TxDOT sued over its enviromental impact assessments

Very interesting.

After college, Michael Moritz got a job in Houston analyzing fatal car crashes. Moritz, a 27-year-old native of San Antonio, stood on Interstate Highway 45, one of the most dangerous stretches of highway in the country, and documented how cars collided. One day in the fall of 2019, he learned that the Texas Department of Transportation intended to expand I-45, supposedly to fix congestion and make the highway safer.

“More lanes just doesn’t equal safety,” he said.

And then he learned about all the other negative impacts of the $7 billion expansion project, which would remake Houston’s downtown and demolish more than 1,000 homes, nearly 350 businesses, five churches and two schools.

He got involved with a grassroots group called Stop TxDOT I-45 and started spending nights and weekends fighting the expansion. Gradually, he met people fighting freeway expansions across the state, including in the capital city of Austin, and joined a regular Zoom call to discuss strategy. He signed up for automated emails from TxDOT to find out when new projects were proposed and approved.

In 2021, just a few days before Christmas, he got two emails from TxDOT. The agency had issued a “finding of no significant impact” — or FONSI, pronounced like Fonzie, the “Happy Days” character — for two segments of a $6 billion project to rebuild and expand Interstate Highway 35, which passes through the heart of Austin. “Really?” he thought. “No impact?”

Moritz was alarmed by the idea that adding lanes to an interstate running through one of the fastest-growing cities in the country was considered to have no environmental impact. The expansion of the north and south segments of I-35 would consume 30 acres of land, affect more than a dozen streams and creeks, and add millions of metric tons of carbon to the atmosphere over the coming decades.

Moritz called up a few activists he knew in Austin. Together, they wondered: How often was TxDOT declaring that its projects had no impact on the human or natural environment? Moritz decided to find out. He searched TxDOT’s online archives for every environmental review published since 2015, as far back as TxDOT’s records extend.

Moritz quickly noticed that many projects that were physically connected had been spliced into segments, as I-35 was in Austin. Loop 88 in Lubbock, notably, had been evaluated in four segments stretching across 36 miles. Collectively, those segments would consume 2,000 acres of land, displace nearly 100 residences and 63 businesses, and cost almost $2 billion. Yet all four segments received findings of no significant impact, three on the same day.

Overall, Moritz discovered that between 2015 and 2022, 130 TxDOT projects were found to have no significant impact after an initial review, while only six received full environmental analyses detailing their impacts. Cumulatively, those 130 projects will consume nearly 12,000 acres of land, add more than 3,000 new lane miles to the state highway system, and displace 477 homes and 376 businesses. The total projected cost of those projects was nearly $24 billion, almost half of what TxDOT spent on transportation projects during that time and twice as much as the amount spent on projects that received full environmental reviews.

“It can’t be argued with a straight face that these big, multihundred-million-dollar projects don’t have significant impact,” says Dennis Grzezinski, an environmental lawyer in Wisconsin who has worked on National Environmental Policy Act cases for three decades and who was not involved in Moritz’s study. He called Moritz’s analysis “a giant red flag” that TxDOT was approving projects in violation of NEPA.

“If TxDOT is producing environmental assessments that result in FONSIs over and over and over again, on large-scale interstates and major highway expansion projects, there is clearly something major that’s wrong and not in line with NEPA requirements,” he says.

Now, a group of activists is suing TxDOT, saying that the agency split the I-35 project into segments in order to obscure its full impacts and “circumvent” the requirements of NEPA. The case, filed in U.S. district court, raises larger questions about the federal government’s decision to give TxDOT the authority to approve its own environmental reviews.

“I think the words ‘no significant impact’ have meaning,” Grzezinski says.

Under NEPA, a 1970 law, any state agency receiving federal funding for a project must document how the project impacts the human and natural environment. That documentation is categorized in one of three ways, depending on the project’s perceived impact. Actions that “significantly affect the environment” require a comprehensive environmental impact statement, which quantifies those impacts, includes specific ways the agency would mitigate them and asks for significant public feedback. (The final environmental impact statement for the Houston highway expansion exceeded 8,000 pages.)

On the other end of the spectrum, relatively minor projects — like repaving an existing road or repairing an interchange — can receive what’s called a categorical exclusion, essentially an exemption from NEPA. Everything in between is considered through an environmental assessment, a relatively concise document, typically a few hundred pages. An environmental assessment leads to either a full environmental review or a finding of no significant impact, which allows the agency to proceed with land acquisition and construction.

But because NEPA covers a broad array of government actions, the law doesn’t define what makes an environmental or social impact “significant” — whether it’s acres of land taken or people displaced — and thus what triggers a full environmental review.

There’s a lot more, so go read the rest; the story was originally published by Grist. I’ve blogged a couple of times about the proposed I-35 expansion, the design for which makes I-45 look almost sedate. It would not be surprising to me if TxDOT had been playing fast and loose with the impact assessments under NEPA – they are allowed some discretion in coming to their assessments, and it would be a lot easier on them and everyone involved with the subsequent construction if they gave certain projects the “no significant impact”. It’s more than a little hard to believe that could be the case with I-35, and if the end result is a full and rigorous examination of TxDOT’s operations, that’s fine with me. This is a federal lawsuit so expect it to take years to come to some kind of resolution, but I’ll try to keep an eye on it.

Related Posts:

• So what’s the deal with that I-45 deal?
• Agreement reached on I-45 expansion plans
• I-45 remains in the funding plan