Case: 3:21-cv-00096-wmc Document #: 1 Filed: 02/10/21 Page 1 of 38
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`UNITED STATES DISTRICT COURT
`FOR THE
`WESTERN DISTRICT OF WISCONSIN
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`NATIONAL WILDLIFE REFUGE ASSOCIATION,
`DRIFTLESS AREA LAND CONSERVANCY,
`WISCONSIN WILDLIFE FEDERATION, and
`DEFENDERS OF WILDLIFE
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`NO. ____________
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`Plaintiffs,
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`v.
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`RURAL UTILITIES SERVICE,
`CHRISTOPHER MCLEAN, Acting Administrator, Rural
`Utilities Service,
`UNITED STATES FISH AND WILDLIFE SERVICE,
`CHARLES WOOLEY, Midwest Regional Director, and
`SABRINA CHANDLER, Manager, Upper Mississippi River
`National Wildlife and Fish Refuge,
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`Defendants.
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`COMPLAINT
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`Plaintiffs NATIONAL WILDLIFE REFUGE ASSOCIATION, DRIFTLESS AREA
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`LAND CONSERVANCY, WISCONSIN WILDLIFE FEDERATION, and DEFENDERS OF
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`WILDLIFE for their Complaint allege and state as follows:
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`INTRODUCTION
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`1.
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`This is a civil action for declaratory and injunctive relief under the judicial review
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`provisions of the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701–706, for the
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`Defendants’ violations of the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et
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`1
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`seq., and the National Wildlife Refuge System Improvement Act of 1997 (“National Refuge Act”),
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`16 U.S.C. §§ 668dd–668ee.
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`2.
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`This lawsuit involves the proposed controversial 101-mile Cardinal-Hickory Creek
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`(“CHC”) high-voltage transmission line with towers up to 20 stories high. The huge CHC
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`transmission line is proposed to run on a wide path from Dubuque County, Iowa, directly through
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`the protected Upper Mississippi River National Wildlife and Fish Refuge (“the Upper Mississippi
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`Refuge”), and then through southwest Wisconsin’s scenic Driftless Area, the Military Ridge
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`Prairie Heritage Area, the Black Earth Creek Conservation Area, and other vital natural resources,
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`family farms, wetlands, parklands, and communities before ending at a substation in Middleton,
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`Wisconsin.
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`3.
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`If allowed to proceed, the CHC transmission line will have significant negative
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`impacts on the environment, on wildlife, on property values, on family farms and agriculture, on
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`the outdoor recreation and tourism industry, on protected public lands, and on private conservation
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`lands both near the Mississippi River and along its entire proposed length.
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`4.
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`This lawsuit challenges two categories of federal agency actions related to the CHC
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`transmission line that were unlawful and should be set aside under the APA as arbitrary, capricious,
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`an abuse of discretion, or otherwise not in accordance with law; in excess of statutory jurisdiction,
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`authority, or limitations; without observance of procedure required by law; and unsupported by
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`substantial evidence. 5 U.S.C. § 706(2).
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`5.
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`First, Defendant Rural Utilities Service (“RUS”), which is part of the U.S.
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`Department of Agriculture (“USDA”), approved an environmental impact statement (“EIS”) for
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`the CHC transmission line that did not comply with the requirements of NEPA, 42 U.S.C. § 4321
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`et seq. The EIS improperly defined the purpose and need too narrowly for the project and did not
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`fully and fairly evaluate a proper range of alternatives. The EIS did not “rigorously explore and
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`objectively evaluate” all reasonable alternatives. The EIS did not fully and fairly analyze “all
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`direct, indirect, and cumulative impacts” of the project, in light of “all past, present, and reasonably
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`foreseeable future” transmission and other development projects in the area. Furthermore, the EIS
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`did not adequately consider greenhouse gas emissions and potential climate impacts from the
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`project and the fossil fuel-generated electricity that it would carry.
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`6.
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`Second, Defendant U.S. Fish and Wildlife Service (“USFWS”) granted a right-of-
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`way authorization for the CHC transmission line to cross the protected Upper Mississippi Refuge
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`even though the project is not a “compatible use” of the Refuge under the National Refuge Act, 16
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`U.S.C. §§ 668dd–668ee.
