6th Circuit Green Lights International Bridge

CINCINNATI (CN) – Construction of a new Canadian-U.S. bridge through the Delray neighborhood of Detroit will continue despite the objections of community organizations and the owners of the only other international bridge in the city, the 6th Circuit ruled.
     A three-judge panel rejected the appeals of six community groups and the Detroit International Bridge Company, after deciding that the Federal Highway Administration (FHWA) had considered reasonable alternatives and conducted sufficient environmental testing.
     The proposed bridge, known as the Detroit River International Crossing (DRIC), would supplement the existing Ambassador Bridge between Detroit and Windsor.
     At least 15 alternatives – including a “no-build” option – were considered during the process that ultimately led to selection of the Delray neighborhood site in 2009.
     The Bridge Company, along with the neighborhood groups, filed suit after the official Record of Decision (ROD) was published. They claims the government agency had violated the National Environmental Policy Act (NEPA), the Department of Transportation Act and the National Historic Preservation Act (NHPA).
     During initial arguments in the Eastern District of Michigan, the FHWA maintained that the Bridge Company – which owns and operates the Ambassador Bridge – lacked standing to bring claims under NEPA because its interest in the proposed bridge was entirely economic.
     The court denied this argument, and the 6th Circuit panel of Chief Circuit Judge Alice M. Batchelder, Circuit Judge Danny Julian Boggs and District Court Judge David D. Dowd Jr. concurred, concluding that “the Bridge Company alleges in the complaint that it owns property in Delray where the new bridge is proposed and that the DRIC bridge in Delray will have an adverse impact on air quality and noise in those neighborhoods.”
     While it was granted standing to challenge the bridge, none of the Detroit International Bridge Company’s arguments persuaded the panel to reverse the district court’s ruling.
     The company alleged the FHWA violated NEPA by committing to a government-owned bridge without allowing sufficient public input or considering privately funded alternatives.
     Judge Dowd rejected these claims, however, writing that “in the early phases of the DRIC project, the subject of ownership and governance was extensively considered by the Partnership Steering Committee. DRIC ownership and governance issues were a specific agenda item and the subject of two ‘discussion papers’ considered at a DRIC Steering Committee Meeting on November 12, 2003. … These discussion papers identified multiple ownership/governance scenarios, including a privately owned and operated crossing, a publicly owned crossing, and a public-private partnership.”
     He continued: “The Bridge Company’s claim that the FHWA pre-committed to government ownership and this pre-commitment was sprung on the public … is not supported by the record. In its arguments, the Bridge Company equates ‘public oversight’ to a ‘prerequisite for public ownership.’ However, ownership and oversight are two entirely different concepts that are not fungible. It is apparent from the record that the FHWA did not pre-commit to government ownership.”
     In its appeal, the company also alleged that the FHWA failed to consider a “no-build” alternative to the bridge, or, more specifically, considered the “wrong” no-build option.
     The company proposed a six-lane expansion to the Ambassador Bridge, allowing for an increase in motor vehicle traffic, and a section dedicated to pedestrians and bicycles.
     It claimed the FHWA considered an expansion that would have added just two lanes to the bridge.
     The panel rejected that argument, first concluding that “what alternatives will be considered is a determination for the agency to make … [and] NEPA does not dictate the nature of the alternatives that must be considered by the FHWA.”
     Judge Dowd continued: “Second, the Bridge Company’s own statements regarding the future of the Ambassador Bridge are vague, ambiguous, and inconsistent with respect to when and how many lanes of traffic would actually be available if the Bridge Company constructed the new six-lane bridge. The FHWA could not reasonably be expected to rest its analysis of a ‘no-build’ alternative on assumptions and likelihoods and inconsistent statements from the Bridge Company about what it might – or might not – do with the Ambassador Bridge in the future.”
     The Delray community groups involved in the suit against the FHWA claimed on appeal that the government violated environmental justice principles by “failing to give a ‘hard look’ at alternative bridge crossings that would not have a negative impact on [their] minority and low-income neighborhood.”
     The six groups – Latin Americans for Social and Economic Development, Citizens with Challenges, Detroit Association of Black Organizations, Detroiters for Progress, MANA de Metro Detroit and the Mexican Patriotic Committee of Metro Detroit – claimed that bridge sites in affluent white neighborhoods were rejected as a result of political pressure.
     The panel found nothing wrong with the process used by the FHWA to select Delray for the bridge, however, noting that other sites were unsuitable “for a variety of reasons, including the presence of old mining sites, poor performance in regional mobility rankings, and significant community impacts on both sides of the river.”
     Judge Dowd pointed out that “other crossing alternatives considered by the FHWA had higher concentrations of low income and minority populations than Delray.”
     In upholding the District Court’s judgment, the panel concluded that “environmental impacts and environmental justice issues are a consideration in agency decision making, but are not controlling. The record amply reflects that the FHWA took a ‘hard look’ at both these issues, considered the ‘no build’ alternatives throughout the entire process, reasonably determined its priorities based on all the comparative information available, and made a choice that resulted from a reasoned process.”

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