Case 1:22-cv-00620 Document 1 Filed 06/26/22 Page 1 of 17
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`AUSTIN DIVISION
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`CIVIL ACTION NO. 1-cv-22-00620
`
`RETHINK35, TEXAS PUBLIC
`INTEREST RESEARCH GROUP, AND
`ENVIRONMENT TEXAS
`Plaintiffs
`
`vs.
`
`TEXAS DEPARTMENT OF
`TRANSPORTATION; AND MARC D.
`WILLIAMS, IN HIS OFFICIAL
`CAPACITY AS EXECUTIVE
`DIRECTOR OF THE TEXAS
`DEPARTMENT OF
`TRANSPORTATION
`Defendants
`
`
`
`
`
`ORIGINAL COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
`
`1.
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`Rethink35, Texas Public Interest Research Group “(TexPIRG”), and Environment
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`Texas bring this civil action against the Texas Department of Transportation (“TxDOT”), and
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`Marc D. Williams, in his official capacity as its Executive Director, for declaratory and injunctive
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`relief pursuant to the provisions of the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701–
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`706, and the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et. seq. and its
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`implementing regulations.
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`2.
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`This litigation arises from the Defendants’ decisions to expand and widen Interstate
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`Highway 35 between State Highway 45 North and State Highway 45 Southeast. (“I-35 Project”,
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`“I-35 Capital Express Program”, or “the Project”). The I-35 Capital Express Program proposes to
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`widen and make other alternations to 28 miles of I-35 between SH 45 North and SH 45 Southeast.
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`Defendants have improperly divided the Project into three smaller projects or segments—North,
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`Central, and South. The North Project covers the section of I-35 from SH 45 North to U.S. Route
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`290 East. The Central Project involves the portion of I-35 from U.S. 290 East to SH 71/Ben White
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`Case 1:22-cv-00620 Document 1 Filed 06/26/22 Page 2 of 17
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`Boulevard, with additional fly overs at I-35 and U.S. 290 East. Lastly, the South Project comprises
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`of the section of I-35 from SH 71/Ben White Boulevard to SH 45 Southeast.
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`3.
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`Rethink35, TexPIRG, and Environment Texas file this lawsuit to challenge the
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`arbitrary and capricious actions by a state agency and its officials that are attempting to circumvent
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`the procedural and substantive requirements of NEPA and the constraint on arbitrary and
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`capricious decision-making found in the APA.
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`
`
`I.
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`JURISDICTION
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`4.
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`This action arises under NEPA, 42 U.S.C. § 4321 et. seq., and its implementing
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`regulations, especially those of the Council on Environmental Quality (“CEQ”) found at 40 C.F.R.
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`§ 1500 et. seq., and the Federal Highway Administration (“FHWA”), 23 C.F.R. § 770 et. seq.
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`Judicial review is sought pursuant to the Administrative Procedure Act (“APA”), 5 U.S.C. §§701–
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`706. This Court has jurisdiction over the case pursuant to 28 U.S.C. § 2201 (declaratory judgment),
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`28 U.S.C. § 2202 (injunctive relief), and 5 U.S.C. §§ 552, 701–706, for violation of, inter alia, the
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`APA and NEPA.
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`
`
`II.
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`VENUE
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`5.
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`Venue is proper in this district pursuant to 28 U.S.C. §§ 1391(b), (c)(2), and (e)
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`because the location of the property where the proposed expansion of I-35 is to take place is located
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`within this district, Defendants reside in the district maintaining offices at Texas Department of
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`Transportation 125 East 11th Street, Austin, Texas 78701. Rethink35, TexPIRG, and Environment
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`Texas members reside in the district and these organizations maintain offices within the district.
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`Rethink35 maintains an office at 92 Navasota Street, Austin, Texas 78702. TexPIRG maintains an
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`office at 200 E 30th Street, Austin, Texas 78705. Environment Texas maintains an office at 200
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`East 30th Street, Austin, Texas 78705.
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`
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`III.
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`PARTIES
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`6.
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`Rethink35 is an association of supporters sponsored by Safe Streets Austin,
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`TexPIRG is a non-profit corporation, and Environment Texas is a citizen-based environmental
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`advocacy organization. These organizations are made up of citizens concerned about public health
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`and safety of residents living directly adjacent or in the immediate vicinity of the proposed I-35
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`Capital Express North, Central, and South projects.
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`7.
