 (1997) (“As a
general matter, two conditions must be satisfied for agency action to be considered ‘final’: First,
the action must mark the consummation of the agency’s decisionmaking process – it must not be of
a merely tentative or interlocutory nature. And second, the action must be one by which rights or
obligations have been determined, or from which legal consequences will flow.”) (citations and
quotations omitted); Home Builders Ass’n of Greater Chi. v. U.S. Army Corps of Eng’rs, 335 F.3d
607, 614 (7th Cir. 2003) (stating that an action is final when “the agency has completed its
decisionmaking process, and . . . the result of that process is one that will directly affect the
parties.”) (quotations omitted).

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Conclusion
For the reasons set forth above, the Court grants plaintiffs’ motion for summary judgment
[41] and declares that FHWA’s approval of the Tier 1 final EIS and ROD for the proposed new Illiana
Expressway was arbitrary and capricious and in violation of NEPA. Therefore, the Court remands the
Tier 1 final EIS and ROD to the Agencies for further proceedings consistent with this Memorandum

Opinion and Order. Moreover, the Court grants defendant’s motion to strike [71] the letter
submitted by plaintiff on April 13, 2015 [63] because it pertains to matters not at issue in this case
and strikes as moot plaintiffs’ motion to reassign [77]. This case is terminated.
SO ORDERED.

ENTERED: June 16, 2015

__________________________________
HON. JORGE ALONSO
United States District Judge

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