Texas accused of skirting federal law in push to expand I-35 in Austin

This story was initially revealed by Grist. You can subscribe to its weekly newsletter here.

After faculty, Michael Moritz acquired a job in Houston analyzing deadly automotive crashes. Moritz, a 27-year-old native of San Antonio, stood on Interstate Highway 45, one of essentially the most harmful stretches of freeway in the nation, and documented how vehicles collided. One day in the autumn of 2019, he realized that the Texas Department of Transportation meant to expand I-45, supposedly to repair congestion and make the freeway safer.

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

And then he realized about all the opposite detrimental impacts of the $7 billion growth challenge, which might remake Houston’s downtown and demolish greater than 1,000 houses, practically 350 companies, 5 church buildings and two colleges.

He acquired concerned with a grassroots group referred to as Stop TxDOT I-45 and began spending nights and weekends preventing the growth. Gradually, he met individuals preventing freeway expansions throughout the state, together with in the capital metropolis of Austin, and joined a daily Zoom name to focus on technique. He signed up for automated emails from TxDOT to discover out when new initiatives have been proposed and authorised.

In 2021, just some days earlier than Christmas, he acquired two emails from TxDOT. The company had issued a “finding of no significant impact” — or FONSI, pronounced like Fonzie, the “Happy Days” character — for 2 segments of a $6 billion challenge to rebuild and expand Interstate Highway 35, which passes by means of the center of Austin. “Really?” he thought. “No impact?”

Moritz was alarmed by the concept including lanes to an interstate operating by means of one of the fastest-growing cities in the nation was thought of to haven’t any environmental affect. The growth of the north and south segments of I-35 would devour 30 acres of land, have an effect on greater than a dozen streams and creeks, and add hundreds of thousands of metric tons of carbon to the ambiance over the approaching many years.

Moritz referred to as up a couple of activists he knew in Austin. Together, they puzzled: How usually was TxDOT declaring that its initiatives had no affect on the human or pure atmosphere? Moritz determined to discover out. He searched TxDOT’s on-line archives for each environmental assessment revealed since 2015, way back to TxDOT’s information lengthen.

Moritz shortly observed that many initiatives that have been bodily related had been spliced into segments, as I-35 was in Austin. Loop 88 in Lubbock, notably, had been evaluated in 4 segments stretching throughout 36 miles. Collectively, these segments would devour 2,000 acres of land, displace practically 100 residences and 63 companies, and value virtually $2 billion. Yet all 4 segments obtained findings of no important affect, three on the identical day.

Overall, Moritz found that between 2015 and 2022, 130 TxDOT initiatives have been discovered to haven’t any important affect after an preliminary assessment, whereas solely six obtained full environmental analyses detailing their impacts. Cumulatively, these 130 initiatives will devour practically 12,000 acres of land, add greater than 3,000 new lane miles to the state freeway system, and displace 477 houses and 376 companies. The complete projected price of these initiatives was practically $24 billion, virtually half of what TxDOT spent on transportation initiatives throughout that point and twice as a lot as the quantity spent on initiatives that obtained full environmental critiques.

“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 labored on National Environmental Policy Act circumstances for 3 many years and who was not concerned in Moritz’s research. He referred to as Moritz’s evaluation “a giant red flag” that TxDOT was approving initiatives 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 gaggle of activists is suing TxDOT, saying that the company cut up the I-35 challenge into segments in order to obscure its full impacts and “circumvent” the necessities of NEPA. The case, filed in U.S. district courtroom, raises bigger questions concerning the federal authorities’s choice to give TxDOT the authority to approve its personal environmental critiques.

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

Under NEPA, a 1970 law, any state company receiving federal funding for a challenge should doc how the challenge impacts the human and pure atmosphere. That documentation is categorized in one of 3 ways, relying on the challenge’s perceived affect. Actions that “significantly affect the environment” require a complete environmental affect assertion, which quantifies these impacts, contains particular methods the company would mitigate them and asks for important public suggestions. (The ultimate environmental affect assertion for the Houston freeway growth exceeded 8,000 pages.)

On the opposite finish of the spectrum, comparatively minor initiatives — like repaving an present highway or repairing an interchange — can obtain what’s referred to as a categorical exclusion, primarily an exemption from NEPA. Everything in between is taken into account by means of an environmental evaluation, a comparatively concise doc, usually a couple of hundred pages. An environmental evaluation leads to both a full environmental assessment or a discovering of no important affect, which permits the company to proceed with land acquisition and development.

But as a result of NEPA covers a broad array of authorities actions, the law doesn’t outline what makes an environmental or social affect “significant” — whether or not it’s acres of land taken or individuals displaced — and thus what triggers a full environmental assessment.