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`The Texas Department of Transportation is a state agency of the State of Texas and
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`may be served at 125 East 11th Street, Austin, Texas 78701–2483.
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`8.
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`Marc D. Williams is sued in his official capacity as Executive Director of the Texas
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`Department of Transportation and may be served at 125 East 11th Street, Austin, Texas 78701–
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`2483.
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`
`
`IV.
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`STANDING
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`9.
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`Rethink35, TexPIRG, and Environment Texas are organizations whose supporters
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`are citizens living directly adjacent or in the immediate vicinity of the proposed I-35 Capital
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`Express North, Central, and South projects. Many supporters will be directly affected by the
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`negative impacts associated with this highway expansion.
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`10.
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`Rethink35 is an organization whose supporters are committed to exploring
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`alternative community proposals instead of expanding I-35 in Austin. TexPIRG is an organization
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`whose supporters are dedicated to preserving and advocating for a healthier and safer community.
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`Environment Texas is an organization advocating for a greener and healthier communities on
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`behalf of its supporters.
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`11.
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`Rethink35, TexPIRG, and Environment Texas have supporters that will be directly
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`affected by the air pollution, noise pollution, and other impacts from the proposed expansion of
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`these projects. Thus, the citizens within these organizations are uniquely affected by this proposed
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`action of TxDOT.
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`a. Initial Studies and Scoping
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`V.
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`BACKGROUND FACTS
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`12.
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`Between the late 1980s and early 2000s, TxDOT Austin District undertook the I-
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`35 Major Investment Study that proposed improvements along I-35 from Georgetown to Buda,
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`Texas. This study concluded in 2004. However, due to funding issues, implementation problems,
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`and lack of community support none of the improvements identified in this study moved forward.
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`13.
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`In 2010, the City of Austin committed to funding a $1.5 million feasibility study to
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`explore improving operations on I-35 through downtown.
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`14.
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`A year later, TxDOT Austin District launched the Mobility35 Program, also known
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`as the I-35 Capital Area Improvement Program that focused on modifications to I-35 in Travis,
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`Hays, and Williamson counties.
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`15.
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`In 2013, TxDOT released the I-35 Capital Area Improvement Program Corridor
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`Implementation Plan for Travis County, which identified modifications for I-35. A year later, an
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`updated plan was released that included Travis, Hays, and Williamson counties.
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`16.
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`In 2015 individual projects identified on the north and south ends of the study area
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`are environmentally cleared as part of the Mobility35Prgram and construction begins
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`accommodating additional mainlanes as part of the design.
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`17.
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`Between 2016 and 2017, TxDOT conducted “open houses” for the North16,
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`Central7, and South10 projects. The current I-35 Capital Express North, Central, and South
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`projects considered some concepts and feedback from these projects.
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`18.
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`The Texas Transportation Commission approved state and federal gas and sales tax
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`dollars for the new I-35 Capital Express North and South projects in 2019.
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`19.
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`In 2020, the Texas Commission approved $3.4 billion in discretionary funds for I-
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`35 Capital Express Central project. Moreover, the Capital Area Metropolitan Planning
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`Organization (“CAMPO”) committed $633 million to the Central project.
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`20.
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`After the Central project became fully funded at $4.9 billion, TxDOT launched an
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`Environmental Impact Statement for the project.
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`21.
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`Public Hearings for the North and South projects and the second public and agency
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`scoping meeting for the Central project were hosted in 2021.
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`b. FHWA Delegates NEPA Duties to TxDOT
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`22.
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`On December 16, 2014, TxDOT took over responsibilities for NEPA compliance
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`under a Memorandum of Understanding (“MOU”) with the Federal Highway Administration
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`pursuant to 23 U.S.C. § 327(a)(2)(A). Appropriately, the same federal environmental and
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`administrative law standards that would otherwise apply to federal agencies, like FHWA, in this
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`context apply to TxDOT. See id. § 327(a)(2)(C) (“State shall assume responsibility under this
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`section subject to the same procedural and substantive requirements as would apply if the
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`responsibility were carried out by the Secretary.”). In accordance with the MOU, TxDOT became
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`the lead agency for the I-35 Capital Express North, Central, and South projects environmental
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`reviews. Additionally, TxDOT explicitly waived the Eleventh Amendment immunity and
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`consented to federal court jurisdiction for all responsibilities assumed pursuant to the MOU. As of
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`December 9, 2019, the MOU has been renewed for another five years.
