Wisconsin’s biennial state budget was due July 1, but is delayed as a result of an impasse between the state Legislature and the governor over the transportation budget. Areas of contention include how much to spend on highway construction, how long to delay major highway expansion projects, whether to authorize higher gas taxes or other sources of additional revenue, and how much new borrowing to authorize.
A significant, ever-increasing portion of the transportation budget has been devoted to paying off previous borrowing for highway work. Meanwhile, the share of public transit costs paid by the state has been decreasing, as has the state’s share of the cost of municipalities’ construction and maintenance of local roads and streets.
Dennis Grzezinski, Yale 1975, practices at Law Office of Dennis M Grzezinski in Milwaukee, where he concentrates on environmental and environmental justice law and litigation.
Several major highway projects underway in southeastern Wisconsin involve rebuilding and expanding portions of the interstate highway system, including the Interstate 94 North-South Project between the Mitchell Interchange in Milwaukee and the Illinois border, and the Milwaukee Zoo Interchange Project on Interstate 94 in Wauwatosa. Completion of these $2 billion projects has already been delayed for a number of years due to lack of funds.
A large portion of the budget for this biennial – and for future years – is needed to complete these projects, and to deal with the nearly billion-dollar cost of the planned Interstate 94 East-West Project (between the Marquette and Milwaukee Zoo interchanges). Future reconstruction of Interstate 43 between Glendale and the Mitchell Interchange is likely to cost more than $1 billion. And there are other major projects planned elsewhere in the state.
A number of federal court lawsuits in recent years are challenging decision-making on Wisconsin highway projects. These cases primarily arise under the National Environmental Policy Act1 (NEPA), which requires preparation of Environmental Impact Statements (EIS) for major agency actions.
Review of these cases may shed some light on the imbalance between the cost of Wisconsin’s planned highway projects and the revenue available to support all of the transportation needs in the state.
The Milwaukee Zoo Interchange Project
In 2012, Milwaukee Inner-City Congregations Allied for Hope (MICAH) and the Black Health Coalition of Wisconsin sued state and federal transportation agencies and respective officials under NEPA, alleging that the EIS prepared by the defendants was inadequate in its analysis of the effects of the project, and inadequate in its analysis of reasonable alternatives to the expansion.
In response to plaintiffs’ motion for a preliminary injunction, U.S. District Judge Lynn Adelman determined that “the plaintiffs have a likelihood of success on the merits and that they are likely to suffer irreparable harm in the absence of an injunction.” The court found the EIS inadequate because:
- The EIS “does not address the cumulative impact of continuing to expand highway capacity in the region while transit capacity declines;”
- The EIS analysis of the air pollution effects of the project was based on an assumption that the regional planning commission’s recommendations for doubling transit service in the region would take place, when instead, transit service had been decreasing and there was no basis for the assumption; and
- The EIS did not address the potential growth-inducing cumulative effect of highway expansion on the southeastern Wisconsin region.”2
Following this decision, the parties engaged in mediation and the case was settled, with defendants agreeing to provide $13.5 million to operate and support bus routes between north side Milwaukee neighborhoods and locations in Waukesha and Washington counties where many job sites are located.
The Highway 23 Project
The state and federal transportation agencies decided to expand 19 miles of Highway 23, a two-lane rural highway between Plymouth and Fond du Lac in Sheboygan and Fond du Lac counties, into a four-lane expressway with a 60-foot median at an estimated cost of $168 million.
In 2011, 1000 Friends of Wisconsin sued the agencies and their officials under NEPA, alleging that the EIS was inadequate in its analysis of the effects of the project, and inadequate in its analysis of reasonable alternatives. A claim was also brought under the Federal Aid Highway Act3 that the hearing held regarding the project failed to qualify as a public hearing under the Act. The action was stayed, and the defendants prepared a Supplemental EIS and conducted a new hearing in a format which included a town hall style component.