One of the individuals Moritz referred to as in December was Adam Greenfield, the founder of a grassroots marketing campaign referred to as Rethink35, which referred to as on the state to tear down I-35 in Austin, substitute it with an city boulevard, and reroute pass-through site visitors across the metropolis on present roads. A longtime bicycle advocate, Greenfield had been galvanized into motion when he noticed TxDOT’s plan to expand I-35 from 12 to 20 lanes, together with frontage roads, by means of central Austin, blocks from the place he lived.

For Greenfield, that prospect felt like not only a neighborhood menace but additionally an existential one: Transportation is the main supply of greenhouse gasoline emissions in the United States, principally due to passenger vehicles and vans. TxDOT itself has discovered that automobile emissions in Texas accounted for 0.48% of complete worldwide carbon dioxide emissions, even because the state represents 0.38% of the world’s inhabitants. And extra capability for vehicles often leads to extra individuals driving, a phenomenon often called induced demand.

According to a calculator developed by the Rocky Mountain Institute, a sustainability nonprofit, the complete I-35 challenge would generate 255 million to 382 million extra automobile miles traveled per yr, ensuing in 1.2 to 2.6 million metric tons of carbon dioxide equal emissions by 2050, roughly equal to the annual greenhouse gases generated by a small coal-fired energy plant.

Segmenting I-35 obfuscated the total affect of what TxDOT was attempting to construct, Greenfield says. In June, Greenfield’s Rethink35, together with the Texas Public Interest Research Group and Environment Texas, filed a lawsuit towards TxDOT, alleging it had violated NEPA by splitting I-35 into three separate initiatives with distinct environmental critiques.

“If you look at the proposals, it seems pretty obvious to us that this is one big project,” Greenfield says. “They’ve used a lesser environmental review, an environmental assessment, for the north and south portions. For such an important project with such enormous implications for the region, they should be doing a full environmental impact statement.”

Segmenting initiatives and issuing FONSIs isn’t a method distinctive to Texas, says Matt Casale, the director of atmosphere campaigns for the U.S. Public Interest Research Group.

“It’s widespread and it’s a problem,” he stated.

But Texas, in addition to seven different states together with California, has little federal oversight. In 2012, the Federal Highway Administration, which oversees the development and upkeep of highways, created a program that might permit state transportation departments to assume federal duty to implement NEPA. The program, referred to as NEPA task, allowed companies like TxDOT to approve their very own environmental critiques, with annual audits to guarantee compliance. The program solved a capability downside: At the time, TxDOT had greater than 150 individuals engaged on environmental assessment, whereas the federal company had a fraction of that. NEPA task would permit TxDOT to transfer extra shortly on initiatives, lowering price and pointless delays.

When TxDOT joined this system in 2014, it signed an settlement with freeway administration, which was renewed in 2019. Last yr, when the administration intervened to cease the growth of I-45 in Houston, citing issues that the challenge would disproportionately affect Black and Hispanic communities in violation of the Civil Rights Act, it additionally alerted TxDOT that it will be reviewing the company’s compliance with the settlement. Moritz thinks his findings must be included in that assessment. Last month, he emailed his evaluation to the freeway administration and requested the company to “consider the number, scale, and segmentation of projects TxDOT has determined to have no significant impact since the execution” of the settlement. The administration declined to touch upon Moritz’s report.

Splitting a big challenge into discrete components, as TxDOT did for I-35, isn’t itself problematic. What makes segmentation unlawful is when the act of splitting conceals the general intent of a challenge, successfully hiding the forest in the timber. That’s what occurred in San Antonio in the Seventies, shortly after NEPA was signed into law.

For years, an area conservation group had been preventing a challenge referred to as the San Antonio North Expressway. The proposed freeway would minimize instantly by means of Brackenridge Park, which straddles the San Antonio River and spans practically 350 acres of parkland, wildlife habitat and trails. Facing public opposition, the Texas Highway Department, as TxDOT was identified till 1975, cut up the freeway challenge into segments and requested federal approval for the 2 outer sections of the roadway, which stopped quick on both finish of the park. This appeared to all however assure that the central section would bisect the park.

After the outer segments have been authorised, the conservation group sued, saying the freeway division had violated NEPA by illegally segmenting the challenge. Under NEPA, freeway initiatives can advance in segments provided that these segments start and finish at rational factors, exist with “independent utility” from each other, and — importantly — don’t “restrict consideration of alternatives for other reasonably foreseeable transportation.”

A yearslong courtroom battle ensued, ultimately attracting the eye of the U.S. Supreme Court.

“This case disturbs me greatly,” wrote Justice Hugo Black. “Patently, the construction of these two ‘end segments’ to the very border, if not into, the Parklands, will make destruction of parklands inevitable, or, at least, will severely limit the number of ‘feasible and prudent’ alternatives to avoiding the Park. The two segments now approved stand like gun barrels pointing into the heartland of the park.”

The challenge was in the end constructed after Texas declined to use federal cash for it.