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`23.
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`As detailed in this complaint, TxDOT has failed to fully comply with their duties
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`under NEPA’s environmental review, the Council on Environmental Quality’s NEPA regulations,
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`and FHWA’s environmental review regulations. As a result of TxDOT’s failure to comply,
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`TxDOT has significantly increased the environmental impacts that citizens and residents along the
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`project areas will be exposed to, impacts that are a direct result of this project. Furthermore,
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`TxDOT has failed to comply with the substantive requirements of NEPA’s environmental review,
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`the CEQ’s NEPA regulations, and FHWA’s environmental review regulations in violation of the
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`laws and regulations.
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`c. TxDOT’s Environmental Assessments and Findings of No Significant Impacts
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`24.
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`Between 2019 and 2021, TxDOT conducted environmental studies for the I-35
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`North and South projects. The environmental studies are currently ongoing for the Central Project.
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`25.
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`TxDOT held open houses for the North and South projects. The open house for the
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`North project was held on October 24, 2019 and a virtual option was available for October 24 to
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`November 8, 2019. The open house for the South project was held on October 17, 2019, with a
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`virtual option available from October 17 to November 1, 2019.
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`26.
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`In March 2021, TxDOT released the draft environmental assessment (“EA”) for the
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`South project. In April 2021, TxDOT released the draft EA for the North project.
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`27.
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`For the South project, TxDOT then held virtual and in-person public hearings that
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`began on April 27 through May 26, 2021. Virtual and in-person public hearings for the North
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`project, began on May 10 through June 10, 2021.
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`28.
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`In December 2021, TxDOT released the final environmental assessments for both,
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`the North and South projects.
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`29.
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`On December 17, 2021, TxDOT signed the Finding of No Significant Impact
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`(“FONSI”) for the I-35 North project. A few days later on December 21, 2021, TxDOT signed the
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`FONSI for the I-35 South project.
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`30.
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`On January 28, 2022, TxDOT published its Notice of Final Agency Actions on
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`Proposed Highway Projects in Texas which included the I-35 North and I-35 South projects. 87
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`Fed. Reg. 4708. This lawsuit is timely filed within the applicable statute of limitations. 23 U.S.C.
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`§ 139(l).
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`d. TxDOT’s Still Pending Central Timeline
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`31.
`
` TxDOT held the first virtual public scoping meeting for the I-35 Central project
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`November 12 to December 31, 2020. TxDOT aimed to gather input on the project and to provide
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`the public an opportunity to review the project and present comments. Another virtual public
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`scoping meeting was held March 11 to April 9, 2021.
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`32.
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`A community working group, CapEx VOICE, was put in place to conduct a couple
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`meeting. Some meetings were held on: May 26, 2021; July 12, 2021; September 30, 202121;
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`December 14, 2021; January 25, 2022; and April 12, 2022. The meetings allowed TxDOT to
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`discuss certain project aspects, including accommodation for bicyclists and pedestrians.
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`33.
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`Additionally, TxDOT held pop-up events on: August 6, 2021; March 22–24, 2022;
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`April 10, 2021; and April 23, 2022 to provide updates on the project, among other information.
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`34.
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`On August 10, 2021, TxDOT held a public meeting. Afterwards, a virtual public
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`meeting was held from August 10 to September 24, 2021.
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`e. I-35 Capital Express Entire Project Details
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`35.
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`I-35 Capital Express North spans along I-35 between SH 45 N to US 290 E. This
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`project adds one non-tolled high-occupancy vehicle (“HOV”) managed lane in each direction. In
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`addition, North project, reconstructs bridges, adds a diverging diamond interchange at Wells
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`Branch Parkway, adds pedestrian and bicycle paths, and makes other mobility changes.
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`36.
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`I-35 Capital Express Central is about 8 miles long down I-35 from US 290 E to SH
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`71/Ben White Blvd. This portion removes the existing I-35 decks, lowers the roadway, and adds
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`two non-tolled HOV managed lanes in each direction. This segment also reconstructs east-west
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`cross-street bridges and adds pedestrian and bicycle paths.
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`37.
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`I-35 Capital Express South covers I-35 between SH 71/Ben White Boulevard to SH
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`45 SE. The segment adds two non-tolled HOV managed lanes in each direction and reconstructs
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`bridges. The project also adds pedestrian and bicycle paths.
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`
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`VI. CAUSES OF ACTION
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`38.
