Hwy. 164 rejection could be far-reaching
Judge: project violated federal laws
A federal district court decision handed down last week by Judge Lynn Adelman could affect how federally funded highway projects in Lake Country are designed and built, including the proposed four-lane expansion of Highway 164, new construction in the Highway 67/I-94 corridor, proposed roundabouts on Highway C and work slated along I-43 near Mukwonago and Big Bend.
The decision is also likely to attract the attention of environmental lawyers nationwide because it illustrates that citizens groups can successfully challenge state and federal agencies' assertions over highway designs and environmental impacts, according to Elizabeth Rich of Plymouth.
Rich is a 25-year veteran of environmental law who was one of the lawyers representing the Highway J Citizens Group (HJCG) and the Waukesha County Environmental League (WEAL), which filed the lawsuit in 2005.
She and Charles Barr, another lawyer representing the citizens groups, acknowledged that the decision, if it stands, could affect the decision-making process for federally funded highway projects in the region whose design and construction might be subject to requirements in the National Environmental Policy Act (NEPA).
NEPA, approved by Congress and signed by President Richard Nixon in 1970, requires the development of detailed statements assessing the environmental impacts, and alternatives, to any significant federal action.
Peg Schmitt, a spokeswoman for the Wisconsin Department of Transportation (DOT) said it will take some time before state and federal highway authorities decide whether they will appeal the decision to the U.S. Court of Appeals.
Experts in federal litigation and environmental law privately acknowledged highway officials could face a dilemma in deciding whether to appeal the case.
If they appeal and lose, the decision and subsequent court order would become a precedent that might be applied to highway projects across at least the upper Midwest, if not the nation.
On the other hand, if they don't appeal, perhaps the requirements might be applied only in Southeastern Wisconsin.
According to the lawyers, what steps the state and federal authorities might have to take, possibly including new public hearings, and how other projects will be affected, depends on how the judge fashions his order to implement the decision.
There will be a telephone conference between the judge and lawyers for both sides Oct. 29.
Highway 164 project
The expansion of Highway 164 from two to four lanes is completed from I-94 to Howard Lane, north of Silver Spring Road.
Highway officials were anticipating completing the project in phases from Howard Lane to Washington County's Highway E, near I-43, when traffic volume reached 13,000 cars per day, which is expected by 2018 at the earliest, according to court documents.
There is a possibility the judge might require state and federal officials to mitigate some of the environmental damage resulting from the completed portions of the project, according to Barr and Rich.
In his decision, Adelman ruled that the state and federal highway officials, along with the U.S. Army Corps of Engineers, violated a series of federal laws and regulations in preparing environmental impact statements (EIS) and issuing permits for the project
The judge ordered the Federal Highway Administration and the U.S. Corp of Engineers to revoke - and reconsider issuing - permits approving the project.
'Open house' format illegal
The judge also ruled that the DOT "open house" format for public hearings on federally funded projects violates federal law.
Rather than providing for a public exchange of views regarding a proposed project, the format requires citizens to individually review project plan displays and then dictate their views to a court reporter or submit written comments
"The open house afforded no direct opportunity for citizens to make their views generally known. It offered no opportunity for one citizen to learn about the views of a fellow citizen, no opportunity for one citizen to influence another," the judge wrote.
The judge also chastised the agencies for failing to adequately study what impacts widening Highway 164 from two to four lanes would have on development and urbanization in the region as well as air quality.
He also criticized the agencies for failing to seriously consider alternatives to widening the highway that were proposed by the citizens groups.
"The EIS makes no attempt to assess the incremental impact of road building on urbanization and its associated ill effects. It makes no attempt to explain how the agency's decision, when combined with other past, present and future decisions, might influence development in the region," he added.
The decision was handed down at about the same time that local officials were making public their discussions with state highway officials about the possibility of five roundabouts be constructed along Highway C near I-94.
While state officials have not commented on how the project would be paid for, local elected officials think it would be a combination of state and federal funds, which means consideration of the project might be subject to conditions in the judge's order regarding Highway 164.
Other projects in the region might also be affected because they are federally funded, subject to NEPA reviews, and were decided upon after an open-house-style public hearing.
Dennis Shook, regional spokesman for the DOT, said he could not comment on what impact the decision might have on any other local projects because agency lawyers were still reviewing the decision, which was filed Monday, Sept. 14.
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