Enviros Lose Challenge|to Construction of I-69


     CHICAGO (CN) – The 7th Circuit upheld the Army Corps of Engineers’ decision allowing the destruction of wetlands for a section of Interstate 69 in Indiana.
     The Clean Water Act authorizes the Corps to issue permits “for the discharge of dredged or fill material into the navigable waters” of the United States. However, the law says a permit should be denied if 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.”
     Two environmental groups — the Hoosier Environmental Council and Citizens for Appropriate Roads — opposed the Federal Highway Administration’s plan to build a section of I-69 between Indianapolis and Evansville, Ind.
     They said the project would wipe out thousands of acres of forests, farmlands, caves and aquatic ecosystems along the length of the 142-mile interstate, and they blasted the highway agency for allegedly failing to consider less destructive alternatives.
     Specifically, the groups argued that the agency should have upgraded the existing Route 41 between Terre Haute and Evansville to federal interstate highway standards. This option would have a smaller environmental impact, they claimed, and would cost only $1 billion instead of the $2 billion it will take to build I-69.
     The Corps granted the agency a permit allowing the filling of six streams and the destruction of wetlands along a portion of the new interstate.
     The Corps based its decision on an analysis sponsored by the Federal Highway Administration, which found that building the new interstate rather than upgrading the existing highway would greatly improve traffic congestion.
     Judge Richard Posner, writing for the three-judge panel in Chicago, said he saw no problem with the Corps’ reliance on that analysis.
     “Although the Corps has an independent responsibility to enforce the Clean Water Act and so cannot just rubberstamp another agency’s assurances concerning practicability and environmental harm, it isn’t required to reinvent the wheel. If another agency has conducted a responsible analysis the Corps can rely on it in making its own decision,” he wrote.
     “For the Corps to assume unilateral responsibility for determining the acceptability from a transportation standpoint of alternative highway projects would usurp the responsibility that federal and state law have assigned to federal and state transportation authorities,” Posner added. “The wetlands tail would be wagging the highway dog.”
     He continued: “The Corps would have to bulk out its staff with experts on highway design, construction, and transportation. The duty of the Corps is ‘to determine the feasibility of the least environmentally damaging alternatives that serve the basic project purpose.’ The basic purpose of the I-69 highway project was to be, and has been, determined elsewhere in government.”
     Posner also questioned the plaintiffs’ “almost incomprehensible” failure to seek a preliminary injunction against the proposed highway section before it was built and opened to the public in November 2012.
     “A motion for a preliminary injunction might well have been denied, but the denial of a preliminary
     injunction is immediately appealable and would have brought the litigation to a swifter conclusion,” he explained. “By their lassitude the plaintiffs have increased substantially the cost of the relief they seek,” including the cost of destroying sections already built.
     “But this is not an issue we need pursue,” he wrote, “as we don’t think the plaintiffs are entitled to relief in any event.”

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