• August 11, 2015
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The Kenilworth Trail in the Dead of Winter, 2013

Update (August 11, 2015)The issue in U.S. District Court Judge Tunheim’s order (D. Minn.), in a nutshell, concerns the many moving parts of large civil works projects and related issues of sequencing or timing. Specifically, how far can one go moving forward with the project before an environmental assessment is done? There is a risk that a project can get so far down the track that the environmental assessment will be a rubber stamp or a foregone conclusion because it is too late to undertake alternative plans.

“[T]he Court concludes that the [the Plaintiff] has not yet shown that the Met Council’s actions have irreversibly and irretrievably committed to a specific [Southwest Light Rail Transit line (“SWLRT”)] route.” Based on that finding, Judge Tunheim denied Plaintiff’s motion for summary judgment on its claim of a violation of the National Environmental Policy Act (or “NEPA”).

A beautiful piece of legalese in footnote 4 in the opinion, incidentally: “The Project Development Phase of the New Starts Program proceeds simultaneously with NEPA’s environmental review process: preparing a DEIS and FEIS, and the FTA’s issuance of a ROD.”) (Sung to the tune of “Initials,” the song from the Broadway hit musical “Hair.” Remember? “LBJ took the IRT, down to 4th Street USA… When he got there, what did he see? The youth of America on LSD…”)

Original post (Sept. 9, 2014) (under the headline, The On-Going Fight Over Southwest Light Rail: Losers In Executive Bouts Try Their Luck in the Judicial Ring): The Star Tribune reported the lawsuit brought by Lakes and Parks Alliance of Minneapolis yesterday. Consistent with the Strib’s apparent policy, they do not include a link to the complaint presumably because… I have no clue why the Strib normally does not. Maybe the Strib has no budget for the $2.40 cost of the filing. Maybe the Strib thinks that Strib readers do not have the attention spans for legal writing (who does?). Maybe the Strib thinks that publishing legal pleadings – even linking to them – could present the risk that readers will erroneously think the Strib is endorsing one side or another side in a legal dispute. Maybe the Strib thinks, “Why bother? Let’s just hope Minnesota Litigator picks up the slack.” I do not think that any of the explanations hold water. [Editor’s Note: On Twitter this a.m. @cagemasher commented: “on twitter a few weeks ago, someone from the @strib said it was up to each reporter, and whether they knew how to do it.”]

But I digress…

The Lakes and Parks Alliance takes the position that the light rail project violates state and federal law by going forward without a final environmental impact statement on the current “shallow tunnel plan.”

I get the sense that no one disputes that state and federal law require a final environmental impact statement. The only question is, “By when? Before what?” I guess it must be taken before:

any action that may (1) have an adverse environmental impact or (2) limit the choice of reasonable alternatives for the project may be taken [sic] until a full environmental review has been undertaken and the lead federal agency has issued a record of decision regarding the environmental analysis.

Complaint, Para. 22. Is deciding on one plan over other plans “an action”? Or, to put it another way,

no action that will prejudice the ultimate decision on a project may be taken before a final environmental impact statement has been issued and deemed adequate by the responsible governmental unit.

When do “actions,” however you define that, “prejudice the ultimate decision on a project”? Does the City of Minneapolis and surround suburbs have to consider and do a final environmental impact statement about “urban gondolas” before it can opt for shallow tunnel light rail?

Lawyers now get to argue about what an “action” is under the applicable regulations. If the public officials are contemplating seven alternatives (Complaint, Para. 27), do they have to come up with SEVEN final environmental impact statements before they can decide among them? Let’s say, hypothetically, that one alternative encountered enormous opposition from powerful stakeholders such that it would be unrealistic that this option would ever be adopted? Let’s say, hypothetically, that another alternative was so disproportionately expensive that it would be unrealistic that this option would ever be adopted? Do state and federal laws still require final EIS’s on all seven proposals before it can rule out two? Three? Six? To whom does that make sense?

It looks like U.S. District Court Judge John R. Tunheim (D. Minn.) will have to decide…

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