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`JURISDICTION AND VENUE
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`7.
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`This court has federal question jurisdiction under 28 U.S.C. § 1331 because this
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`action presents a controversy under federal laws including NEPA, the National Refuge Act, and
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`the APA, and has jurisdiction under 28 U.S.C. § 1346, because this is an action against the federal
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`government. This court has authority to grant the requested relief under 28 U.S.C. §§ 2201
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`(declaratory relief) and 2202 (injunctive relief).
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`8.
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` Almost all of the CHC transmission line is proposed to be built in the Western
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`District of Wisconsin, and therefore this is “a judicial district in which … a substantial part of the
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`events or omissions giving rise to the claim occurred, or a substantial part of property that is the
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`subject of the action is situated” within the meaning of 28 U.S.C. § 1391(e)(1). There is also
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`another related lawsuit involving the proposed CHC transmission line that is pending in the
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`Western District of Wisconsin. Plaintiffs Driftless Area Land Conservancy and Wisconsin
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`Wildlife Federation also reside in this judicial district. Venue is therefore appropriate in this district
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`under 28 U.S.C. § 1391.
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`9.
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` This action is timely under Title 41 of the FAST Act, 42 U.S.C. § 4370m-
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`6(a)(1)(A) and under 28 U.S.C. § 2401.
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`PARTIES
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`10.
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`Plaintiff National Wildlife Refuge Association (“NWRA”) is a not-for-profit
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`organization focused exclusively on protecting and promoting the 850 million-acre National
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`Wildlife Refuge System, the world’s largest network of lands and waters set aside for
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`wildlife conservation. Founded in 1975, NWRA’s mission is to conserve America’s wildlife
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`heritage for future generations through strategic programs that enhance the National Wildlife
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`Refuge System and the landscapes beyond its boundaries. Friends of Pool 9 and Friends of the
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`Refuge - Mississippi River Pools 7 & 8, two of the volunteer organizations which support the
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`Upper Mississippi Refuge, are affiliates and supporters of the National Wildlife Refuge
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`Association.
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`11.
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`NWRA has members who use and enjoy the Upper Mississippi Refuge and the
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`extensive natural resources in Wisconsin’s Driftless Area and who will be injured in fact if the
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`CHC transmission line is constructed.
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`12.
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`Plaintiff Driftless Area Land Conservancy (“DALC”) is a not-for-profit land trust
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`and conservation organization, headquartered in Dodgeville, Wisconsin, which is dedicated to
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`protecting sensitive lands, vital conservation areas, scenic landscapes, historic properties, and
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`natural resources in Wisconsin’s Driftless Area. DALC and its members maintain and enhance the
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`health, diversity, and beauty of Wisconsin’s natural and agricultural landscape through permanent
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`land protection and restoration, and other conservation, natural resources protection, and
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`preservation actions. DALC is a nationally certified land trust that was recognized as the
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`Wisconsin Land Conservancy of the Year in 2017 by Gathering Waters, Wisconsin’s Alliance for
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`Land Trusts.
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`13.
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`Plaintiff DALC has many local members who live, work, play, and own real
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`property near and in the proposed right-of-way for the proposed CHC transmission line, and who
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`will be injured in fact if the CHC transmission line is constructed.
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`14.
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`Plaintiff DALC’s members use and enjoy the Upper Mississippi Refuge and the
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`extensive natural resources in Wisconsin’s Driftless Area.
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`15.
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`Plaintiff DALC also owns conservation easements throughout the Driftless Area,
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`including an easement on the historic Thomas Stone Barn property west of Barneveld, Wisconsin.
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`The proposed CHC right-of-way would cross DALC’s easement, which covers property on both
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`the north and south sides of the road, interfere with that easement, and impair its ecological,
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`aesthetic, and cultural value.
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`16.
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`Construction of the CHC transmission line would frustrate DALC’s mission of
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`conserving natural and historical lands in the Driftless Area and, in particular, its mission to
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`conserve the lands on which it holds conservation easements.
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`17.