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`The facts set forth in paragraphs 12 to 37 are adopted herein.
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`
`CAUSE OF ACTION NO. 1: TxDOT VIOLATED NEPA BECAUSE IT IMPROPERLY
`SEGMENTED THE I-35 PROJECT INTO NORTH, CENTRAL, AND SOUTH SECTIONS
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`
`39.
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`Under NEPA, segmentation of highway projects is improper when it is done to
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`avoid giving adequate consideration to environmental effects.
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`40.
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`According to FHWA regulations, any action evaluated under NEPA as a categorical
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`exclusion (“CE”), environmental assessment (“EA”), or environmental impact statement (“EIS”)
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`must: (1) connect logical termini and be of sufficient length to address environmental matters, (2)
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`have independent utility or significance, and (3) not restrict consideration of alternatives for other
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`reasonably foreseeable transportation improvements. 23 C.F.R. § 771.111(f). Independent utility
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`or significance represents that an action is usable and is a “reasonable expenditure even if no
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`additional transportation improvements in the area are made”. 23. C.F.R. § 771.111(f)(2).
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`41.
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`Additionally, the CEQ regulations state that agencies evaluate “proposals or parts
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`of proposals that are related to each other closely enough to be, in effect, a single course of action.”
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`40 C.F.R. § 1502.4(a).
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`42.
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`TxDOT states that the I-35 Capital Express Program improves 28 miles of I-35
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`between SH 45 North and SH 45 Southeast. Program features include relief of congestion;
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`enhancement of safety; improve traffic management, operations, and regional mobility; enhanced
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`bicycle and pedestrian paths; improve movement of freight; and more. The Program is then divided
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`into three portions—North, Central, and South projects. According to information regarding the I-
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`35 Capital Express Program, it appears that TxDOT’s main concern regarding I-35 is overall
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`congestion and mobility.
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`43.
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`In order to fully address congestion and mobility on I-35, each project (North,
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`Central, and South) relies on the building of subsequent segments. Congestion will only be
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`alleviated, and mobility improved if all three segments are completed. These three projects are so
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`intertwined and completely rely on each of the other projects to be built. Thus, each project—
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`North, Central, and South—does not have independent utility.
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`44. Moreover, segmenting this project into three smaller portions severely limits the
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`number of alternatives that can be considered for each project. Segmentation of a project cannot
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`restrict the consideration of alternatives for other reasonably foreseeable transportation
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`improvements. The North, Central, and South projects are all reasonably foreseeable transportation
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`improvements, as they can all be found in the Texas Uniform Transportation Program (“UTP”).
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`The UTP is TxDOT’s 10-year plan guiding transportation development in the state.
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`45.
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`Due to the way TxDOT segmented the I-35 Capital Express project, alternatives
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`will be restricted. All alternatives are dependent on those chosen in each project (North, Central,
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`and South projects). For instance, the North project would restrict the alternatives considered for
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`the Central and South projects, and vice versa. A highway—especially one through a major urban
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`and downtown area—needs to be cohesive in order for traffic to flow and congestion be avoided.
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`46.
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`Furthermore, alternatives like the one presented by Reconnect Austin are more
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`difficult to implement or even potentially unviable options due to the improper segmentation.
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`Reconnect Austin proposes that the portion of I-35 that runs through downtown Austin be buried
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`and capped to allow for more green and recreational spaces. This proposed alternative addresses
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`congestion, mobility, connectivity, and other environmental impacts. However, alternatives like
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`Reconnect Austin may be restricted as viable options due to the interconnectivity of all the
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`alternatives for the North, Central, and South projects.
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`47.
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`All three projects aim to include non-tolled high-occupancy vehicle (“HOV”)
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`managed lanes. HOV lanes are interconnected and must run cohesively. Again, the alternatives
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`analyzed and considered for each segment must all align with the alternatives considered in the
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`other projects, which limits the alternatives for each project. TxDOT has restricted the alternatives
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`it can consider for each I-35 project.
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`48.
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`The I-35 North, Central, and South projects do not have independent utility and
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`each project restricts the consideration of alternatives for the other projects. Therefore, TxDOT
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`improperly segmented the I-35 Capital Express project. TxDOT acted arbitrarily and capriciously,
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`and not in accordance with law when it improperly segmented the I-35 Capital Express project
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`into three projects—North, Central, and South. 5 U.S.C.A. § 706.
