Transportation Law Hub

“It is change, continuing change, inevitable change that is the dominant factor in society today. No sensible decision can be made any longer without taking into account not only the world as it is, but the world as it will be.”

– Isaac Asimov

The new bridge crossing between Detroit and Windsor took another step toward reality after the Sixth Circuit Court of Appeals rejected an environmental challenge filed by community groups purportedly representing the Delray neighborhood of Detroit and the Detroit International Bridge Co.

The court determined that the Federal Highway Administration (FHWA) complied with the National Environmental Policy Act (NEPA) and Executive Order 12898 (environmental justice) in selecting the Delray neighborhood as the anchor point for the American side of the New International Trade Crossing (NITC). By taking a “hard look” at the environmental and social impacts of the Delray crossing alternative, the FHWA complied with the law.

Under NEPA, each federal agency must consider the environmental, human health, economic and social effects of any major federal action before it can act. The FHWA spent eight years, conducted numerous public meetings with experts and stakeholders, and issued over 100 reports on various aspects of the NITC in making its final decision, which was memorialized and incorporated into a “Record of Decision” or “ROD.” Under the Administrative Procedures Act (APA), the court’s review of the agency’s decision is limited to the ROD.

Signed into law by Richard Nixon, NEPA is one of the oldest environmental laws in the United States. Unlike other environmental laws, its focus is not on regulated activity, but instead on federal agency decision-making. NEPA contains no substantive requirements, but instead sets up procedural requirements that force all federal agencies to consider environmental and other impacts of an agency’s actions before it can act and commit federal resources.

As long as the procedures are followed and there is evidence in the record to support its final decision, courts cannot reverse an agency’s decision, even if more environmentally or socially beneficial options exist. The process includes public notice and comment, and an analysis of the environmental and social impacts of a proposed course of action, including an analysis of other feasible options, including a no-action alternative. Courts are extremely deferential to an agency’s decision and will not substitute its own judgment for that of the agency. In sum, NEPA challenges are very difficult to win for those opposing an agency’s decision.

With respect to the NITC-specific challenges, the court dismissed each of the following:

• The FHWA "pre-committed" to building a government-owned bridge. COURT: The ROD demonstrated that ownership and governance of the new bridge was an open question, with the FHWA selecting a bridge that is jointly owned by Canada and the United States with some private involvement in the “design, financing, operations and/or maintenance.”

• The FHWA did not independently consider and simply accepted Canada’s rejection of a new span adjacent to the existing Ambassador Bridge. COURT: The FHWA conducted its own analysis and found the alternative ranked highly in some categories, but not acceptable in others. That option’s downfall rested on the lack of highway-to-highway connections, significant community disruption and environmental issues on the Canadian side of the proposed bridge, and lack of redundancy (this is, one primary purpose of the new bridge was to provide a second crossing in the event of terrorist attack or natural disaster, which a second, adjacent span would not provide).

• The FHWA considered the wrong “no-build” alternative, because a privately built second span with six lanes would have provided sufficient capacity for anticipated increases in traffic, which included the use of four lanes on the existing span. COURT: The Detroit International Bridge Co.’s own statement indicated that the existing four lanes would very likely not be available, but “could be” if "circumstances so demand.” The FHWA decides for itself what alternatives it will look at, but even considering the 10-lane alternative, the FHWA could consider that alternative unreliable due to the inconsistent statements. Finally, the FHWA determined in its discretion that the “no-build” alternative did not meet a variety of other requirements.

• The FHWA relied on old traffic data to support its decision. COURT: A Canadian-commissioned traffic study was not done for the purposes of the new bridge but done solely as a means of determining whether it could meet its financial obligations, so the FHWA could decide not to include it in its review. Other reports were generated after the ROD was prepared and could not be considered in the review of the FHWA’s decision.

• The FHWA did not conduct a “hard look” at the potential negative impacts on the minority and low-income Delray neighborhood. COURT: While there was some question whether the FHWA’s decision could be reviewed on environmental justice grounds, the FHWA did include environmental justice in its review in its ROD, so the court considered it. FHWA considered impacts early and consistently throughout the process, finding that the Delray option scored better on the local community than other alternatives. As long as the FHWA considered the impacts and documented its review, it had the discretion to select its preferred option.

NEPA is often used by groups seeking to stop or delay projects from happening. If the plaintiffs in this matter were successful in their challenge, the result would not have been the death knell for the NITC, but only an admonishment from the court to go back and supplement the record with whatever item the agency may have forgotten to consider or appropriately document. In this case, the FHWA was extremely thorough and supported its decision with eight years of study, public involvement and documentation. This chapter of the new proposed Detroit-to-Windsor bridge has closed. Although we can expect more legal challenges, they will not be likely based on environmental or socioeconomic grounds.