An amended complaint challenged the Supplemental EIS as inadequate in its analysis of reasonable alternatives to the four-lane expansion. Judge Adelman found the EIS inadequate as a result of its failure to explain how defendants arrived at the future traffic projections that were used to justify the expansion and to exclude consideration of other alternatives. First, the EIS did not explain how the defendants combined the results of the two different methodologies that were stated to be the basis of the projections. Second, updated population projections for the municipalities in the region, based on the 2010 census, were included in the Supplemental EIS. They showed growth rates that were approximately one-third of those that had been used in projecting traffic growth, but defendants did not redo their traffic projections or explain their failure to do so. The court vacated the record of decision regarding the expansion, and remanded the matter to defendants.4
On remand, the Wisconsin Department of Transportation (DOT) prepared a “revised technical memorandum” which explained how they arrived at their traffic projections, and moved to reinstate the record of decision. The court denied defendants’ motion, finding that defendants’ explanation demonstrated that they “did not actually follow the methodology described in the impact statement when forecasting traffic volumes for Highway 23.” The court found the explanation for this deviation to be “not supported by the stated methodology and appears to be an after-the-fact rationalization.” In addition, the court found defendants’ explanation for failing to redo their traffic projections as a result of the more recent lower population projections to be unsupported and inadequate.5
The DOT appealed to the Seventh Circuit, but the federal defendants did not appeal. In June 2017, the Seventh Circuit, in an opinion by Judge Frank Easterbrook, dismissed the appeal for lack of a justiciable controversy. The appellate court found that the district court judgment vacating the record of decision precluded the federal agencies from funding the project, but that Wisconsin was free to proceed with the project using its own funds. Since the federal agencies had not appealed, the U.S. Department of Transportation would remain bound by the judgment no matter what would happen in the appellate court, and thus the loss of federal funds was not redressable in this appeal.6
The Waukesha West Bypass Project
In 2015, Waukesha County Environmental Action League and Coalition Opposed to the West Waukesha Bypass sued the Secretary of the Wisconsin DOT and federal transportation agencies and officials, challenging their decision to construct a four-lane, north-south bypass along the route of existing County TT on the west side of Waukesha.
The complaint challenged the EIS for the project as inadequate in:
- considering alternatives,
- having defined the purpose and need for the project so narrowly as to exclude all alternatives,
- considering indirect and cumulative effects, and
- its consideration of mitigation of adverse effects.
In addition, they raised claims under the federal highway statutes7 alleging a failure to minimize impacts on protected areas and failure of the hybrid hearing regarding the project to qualify as a “public hearing” under the statute. Motions for summary judgment were briefed and argued before U.S. District Judge Pamela Pepper earlier this year, and a decision has not yet been issued.
The I94 East-West Project
In March, NAACP Milwaukee Chapter, MICAH, and Sierra Club-John Muir Chapter sued the Secretary to the Wisconsin DOT and federal transportation agencies and officials NEPA, challenging the decision to proceed with this 3½-mile, almost billion-dollar reconstruction and expansion project that would add travel lanes in Milwaukee between the Marquette and Milwaukee Zoo interchanges. The complaint raises issues similar to those presented in the Milwaukee Zoo Interchange case. The administrative record for this case has not yet been compiled and submitted by the defendants, and U.S. District Judge J.P. Stadtmueller has entered a scheduling order requiring briefing of summary judgment motions to begin in February 2018.8
In the context of Wisconsin’s transportation budget constraints and an apparent imbalance between funds being spent on highway expansions and funds available for all other transportation needs, review of these cases might raise questions regarding Wisconsin DOT’s traffic projections and the quality of its highway planning decisions.
1 42 U.S.C. § 4321, et seq.
2 MICAH v. Gottlieb, 944 F.Supp. 2d 656, 670-673 (E.D. Wis. 2013).
4 1000 Friends of Wisconsin v. United States DOT, 2015 U.S. Dist. LEXIS 67176,*15-*25, 2015 WL 2454271.
5 1000 Friends of Wisconsin v. United States DOT, 2016 U.S. Dist. LEXIS 57413, *8-*19.
61000 Friends of Wis. Inc. v. United States DOT, 860 F.3d 480, 481-483 (7th Cir. 2017).
7 49 U.S.C. § 303 and 23 U.S.C. § 128
8 NAACP Milwaukee Chapter v. Ross, 17-CV-297, (E.D. Wis.).