The plaintiffs in the I-35 case at the moment are making the identical argument, solely this time the gun barrels are pointing into town of Austin. The teams opposing the freeway growth say that TxDOT’s approval of the north and south segments restricts the company from contemplating alternate options to growth in the central section — just like the boulevard proposed by Rethink35, or a totally depressed and lined freeway, an thought superior by the nonprofit Reconnect Austin.

“A highway … needs to be cohesive in order for traffic to flow and congestion be avoided,” they argue in the case submitting.

That cohesion can now solely be achieved by increasing the central portion of I-35, Greenfield says, whilst TxDOT ostensibly considers alternate options because it progresses by means of a full environmental assessment for that section. For instance, the schematics for the I-35 north and south initiatives present TxDOT including two to 4 managed lanes, principally categorical lanes for high-occupancy autos and transit, and in flip increasing the full quantity of lanes on the freeway. But the entire function of an categorical lane is to transfer site visitors by means of town, not cease on both finish of it, says David Adelman, an environmental law professor on the University of Texas at Austin who isn’t concerned in the lawsuit towards TxDOT.

“So if you build an express lane in the north and south, you’re pretty much committing yourself not only to having express lanes through the city, but also expanding the number of lanes,” Adelman stated. “And that’s directly impacting the options that you have available to you for the center part of the project,” he says.

TxDOT declined to reply to questions from Grist. But at a TxDOT planning convention in Houston in May, Anthony Horne, an environmental specialist at TxDOT’s environmental affairs division, defined to a crowd of TxDOT staff and consultants how the importance of a freeway challenge is evaluated in context.

“You kind of have to work the equation to try to figure out, is this something that is going to cause an issue? Are people concerned about it?” he stated.

He described initiatives with “a couple of displacements” that didn’t bear any environmental evaluation.

“Those people didn’t seem to be too concerned about it,” Horne stated. “Therefore, because there was no sense of significance to it, we could proceed.”

Other TxDOT staff and consultants confirmed that the extent of anticipated public controversy is usually a figuring out issue when deciding between an environmental affect assertion and an environmental evaluation. That public outcry ought to decide which initiatives get full environmental critiques is basically inequitable, stated Kelly Haragan, who directs UT’s environmental law clinic and isn’t concerned in the lawsuit.

“A community that can gin up a whole lot of attention about a project is probably a community that has more resources and time,” Haragan stated.

It can also be round logic, Adelman says. Public hearings can floor controversy, which is exactly the method an environmental evaluation compresses.

“There can be an interaction between the agency’s public process and the degree of public attention and salience to a particular decision,” Adelman says. “It can create perverse incentives on the part of agencies because if they’re worried about public attention, then they just want to get through the process as fast as they can. And if they can do that, then they can depress public attention, which just reinforces the determination that they’re making.”

Indeed, the environmental evaluation course of for the north and south I-35 initiatives generated simply over 800 public feedback. In comparability, since 2020, greater than 9,500 individuals have commented on the I-35 central challenge because it progresses by means of a full environmental assessment.

Now, a choose might require TxDOT to expose the complete challenge to that stage of public scrutiny. There is precedent for the federal authorities to overturn a state division of transportation’s environmental evaluation. Last yr, the Federal Highway Administration authorised a FONSI for an $800 million plan to expand Interstate 5 by means of central Portland, Oregon — after which rescinded that approval after three neighborhood teams sued the federal company, alleging that the state didn’t totally research the impacts of the proposed growth on the encircling neighborhood.

Because NEPA is a procedural law, mandating the method {that a} public company should comply with relatively than any explicit end result, there are limits to what lawsuits can accomplish. Even if the plaintiffs in the I-35 swimsuit prevail and TxDOT is required to do a single environmental affect assertion for the entire challenge, the company isn’t obligated to select an alternate with a lesser environmental affect.

“It requires them to say, essentially, here are all the bad things that we’re going to do when we have these other alternatives that do less bad things, and forces those decisions to be made under the glare of public transparency and scrutiny,” Grzezinski says.

Moritz thinks TxDOT has misplaced the best to approve its personal environmental critiques. Officials in Houston have advised him that this oversight “takes up a lot of bandwidth for the feds and that they may be disinclined to revoke or not renew” NEPA task, he says.

“And my response to that generally is: There’s levels of power and checks and balances for a reason. And a bandwidth constraint shouldn’t be determining the fate of the built environment in Texas.”

The University of Texas at Austin has been a monetary supporter of The Texas Tribune, a nonprofit, nonpartisan news group that’s funded in half by donations from members, foundations and company sponsors. Financial supporters play no function in the Tribune’s journalism. Find an entire list of them here.

When you be part of us at The Texas Tribune Festival Sept. 22-24 in downtown Austin, you’ll hear from changemakers who’re driving innovation, lawmakers who’re taking cost with new insurance policies, business leaders who’re pushing Texas ahead and so many others. See the rising speaker listing and buy tickets.