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`Plaintiff Wisconsin Wildlife Federation (“WWF”) is a not-for-profit conservation
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`organization dedicated to protecting wildlife habitat, conservation lands and waters, and natural
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`resources throughout the State of Wisconsin on behalf of the hunters, anglers, trappers, and other
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`individuals who are WWF members. WWF’s members use and enjoy the Upper Mississippi
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`Refuge and the extensive natural resources in Wisconsin’s Driftless Area. The CHC transmission
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`line will compromise the long-term sustainability of fish and wildlife populations, clean air, clean
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`water, and healthy forests and grasslands, and thereby injure the WWF members who live, work,
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`and play near the proposed route of the CHC transmission line.
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`18.
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`Plaintiff Defenders of Wildlife (“Defenders”) is a not-for-profit membership
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`organization that is one of the nation’s leading advocates for threatened and endangered species
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`and wildlife conservation. Founded in 1947, Defenders is headquartered in Washington D.C. and
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`maintains six regional field offices throughout the country. Defenders is dedicated to the protection
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`of all native wild animals and plants in their natural communities and the preservation of the
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`habitats upon which they depend, including National Wildlife Refuges. Defenders advocates for
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`new approaches to wildlife conservation that will help keep species from becoming threatened and
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`endangered, and Defenders employs education, litigation, research, and advocacy to defend
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`wildlife and their habitat.
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`19.
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`Defenders has members who use and enjoy the Upper Mississippi Refuge and the
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`extensive natural resources in Wisconsin’s Driftless Area and who will be injured in fact if the
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`CHC transmission line is constructed.
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`20.
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` Defendant Rural Utilities Service (“RUS”) is part of the U.S. Department of
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`Agriculture (“USDA”). The RUS operates its Electric Program, which provides loans and loan
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`guarantees to finance the construction of electric distribution, transmission, and generation
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`facilities, including system improvements, as well as demand-side management, energy
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`conservation programs, and on-grid and off-grid renewable energy systems.
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`21.
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`Defendant Christopher McLean is the Acting Administrator for the RUS, and is
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`sued in his official capacity.
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`22.
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`Defendant U.S. Fish and Wildlife Service (“USFWS”) is a bureau of the U.S.
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`Department of the Interior, and manages the National Wildlife Refuge System, including the Upper
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`Mississippi Refuge.
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`23.
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`Defendant Charles Wooley is the Regional Director for USFWS for the Midwest
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`Region, which includes the Upper Mississippi Refuge. Defendant Wooley is sued in his official
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`capacity.
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`24.
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`Defendant Sabrina Chandler is the Manager of the Upper Mississippi Refuge.
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`Defendant Chandler is sued in her official capacity.
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`GENERAL FACTS
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`25.
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` Three companies—American Transmission Company LLC (“ATC”), ITC
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`Midwest LLC (“ITC”), and Dairyland Power Cooperative (“Dairyland”) (collectively, “the
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`Developers”)—plan to construct, co-own, and operate the proposed CHC transmission line.
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`26. The CHC transmission line was first proposed more than a decade ago as part of a
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`“multi-value portfolio” of about 20 proposed new high-voltage transmission lines proposed by the
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`Midcontinent Independent System Operator (“MISO”) in the Upper Midwest region. The CHC
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`transmission line is the last of those lines to seek federal and state agency approvals.
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`27.
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` The proposed CHC transmission line would begin at the “Hickory Creek”
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`substation in Dubuque County, Iowa, then run across and through the Upper Mississippi Refuge,
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`and then cut a wide swath through the scenic southwest Wisconsin Driftless Area’s vital natural
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`resources and communities, until reaching the “Cardinal” substation in Middleton, Wisconsin. The
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`following map shows the proposed route:
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`28.
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`The proposed route for the CHC transmission line would cut directly through the
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`Upper Mississippi Refuge and cross the Mississippi River, where its towers will be almost 20
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`stories high, as shown in the following map:
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`29.
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`The Upper Mississippi Refuge was established in 1924 as a refuge and breeding
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`place for migratory birds, as well as a refuge for other birds, wildlife, fish, and plants. 16 U.S.C.
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`§ 723.
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`9
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`30.
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`This National Wildlife Refuge encompasses one of the largest blocks of floodplain
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`habitat in the lower 48 states.
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`31.
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`Bordered by steep wooded bluffs that rise 100 to 600 feet above the river valley,
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`the Mississippi River corridor and this National Wildlife Refuge provide scenic beauty and
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`productive fish and wildlife habitat unmatched in the heart of America.