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`CAUSE OF ACTION NO. 2: TxDOT VIOLATED NEPA BY FAILING TO CONDUCT AN
`ENVIRONMENTAL IMPACT STATEMENT
`
`
`49.
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`The CEQ and FHWA regulations require an Environmental Impact Statement
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`(“EIS”) for actions that significantly affect the environment. 40 C.F.R. § 1502.1; 23. C.F.R.
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`§ 771.115(a).
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`50.
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`An EA is defined as “a concise public document…” to “support its determination
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`of whether to prepare an environmental impact statement or a finding of no significant impact…”
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`40 C.F.R. § 1508.1(h). If an agency prepares an EA and determines that the proposed action will
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`not significantly affect the environment, it may prepare a FONSI.
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`51.
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`A FONSI briefly presents “the reasons why an action…will not have a significant
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`effect on the human environment and for which an environmental impact statement therefore will
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`not be prepared.” 40 C.F.R. § 1508.1(l). The issuance of a FONSI acknowledges that the action
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`under review has no significant impact on the environment and acknowledges the agency has
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`fulfilled its NEPA obligations. Issuance of a FONSI is also an acknowledgment that the agency
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`has fulfilled its NEPA obligations. Additionally, the issuance of a FONSI also constitutes a final
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`agency action that is subject to review under the APA.
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`52.
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`However, if an agency determines that the proposed action significantly affects the
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`environment, then the agency must commence the preparation of an EIS. 23. C.F.R. § 771.119 (i).
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`All actions that significantly affect the environment require an EIS. 23. C.F.R. § 771.115(a).
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`53.
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`The I-35 Capital Express projects—both
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`individually and collectively—
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`significantly affect the environment requiring that TxDOT prepare an EIS. The Capital Express
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`projects each fail to fully evaluate a variety of environmental impacts including impacts on water
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`resources and noise quality.
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`54.
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`TxDOT fails to fully evaluate the impacts on water resources that result from the
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`North and South projects. For instance, the North project overlays the Edwards Aquifer Transition
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`Zone. The Edwards Aquifer is the main source of water for San Antonio, Texas and the
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`surrounding areas. Surface water infiltration into the aquifer may occur from the Transition Zone.
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`TxDOT states that best management practices (“BMPs”) are not required by the TCEQ Edwards
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`Aquifer Rules. TxDOT does not mention any analysis that has been completed or mitigation that
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`will be provided to prevent contamination of the Edwards Aquifer.
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`55.
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`Both, the North and South projects, significantly impact the water resources within
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`their respective project areas. For example, the South project impacts twelve water features in the
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`project area. TxDOT has failed to fully analyze the impacts that each project would have on the
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`respective water resources within their project areas. The North, Central, and South projects all
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`have significant impacts on water resources within their project areas. Hence, TxDOT should have
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`prepared an EIS and its failure to do so is a violation of NEPA.
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`56.
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`The South project also significantly impact the noise quality within their respective
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`project areas. Noise levels predicted by TxDOT in the South project EA exceed 66 dBA at most
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`locations along the proposed highway expansion project. Noise levels that equal or exceed dBA
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`are considered to create noise impact. The South project shows noise impact to 35 receptor
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`locations along the project area. The EA proposes a noise abatement barrier for only 2 of the 35
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`receptor locations where noise levels are exceeded. The EA lacks any description of the types of
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`impacts that would occur on those 33 locations for which noise abatement was not provided.
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`57.
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`The North project EA states that noise impact to 52 receptor locations along the
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`highway expansion area. The EA proposes a noise abatement barrier for only 8 of the 52 receptor
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`locations where noise levels are exceeded. TxDOT fails to provide any description of the types of
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`impacts at those receptor locations being provided noise abatement. Both, the North and South
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`EAs fail to fully and fairly disclose the noise impacts arising from the highway expansion in
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`violation of NEPA and FHWA regulations.
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`58.
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`TxDOT has failed to fully analyze the impacts that each project would have on the
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`noise quality within their project areas. The projects all have significant impacts on noise and do
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`not fully address the mitigation measures. Therefore, TxDOT should have prepared an EIS and its
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`failure to do so is a violation of NEPA.
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`59.
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`Additionally, the improper segmentation has led to TxDOT’s failure to correctly
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`study and analyze the environmental impacts of the three projects. Collectively, the I-35 Capital
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`Express projects—North, Central, South—would significantly affect the environment. This
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`includes impacts like noise, air, water, transit, local connectivity, and more. TxDOT failed to
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`analyze the impacts of all three projects on the environment and prepare an EIS.
