« Ind. Courts - Schedule set for COA Second Round Interviews | Main | Environment - "Timber industry needs best management practices" »

Tuesday, December 11, 2007

Ind. Courts - More on: Federal Judge Hamilton hears arguments on I-69 route; important information about the state rules

Updating this September 15, 2007 ILB entry, quoting a story from the Evansville Courier & Press that began:

Opponents of the route for Interstate 69 from Evansville to Indianapolis want the state to consider a route using existing roads — U.S. 41 to Interstate 70 near Terre Haute. They are asking a federal judge to order the state to re-evaluate its route options and reconsider the indirect route it previously rejected.
Bryan Corbin of the C&P today reports:
INDIANAPOLIS — A federal judge late Monday ruled against environmentalist plaintiffs and in favor of state and federal officials in deciding the new-terrain route of Interstate 69 from Evansville to Indianapolis can proceed.

U.S. District Court Judge David Hamilton has found summary judgment in favor of the Indiana Department of Transportation and other state and federal officials and against the Hoosier Environmental Council and several individuals and business owners who filed the suit in October 2006.

The plaintiffs contended the state and federal governments violated several federal laws, including the National Environmental Policy Act and Endangered Species Act, in routing the I-69 extension through Evansville, Princeton, Crane, Bloomington, Martinsville and Indianapolis. They wanted the federal judge to roll back the clock so that an earlier route proposal that was rejected — Evansville to Terre Haute along U.S. 41 and then Terre Haute to Indianapolis along Interstate 70 — would be reconsidered.

In a 58-page decision, however, Hamilton denied the plaintiffs’ motions.

The decision appears to clear a significant hurdle to groundbreaking on the Evansville-to-Oakland City first section of I-69 in late summer 2008.

One last obstacle is for the Federal Highway Administration to issue its “record of decision,” a final regulatory hurdle.

The C&P provides a link to Judge Hamilton's Dec. 10th 58-page opinion.

At issue in this case was compliance with the requirements of the National Environmental Policy Act (“NEPA”). That is because federal money is involved.

The State of Indiana also has its own law, found at IC 13-12-4, This act requires state agencies to prepare detailed Environmental Impacts Statements (EIS) with "every recommendation or report on proposals for legislation and other major state actions significantly affecting the quality of the human environment." [See IC 13-12-4-5(2)(C)]

The law goes on to provide, at the end of IC 13-12-4-5(2)(C), that:

The air pollution control board, water pollution control board, and solid waste management board shall by rule define the actions that constitute a major state action significantly affecting the quality of the human environment.
Each of the environmental boards has promulgated such definitions by rule. This was done by the APCB in 1988; the rules are found at 326 IAC 16. The WPCB rules, first promulated in 1988, are found at 327 IAC 11. The SWMB are found at 329 IAC 5.

Here is the interesting part. Under the Sunset Law adopted by the General Assembly some years ago, agency rules expire unless they are readopted every seven years. This was the year for readoption of the environmental policy rules. The SWMB rules were readopted. But my understanding is that was by accident.

The APCB and WPCB rules defining what is a major state actions significantly affecting the quality of the human environment, the language upon which implementation of the state's environmental policy act turns, was not readopted, leaving the EIS statute effectively inoperative with respect to air and water. The Air and Water rules will expire the end of this year, unless the Governor orders an emergency extension.

It is the ILB's understanding that the decision to kill the EIS rules was an internal IDEM policy decision, and that the members of the environmental boards were not alerted that this was happening. Neither, of course, was the public.

Posted by Marcia Oddi on December 11, 2007 09:57 AM
Posted to Ind Fed D.Ct. Decisions