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`32.
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`The Upper Mississippi Refuge covers over 240,000 acres and extends 261 river
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`miles from its north end at the confluence of the Chippewa River in Wisconsin to its south end
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`near Rock Island, Illinois.
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`33.
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`The Upper Mississippi Refuge is comprised of wooded islands, marshes, and
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`backwaters in Wisconsin, Iowa, Minnesota and Illinois, and provides a haven for a plethora of
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`unique fish, wildlife, and plants.
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`34.
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`The Upper Mississippi Refuge is designated as a Wetland of International
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`Importance pursuant to the treaty established at the Ramsar Convention on Wetlands of
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`International Importance. https://www.fws.gov/midwest/UpperMissRamsar.htm. The designation
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`of an area as a Ramsar site “embodies the government’s commitment to take the steps necessary
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`to ensure that its ecological character is maintained.” https://www.ramsar.org/about/wetlands-of-
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`international-importance-ramsar-sites. Ramsar sites “are recognized as being of significant value
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`not only for the country or the countries in which they are located, but for humanity as a whole.”
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`Id.
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`35.
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`36.
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`The Upper Mississippi Refuge is also designated as a Globally Important Bird Area.
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`The Upper Mississippi Refuge protects important habitat and stop-over grounds for
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`migratory birds.
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`37.
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`The Upper Mississippi Refuge is located within the Mississippi Flyway, a major
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`bird migration route used by more than 325 migratory bird species to travel from their breeding
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`grounds in Canada and the northern United States to their wintering grounds along the Gulf of
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`Mexico and in Central and South America.
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`38.
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`Tracking data and in-person observations have shown that the federally endangered
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`whooping crane, the tallest of North America’s birds and one of the rarest, visited the Upper
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`Mississippi Refuge in 2014 and again in 2017, in the precise area through which the transmission
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`line would be built.
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`39.
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`The whooping cranes that used the Upper Mississippi Refuge are part of the Eastern
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`Migratory population, which is the result of a major reintroduction effort by the Whooping Crane
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`Eastern Partnership, made up of state and federal agencies, nonprofits, universities, and others. In
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`January 2021, the Whooping Crane Eastern Partnership estimated the Eastern Migratory
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`Population at only 80 cranes. Power lines are a major contributing factor to whooping crane
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`mortalities. For example, one study determined that 17% of deaths in the migratory Wisconsin
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`population of whooping
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`cranes were
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`caused by
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`collisions with power
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`lines.
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`http://www.aplic.org/uploads/files/15518/Reducing_Avian_Collisions_2012watermarkLR.pdf at
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`p. 33–34.
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`40.
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`The CHC transmission line would pass over an Essential Habitat Area for the
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`federally endangered Higgins eye pearlymussel where it crosses the Mississippi River at Cassville,
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`Wisconsin.
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`41.
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`Erosion from clearing and filling the wetlands in the Upper Mississippi Refuge is
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`very likely to lead to sedimentation in the Mississippi River both at the river crossing and
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`downriver.
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`42. Mussels, including the Higgins eye pearlymussel, are very sensitive to
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`sedimentation, which can reduce the efficiency of their filter feeding and even smother mussel
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`beds. “Freshwater mussels are some of the most threatened animals in existence.”1
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`43.
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`The Essential Habitat Area at Cassville has by far the greatest native mussel density
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`of all the essential habitat areas for the Higgins eye pearlymussel.
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`44.
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`“Native freshwater mussels are a keystone species and are considered both
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`ecosystem engineers, improving habitat for other species, and indicator species important in
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`assessing the health of the ecosystem.”2 As filter-feeders, mussels filter out pollutants, silt,
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`bacteria, and other impurities and improve water quality. Their shells provide a surface for algae
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`and insect larvae to attach to, creating a place for fish to feed. Because mussels anchor themselves
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`in place, they also help stabilize river bottoms. Mussels are also a food source for fish, aquatic
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`birds, and even mammals like muskrats and otters.
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`45.
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`Once it crosses the Mississippi River, the CHC transmission line would then cut a
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`wide swath through southwest Wisconsin’s scenic Driftless Area, damaging vital natural resources
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`and communities.
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`46.