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`60.
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`An EIS had not been conducted for the proposed projects in violation of CEQ and
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`FHWA regulations, and thus in violation of NEPA. TxDOT acted arbitrarily and capriciously, and
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`not in accordance with law when it decided to compose only an EA and not an EIS. Moreover,
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`TxDOT acted arbitrarily and capriciously, and contrary to law when it elected not to prepare an
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`EIS, and instead issued the December 2021 FONSIs. 5 U.S.C.A. § 706.
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`CAUSE OF ACTION NO. 3: TxDOT VIOLATED NEPA BY FAILING TO TAKE A
`“HARD LOOK” AT CUMULATIVE IMPACTS
`
`
`61.
`
`Federal agencies are required by NEPA to take a “hard look” at the consequences
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`of their actions in preparing detailed studies for projects that will significantly impact the
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`environment and in deciding how much study is required. 42 U.S.C. § 4332(2)(C).
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`62.
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`Cumulative impacts are defined by the CEQ as, “effects on the environment that
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`result from the incremental effects of the action when added to the effects of other past, present,
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`and reasonably foreseeable actions… Cumulative effects can result from individually minor but
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`collectively significant actions taking place over a period of time.” 40 C.F.R. § 1508.1(g)(3).
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`63.
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`TxDOT determined that a cumulative impact analysis is not required for the North
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`or South projects. As justification TxDOT stated that neither project would have a substantial
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`direct or indirect impact on any resource. TxDOT also noted that impacts to waters of the United
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`States, a resource in poor and declining health, would occur; however, impacts would not exceed
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`specified limits of the USACE NWPs. Lastly, TxDOT asserts that no other impacts to resources
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`in poor and declining health would occur as a result of either project.
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`64.
`
`TxDOT specifically states that this project would have “minor” impacts on waters
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`of the United States. However, has failed to analyze the effects that these two projects—I-35 North
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`and South—would have when added to the effects of other actions. As mentioned above, the North
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`project overlays the Edwards Aquifer Transition Zone and TxDOT has failed to analyze the
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`impacts that the project may have to this water resource. Collectively I-35 North, Central, and
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`South could have cumulative effects on the waters of the United States. TxDOT has refused to
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`prepare cumulative impact analyses for the I-35 North and South projects, which is a violation of
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`NEPA.
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`65.
`
`The North EA and the South EA fail to mention, much less analyze the cumulative
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`impacts of each other as “past, present, and reasonably foreseeable actions” even though they were
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`completed just days apart. And both EAs fail to mention, much less analyze the cumulative impacts
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`in light of the pending Central project as “present, and reasonably foreseeable action[].” 40 C.F.R.
`
`§ 1508.1(g)(3).
`
`66.
`
`TxDOT failed to take a hard look at the consequences of the I-35 Capital Express
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`projects. In particular, TxDOT failed to take a hard look at the cumulative impacts of the I-35
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`Capital Express projects. Therefore, TxDOT’s actions were arbitrary, capricious, not in accordance
`
`with law, an abuse of discretion, and contrary to NEPA. 5 U.S.C.A. § 706.
`
`CAUSE OF ACTION NO. 4: TxDOT FAILED TO COMPLY WITH THE FULL
`DISCLOSURE REQUIREMENTS OF NATIONAL ENVIRONMENTAL POLICY ACT
`
`
`67.
`
`NEPA requires full and fair disclosure of environmental impacts of the proposed
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`action as set out in the regulations of the CEQ. 40 C.F.R. § 1508.8.
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`Case 1:22-cv-00620 Document 1 Filed 06/26/22 Page 15 of 17
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`68.
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`To begin, TxDOT has not fully and fairly disclosed all possible impacts to harming
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`the project areas’ noise quality and water resources. TxDOT has a duty under NEPA to disclose
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`and evaluate the impact of the expansion of I-35 on noise quality. TxDOT has not fully evaluated
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`the adverse effects of the Project on the noise quality either during or after construction, resulting
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`in a lack of full disclosure. TxDOT has also failed to fully and adequately examine alternative
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`courses of action.
`
`69.
`
`Additionally, NEPA and the CEQ regulations require that an EA discuss
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`alternatives and the environmental impacts of the proposed action and alternatives. 40 C.F.R.
