Court Tells Alaska to Reassess Its Priorities

     (CN) – Alaska must consider improving ferry service between Juneau and several outlying communities before it moves forward with plans to build an expensive new terminal and a highway through a national forest, the 9th Circuit ruled Wednesday.

     The federal appeals panel in Anchorage agreed with a lower court and several environmental groups that the state’s failure to study how to improve existing ferry service rather than building a potentially destructive highway and ferry terminal violated federal environmental law.
     A plan to improve “surface access” between the state’s capital and the communities of Haines and Skagway, in southeast Alaska’s Lynn Canal corridor, has been in the works since the early 1990s, according to the ruling.
     After years of study, a final environmental impact statement in 2006 chose, from among several alternatives – including doing nothing – a plan to build a new ferry terminal and highway that could destroy wetlands and old growth forests. It would also potentially require the relocation of dozens of bald eagle nests, according to the ruling. The construction could furthermore reduce the region’s brown-bear habitat by 26 percent.
     Alaska estimates that the project will cost between $103 million and $268 million in federal and state funds.
     The Southeast Alaska Conservation Council and five other groups sued the Federal Highway Administration, the Department of Transportation, the Forest Service, the Department of Agriculture and others to stop the project, alleging that planners had violated the National Environmental Policy Act (NEPA) by failing to study improving existing ferry services in Lynn Canal rather than building new roads and terminals.
     U.S. District Judge John Sedwick agreed with the conservation groups. He vacated the decision that approved the project and enjoined all construction pending a new environmental impact statement that takes the plaintiffs’ arguments into account.
     Alaska appealed the District Court’s judgment as an intervenor, but the 9th Circuit affirmed Wednesday.
     A three-judge panel found that the current environmental impact statement (EIS) “contains no analysis of ferry service to other areas, or of how the assignment of additional vessels to Lynn Canal would affect service elsewhere,” and lacks evidence that “reassigning vessels was not a reasonable alternative that required detailed consideration in the EIS.”
     “The district court therefore properly concluded that it was arbitrary for the FHWA [Federal Highway Administration] to refuse to consider reassigning vessels as a project alternative on the basis that it would increase costs and reduce services elsewhere when the chosen project alternative could have been rejected for the same reason,” Judge Mary Schroeder wrote for the panel. “By failing to examine a viable and reasonable alternative to the proposed project, and by not providing an adequate justification for its omission, the EIS issued by the FHWA violated NEPA.”
     Judge Diarmuid O’Scannlain disagreed with the majority in a dissent, arguing that the current environmental impact statement does include a reasoned study of plaintiffs’ plan in its parsing of a “No Action Alternative.”
     “As the final EIS explains, the No Action Alternative is based on the absence of capital improvements to ferry service in Lynn Canal,” he wrote. “Thus, unlike the other alternatives considered in the final EIS, the No Action Alternative includes no new highways, terminals, or ferries. It is not the case, however, that the Alternative contemplates no new improvements at all. The final EIS makes clear that the No Action Alternative presumes the continued implementation of non-capital improvements, including measures designed to make the most of existing infrastructure. Indeed, the final EIS expressly considers ‘deploying different vessels,’ ‘changing schedules,’ and ‘experiment[ing] with different levels and types of service in Lynn Canal’ as part of the No Action Alternative.”

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