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`Unlike much of the Midwest’s landscape, the Driftless Area was not flattened by
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`glaciers. The Driftless Area’s scenic landscape includes hundreds of rolling hills with deep river
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`valleys, and it contains many rare and unique woodland, prairie, and riparian habitats. The Driftless
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`Area has more than 1,200 streams, including world-class trout fishing streams, more than 4,000
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`river miles, and a network of 600 spring-fed creeks that flow through porous limestone bedrock.
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`1 https://www.iowadnr.gov/About-DNR/DNR-News-Releases/ArticleID/807/4-Cool-Facts-You-Should-Know-
`About-Mussels.
`2 https://www.usgs.gov/centers/nwhc/science/native-freshwater-mussel-health?qt-science_center_objects=0#qt-
`science_center_objects.
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`47.
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`The Driftless Area is recognized internationally as a region of vital conservation
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`opportunity and concern.
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`48.
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`According to George Meyer, the Executive Director of Plaintiff WWF and the
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`former Secretary of the Wisconsin Department of Natural Resources: “Over the last eighty years,
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`conservatively, hundreds of thousands of dollars have been spent to restore and improve the
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`streams of the Driftless Area such as Black Earth Creek. These restorations efforts were funded by
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`federal, state and local governments, national, and state and local conservation groups, and these
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`efforts included thousands upon thousands of donated volunteer hours.”3
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`49.
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`The proposed CHC transmission line would run along and through the Military
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`Ridge Prairie Heritage Area, which is the Wisconsin Department of Natural Resources’ highest
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`priority for landscape-scale grassland protection and management in Wisconsin.
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`50.
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`The Military Ridge Prairie Heritage Area provides habitat for 14 rare and declining
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`species of grassland birds.4
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`51.
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`The Military Ridge Prairie Heritage Area is part of the larger 490,000-acre
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`protected Southwest Wisconsin Grasslands and Stream Conservation Area macrosite established
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`by the Wisconsin Department of Natural Resources.
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`52.
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`The proposed CHC transmission line would have significant adverse impacts to the
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`land, water, ecological, economic, historical, aesthetic, tourism and outdoor recreation, and
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`community resources along its entire route, both through the Upper Mississippi Refuge and
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`throughout the Driftless Area.
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`3 https://apps.psc.wi.gov/ERF/ERFview/viewdoc.aspx?docid=370578 at 11.
`4 https://www.nature.org/en-us/get-involved/how-to-help/places-we-protect/priority-area-military-ridge-prairie-
`heritage-area/.
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`53.
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`The proposed high-voltage CHC transmission line would require the construction
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`of huge transmission towers up to 20 stories high with a clear-cut right-of-way typically 150 feet
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`wide. It will present a significant visual intrusion on scenic viewsheds along its entire route and
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`for miles beyond, impairing tourism and property values.
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`54.
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`The CHC transmission line would have multiple direct, indirect, and cumulative
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`impacts on the natural ecosystems, species, ecological relationships, and environmental quality of
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`fish and wildlife habitats within and adjacent to the right-of-way.
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`55.
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`The CHC transmission line would significantly interfere with existing land use and
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`development plans in the Driftless Area where communities and the local economies depend on
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`the health and vitality of the landscape, and outdoor recreational and tourism activities.
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`56.
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`The CHC transmission line will adversely impact the rural and scenic character of
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`the area, which is highly valued by both residents and tourists alike.
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`57.
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`The CHC transmission line would cut directly across the Mississippi Flyway, both
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`within the Upper Mississippi Refuge and elsewhere in the Driftless Area.
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`58.
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`The CHC transmission line would increase the risk of bird strikes involving many
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`bird species, including but not limited to bald eagles, whooping cranes, and migratory birds
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`protected by the Migratory Bird Treaty Act of 1918, 16 U.S.C. §§703–712, which implemented
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`the 1916 Migratory Bird Treaty or Convention between Canada and the United States. Since 1918,
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`the Migratory Bird Treaty Act has been expanded to implement treaties with Mexico (1936), Japan
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`(1972), and Russia (1976).
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`59.
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`The protected Upper Mississippi Refuge is supposed to provide safe haven for
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`migratory birds.
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`60.