`
`§ 1501.5(c)(2). In the North and South project EAs, TxDOT failed to fully and adequately
`
`examine, analyze, and disclose alternative courses of action as required. Both EAs fail to mention
`
`or analyze any other alternatives. Instead, only the proposed action and the no-build alternative are
`
`discussed. TxDOT “preliminarily eliminated” all other alternatives before the EAs and did not
`
`undertake any alternative analysis within their NEPA documentation. Other more unique
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`alternatives were suggested at the public meetings that TxDOT held for the North and South
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`projects. However, there is no discussion as to whether any of these suggested alternatives were
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`evaluated.
`
`70.
`
`The North and South EAs fail to include the evaluation of alternatives resulting in
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`inadequate EAs and a violation of NEPA. TxDOT acted arbitrarily and capriciously, and contrary
`
`to law for publishing an EA that lacks a full and fair evaluation of alternatives and for deciding to
`
`move forward with the proposed alternative without making a full and fair evaluation of all
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`alternatives.
`
`71.
`
`TxDOT fails to examine the I-35 Capital Express projects’ disproportionate
`
`impacts on low-income and minority populations in the North and South EAs. TxDOT has a duty
`
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`Case 1:22-cv-00620 Document 1 Filed 06/26/22 Page 16 of 17
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`to address environmental justice. Exec. Order No. 12898, 59 C.F.R. § 7629 (1994). Environmental
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`justice aims to address the disproportionate health impacts on minority and low-income
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`communities.
`
`72.
`
`In the North EA, TxDOT simply states that the displacement of businesses within
`
`the environmental justice (“EJ”) community are not a significant disproportionate impact because
`
`those businesses do not specifically cater to EJ communities. The South EA explains that advanced
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`notice of construction of the project will cure adverse impacts to the minority and low-income
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`populations that are dispersed all throughout the project area. Both the North and South EAs fail
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`to actually evaluate, analyze, and discuss the impacts that EJ communities will face. Thus, TxDOT
`
`has failed to fully and fairly disclose impacts on low-income and minority populations.
`
`73.
`
`In addition, TxDOT has failed to analyze the I-35 Project’s impacts on climate
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`change. Neither the North nor South EA provide critical discussions related to climate change. For
`
`instance, TxDOT fails to provide any assessment or information regarding the emissions that may
`
`result from the increased traffic volumes caused by these projects. Therefore, TxDOT fails to fully
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`and fairly disclose impacts on climate change.
`
`74.
`
`The EAs of the North and South projects also do not acknowledge the impacts that
`
`may arise during construction. Impacts on congestion, connectivity, and mitigation measures need
`
`to be addressed; thus, it is a failure to fully disclose. TxDOT’s actions and failure to fully and fairly
`
`disclose health impacts were arbitrary, capricious, not in accordance with law, an abuse of
`
`discretion, and contrary to NEPA. 5 U.S.C. § 706.
`
`
`
`
`
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`Case 1:22-cv-00620 Document 1 Filed 06/26/22 Page 17 of 17
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`
`
`VII. RELIEF REQUESTED
`
`75.
`
`Rethink35, TexPIRG, and Environment Texas respectfully request that this Court
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`enter a judgment in favor, and:
`
`a. Declare that Defendants failed to complete an environmental impact statement that
`
`complies with NEPA;
`
`b. Declare that Defendants violated NEPA and the APA by improperly segmenting
`
`the I-35 Capital Express project into North, Central, and South portions;
`
`c. Declare that Defendants violated the APA and NEPA by failing to take a hard look
`
`at cumulative impacts resulting from the I-35 Capital Express projects;
`
`d. Declare the Defendants violated APA and NEPA by failing to take a hard look at
`
`significant environmental impacts resulting from the I-35 Capital Express projects;
`
`and
`
`e. Grant Plaintiff such other relief as may be necessary and appropriate, or as the Court
`
`deems just and proper.
`
`June 26, 2022
`
`Respectfully submitted,
`
`IRVINE & CONNER PLLC
`
`by: /s/ Charles Irvine .
`Charles Irvine
`Attorney in Charge
`Texas Bar No. 24055716
`charles@irvineconner.com
`Janet Campos
`Texas Bar No. 24096157
`janet@irvineconner.com
`4709 Austin St.
`Houston, Texas 77004
`713.533.1704
`713.524.5165 (fax)
`Attorneys for Rethink35, TexPIRG,
`and Environment Texas
`
` 17
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`