Getting Closer to the End: Judge Nullifies Federal Approval of Illiana Tollway

illiana-quote-from-lawsuit
One of the key phrases from Judge Alonso’s ruling.

It’s looking like the nightmarish vision of a totally unnecessary, 47-mile highway cutting through prime Illinois farmland is not going to become a reality. A federal judge ruled yesterday that the Illinois Department of Transportation failed to provide a proper Environmental Impact Statement for the Illiana Tollway.

U.S. District Court Judge Jorge Alonso wrote that the final EIS the state submitted was “arbitrary and capricious.” He also noted that the Federal Highway Administration shouldn’t have approved the EIS because the tollway’s purpose and need statement was based on “market-driven forecasts developed by [IDOT] consultants,” rather than sound policy.

The lawsuit was filed by the Environmental Law & Policy Center, representing Openlands, the Sierra Club, and the Midewin Heritage Association. They argued that the state used circular logic to justify the Illiana: IDOT’s projections for population growth in the project area were based on the the assumption that the highway would be built. “This [ruling] is an opportunity for the Illiana saga to be brought [to] an end once and for all,” said ELPC’s executive director Howard Learner.

Alonso’s decision is the latest stake in the heart of the Illiana, a terrible idea that was promoted heavily by former governor Pat Quinn and state representatives from the south suburbs. Two weeks ago, current governor Bruce Rauner ordered IDOT to suspend all existing contracts and procurements for the tollway, stating in a news release that “the project costs exceed currently available resources.” He also told IDOT to remove the Illiana from its current multi-year transportation plan.

The ruling [PDF] also noted that IDOT and its consultants met with the Chicago Metropolitan Agency for Planning and the Northwestern Illinois Regional Planning Commission to discuss population and employment forecasts for the Illiana corridor, but chose not to use those projections. That’s because CMAP’s forecasts were “based on ‘aggressive assumptions regarding infill, redevelopment & densification'” and not how people would be drawn to new subdivisions made accessible by a massive highway.

CMAP and NIRPC objected to IDOT’s market-driven projections because their respective regional plans recommend that new development should be concentrated in the existing metropolitan area, rather than replacing farmland with sprawl. In essence, the state said that growth should be geographically unconstrained and the MPOs said growth should be focused and sustainable.

While CMAP asked IDOT to issue a variation of their Environmental Impact Study using CMAP’s growth forecasts, the state never did this. Alonso noted that IDOT also didn’t address the conflict between the goals of CMAP’s regional plan and the sprawl that the Illiana would enable in the EIS, as required by federal law.

The struggle to kill the Illiana is not completely over yet. Even though the environmental analysis has been invalidated, IDOT could theoretically submit a revised plan, which might pass muster. Today the Chicago Tribune reported that unnamed transportation experts said “the transportation agencies could attempt to revise the environmental impact statement to comply with the ruling — or the ruling’s interpretation of the regulations — without an appeal.”

Moreover, the $1.3 billion tollway – which would cost Illinois taxpayers a minimum of $500 million – still sits on a list of high-priority transportation projects for the Chicagoland region, maintained by CMAP. In 2013, Quinn strong-armed the Illiana onto that roster. CMAP’s board voted against including the tollway on the list. However, then-IDOT secretary Ann Schneider garnered the necessary votes at multiple meetings of CMAP’s Policy Committee to move the project to the high-priority list.

The board and the policy committee both met last week, but neither had the Illiana on their agenda, whether as a discussion topic, or for a motion to strike it from the priority projects list. As long as the tollway still remains on that list, there’s still the potential for the State of Illinois to build this boondoggle.

The invalidated EIS, and CMAP downgrading the project, could provide Rauner with political cover to officially terminate the project without fear of a backlash from the handful of state reps who hoped the tollway would created jobs and grow their local economies. Two weeks ago, when Rauner’s announced he was freezing the project, Representative Al Riley of the 38th District, said, “This is a program that has been vetted by engineers, a program agreed to by the governors of two different states, it has passed all sorts of technical evaluation and has passed through the regulatory process.”

However, it’s looking like the tollway is toast, according to University of Illinois at Chicago transportation center director Steve Schlickman. “To have the [EIS] shot down by a federal court does seem like the Illiana is basically doomed,” Schlickman told the Trib.

  • Roland Solinski

    My concern with this type of strategy is that it opens the door for all sorts of challenges to EIS. Lakeview residents could probably find a similar factual error or mistake in the Belmont Flyover EIS, but most of us on this site feel that is a worthy project.

    The main problem is that these reports are bogus, no matter whether the project is worthy or not. Agencies spend a ton of money to produce them, but ultimately they always end up reaching the conclusion that the politicians have directed them to reach. Planners need more opportunity to express their educated opinions freely, even if ultimately the politicians are the elected officials making the decision.

  • If you read the lawsuit ruling (it’s not that long) you’ll see lots of times where planners from CMAP and NIRPC (CMAP’s counterpart in Indiana) sent objections to IDOT, thus expressing their educated opinions.

    The lawsuit ruling also said that just because the federally-designated MPO (CMAP and NIRPC, in this case) had a different idea of which forecast should be used, and IDOT and its EIS didn’t use it, doesn’t necessarily invalidate the method that IDOT and its EIS used. The ruling basically cited (based on my non-law school understanding) previous case law that said that in the case of a conflict of methodologies, the staff at IDOT should be given the benefit of the doubt.

    But that wasn’t the fatal flaw with the EIS in this case: it was the circular logic. It was that a future scenario was based on already having built the thing that was to be built, thus they didn’t actually create a “Not built” scenario, thus making the EIS non-compliant with the NEPA law.

    The main disadvantage with this process is that it takes a non-profit organization (likely) expending significant resources to mount a court case to finally highlight the faults, and then it takes a complimentary resource investment on the part of the defendant. The problem, it seems, stems from politics. Which is what you said.

  • R.A. Stewart

    Never turn your back on a bad idea, especially when it involves new roads and sprawl.

    Think of Illinois politics as Friday the 13th. The Illiana and the Peotone airport will take turns being Jason.

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