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`The CHC transmission line and its right-of-way would increase the risk of invasive
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`species establishment and propagation, including the introduction of invasive species into the
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`Upper Mississippi Refuge.
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`61.
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`The CHC transmission line and its right-of-way would result in habitat
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`fragmentation to the detriment of many wildlife species, especially declining grassland bird species
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`and forest interior species. These negative impacts on habitat and wildlife would occur along the
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`length of the route, including within the protected Upper Mississippi Refuge.
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`62.
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`The CHC transmission line would negatively impact agricultural lands and farming
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`operations. For example, farmers would lose otherwise useable land area around the base of
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`transmission towers located in fields because large farm equipment cannot maneuver close to the
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`bases of the towers. Construction in croplands can cause soil mixing, rutting and soil compaction.
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`Organic farms may be harmed by herbicide drift from right-of-way maintenance or through
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`construction vehicles introducing foreign plant species or chemicals.
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`63.
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`The CHC transmission line would have significant adverse effects on wetlands,
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`both directly through construction in or near the wetlands, and indirectly through runoff and the
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`propagation of invasive species along the right-of-way. This would include harmful effects on
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`wetlands within the Upper Mississippi Refuge, which has been designated as a Wetland of
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`International Importance.
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`64.
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`The CHC transmission line is not needed to meet anticipated electricity demand or
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`to ensure the reliable supply of electricity in Wisconsin or any other nearby state.
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`65.
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`Upgrading existing electricity transmission and distribution lines, enhanced power
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`line monitoring and power electronics, solar energy generation and energy storage systems on the
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`“grid edge,” demand management, and energy efficiency programs would be able to meet any
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`transmission “need” alleged for the proposed CHC transmission, and do so at lower cost and with
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`less environmental damage.
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`66.
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`The Developers would receive a 10.82% to 11.07% annual rate of return on their
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`construction and financing costs for the proposed CHC transmission line.
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`67.
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`The Developers intend to charge utility ratepayers more than $2.2 billion over the
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`40-year expected life of the proposed CHC transmission line.
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`68.
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`Some of the negative environmental effects of the proposed CHC transmission line
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`could also be avoided through alternative routes that do not cross the protected Upper Mississippi
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`Refuge or the most vital conservation lands and other parts of southwest Wisconsin’s scenic
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`Driftless Area’s natural resources.
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`69.
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`The U.S. Army Corps of Engineers (“Corps”) also granted dredge-and-fill permits
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`for the CHC transmission line project under section 404 of the Clean Water Act, 33 U.S.C. § 1344.
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`70.
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`On the Iowa side, the Rock Island District of the Corps found that the project was
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`eligible for “Nationwide Permit 12” (“NWP 12”), a general permit for utility lines.
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`71.
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`On the Wisconsin side, the St. Paul District of the Corps determined that the project
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`was eligible for the St. Paul District’s “Utility Regional General Permit” (“URGP”).
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`72.
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`The Corps renewed and readopted both NWP 12 and the URGP without the
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`environmental impact statement required by NEPA, and without the consultation with the USFWS
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`required by section 7 of the Endangered Species Act (“ESA”).
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`73.
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`The Corps’ decisions to use NWP 12 and the URGP do not meet the requirements
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`of section 404 of the Clean Water Act, and therefore the permits the Corps granted for the CHC
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`transmission line project are also invalid.
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`74.
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`Plaintiffs have sent a 60-day notice of intent to sue the Corps for violations of the
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`ESA. If the violations are not remedied within 60 days of the letter, Plaintiffs will file suit against
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`the Corps seeking declaratory and injunctive relief for violations of NEPA, the ESA, and the
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`CWA.
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`COUNT ONE:
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`THE RURAL UTILITIES SERVICE’S ENVIRONMENTAL IMPACT STATEMENT
`FOR THE PROPOSED CHC HIGH-VOLTAGE TRANSMISSION LINE DOES NOT
`COMPLY WITH THE REQUIREMENTS OF THE
`NATIONAL ENVIRONMENTAL POLICY ACT
`
`
`75.
`
`76.
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` Plaintiffs reallege each of the allegations in paragraphs 1 to 74 above.
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` NEPA is the “basic national charter for protection of the environment.” 40 C.F.R.
