Wednesday, July 17, 2013

Hoosier Environmental Council v. U.S. Army Corps of Engineers

Jul 16: In the U.S. Court of Appeals, Seventh Circuit, Case No. 12-3187. Appealed from the United States District Court for the Southern District of Indiana, Indianapolis Division. The Appeals Court explains that the case involves the scope of the duty imposed on the Army Corps of Engineers by section 404 of the Clean Water Act and its implementing regulations, to protect wetlands that contain or are covered by waters of the United States (and so are within Federal jurisdiction) from environmental degradation by caused by the construction of a highway. Implementing regulations state that a permit will be denied if the Corps finds that there is "a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem," or if the discharge "would be contrary to the public interest." The Appeals Court highlights the above words with italics saying they "are the ones critical to this case."
    Environmentalists opposed building a highway (Interstate 69 connection) on the direct route from Indianapolis to Evansville on the ground that it would destroy wetlands, disrupt forests, and also disrupt "karst" ecosystems, unusual landscapes permeated by caves and other formations that provide rich habitats for wildlife, including such endangered and threatened species as the Indiana bat (endangered) and the bald eagle (threatened). The Appeals Court indicates that most of the environmental concerns have been resolved, and this case is concerned just with the filling of wetlands and of stream crossings.
    Environmental groups object to the choice of the direct route. They argue that the Corps failed to consider whether the direct route as a whole, rather than one section of it, would be in the public interest and whether the indirect route would be a practicable alternative. But the district court found the Corps' analysis adequate to justify the grant of the permit and so awarded summary judgment to the defendants, precipitating this appeal.
    The Appeals Court said, "The plaintiffs have not shown that the conclusion the Corps drew from its detailed and highly technical analysis -- that section 3 of the direct route is in the public interest -- was unreasonable. The Appeals Court concludes in affirming the district decision, "Anyway the highway agencies' Environmental Impact Statements had covered most, maybe all, of the ground that a public interest analysis would have covered. The plaintiffs argue neither that the project as a whole is contrary to the public interest nor that it was sectioned in order to prevent consideration of its total environmental harms. . .They may be playing a delay game: make the Corps do a public interest analysis from the ground up (along with an all-at-once six-section permit analysis) in the hope that at least until the analysis is completed there will be no further construction, so that until then the highway will end at the northernmost tip of section 3 -- making it a road to nowhere."
    Access the complete opinion (click here). [#Water/Wetlands, #Transportation, #CA7]

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