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`§ 1500.1(a).5 NEPA seeks to protect the environment by ensuring that federal agencies “make
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`decisions that are based on understanding of environmental consequences, and take actions that
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`protect, restore, and enhance the environment.” 40 C.F.R. § 1500.1(c).
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`77.
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`NEPA requires agencies to take a “hard look” at the environmental consequences
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`of their actions. For major federal actions with the potential for significant environmental impact,
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`NEPA requires that the agencies first prepare an Environmental Impact Statement (“EIS”).
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`78.
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`NEPA requires that an EIS must include a detailed discussion of: “(i) the
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`environmental impact of the proposed action, (ii) any adverse environmental effects which cannot
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`be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the
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`relationship between the local short-term uses of man’s environment and the maintenance and
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`enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of
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`5 This complaint cites the 2019 version of the regulations, which were in place at the time the environmental review
`for the CHC line was completed.
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`resources which would be involved in the proposed action should it be implemented.” 42 U.S.C.
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`§ 4332(2)(C).
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`79.
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`The Council on Environmental Quality (“CEQ”) rules governing environmental
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`reviews emphasize that the alternatives analysis is the “heart of the environmental impact
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`statement,” 40 C.F.R. § 1502.14, and require agencies to “[r]igorously explore and objectively
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`evaluate all reasonable alternatives,” including a “no action” alternative. Id. paras. (a), (d).
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`80.
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`An EIS must contain a statement of “purpose and need,” which is required to
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`“specify the underlying purpose and need to which the agency is responding in proposing the
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`alternatives including the proposed action.” 40 C.F.R. § 1502.13.
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`81.
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`As explained in Van Abbema v. Fornell, 807 F.2d 633 (7th Cir. 1986), “the
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`evaluation of ‘alternatives’ mandated by NEPA is to be an evaluation of alternative means to
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`accomplish the general goal of an action; it is not an evaluation of the alternative means by which
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`a particular applicant can reach his goals.” Id. at 638.
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`82.
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`“No decision is more important than delimiting what these ‘reasonable alternatives’
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`are. That choice, and the ensuing analysis, forms ‘the heart of the environmental impact
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`statement.’” Simmons v. U.S. Army Corps of Engineers, 120 F.3d 664, 666 (7th Cir. 1997) (quoting
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`40 C.F.R. § 1502.14).
`
`83.
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`In Simmons, the court concluded “that the U.S. Army Corps of Engineers defined
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`an impermissibly narrow purpose for the contemplated project. The Corps therefore failed to
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`examine the full range of reasonable alternatives and vitiated the EIS.” 120 F.3d at 667.
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`84.
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`As explained in Simmons, “[a]n agency cannot restrict its analysis to those
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`‘alternative means by which a particular applicant can reach his goals.’ Van Abbema, 807 F.2d at
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`638 (emphasis added); contra, [Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 198–99
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`Case: 3:21-cv-00096-wmc Document #: 1 Filed: 02/10/21 Page 19 of 38
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`(D.C. Cir. 1991)]. This is precisely what the Corps did in this case. The Corps has ‘the duty under
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`NEPA to exercise a degree of skepticism in dealing with self-serving statements from a prime
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`beneficiary of the project.’ Busey, 938 F.2d at 209 (Buckley, J., dissenting).” 120 F.3d at 669.
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`85. The court in Simmons further explained, “What other alternatives exist we do not
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`know, because the Corps has not looked. Perhaps the Corps is relying on a contract between
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`Marion and the Water District for Marion to supply the Water District with water if it succeeds in
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`damming Sugar Creek. But this condition depends on meeting environmental requirements, which,
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`in turn, demand exploration of alternatives free of contractual arrangements. The public interest in
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`the environment cannot be limited by private agreements.” 120 F.3d at 670.
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`86.
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`An EIS must evaluate “[p]ossible conflicts between the proposed action and the
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`objectives of Federal, regional, State, and local . . . land use plans, policies and controls for the
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`area concerned.” 40 C.F.R. § 1502.16(c). “Where an inconsistency exists, the statement should
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`describe the extent to which the agency would reconcile its proposed action with the plan or law.”
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`40 C.F.R. § 1506.2(d).
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`87.
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`An EIS must analyze cumulative impacts, 40 C.F.R. § 1508.25, defined as “the
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`im