NW Indiana Times: Illiana Continues on Slow Road Through Courts

nwi times

Illiana Continues on Slow Road Through Courts
November 4, 2016
By Andrew Steele

The Illiana Expressway’s lingering presence continued this week with a court ruling affirming that federal approval of the project was based on a flawed and invalid environmental study.

But the decision by Judge Charles Norgle of the U.S. District Court of Northern Illinois leaves open the opportunity for the Indiana and Illinois departments of transportation to revise their environmental studies and continue pursuing the project.

The lawsuit was brought by the environmental groups Openlands, Midewin Heritage Association and Sierra Club. They asked the court to declare the Federal Highway Administration’s approval of the Illiana project’s Tier 2 environmental impact statement to be in violation of federal law. Approval of the Tier 2 EIS is the final step allowing a project to move forward.

But Norgle dismissed the case as moot, because the Tier 2 study was based on a Tier 1 study a federal court found to be flawed last year.

In that separate Tier 1 case, Judge Jorge Alonso ruled that the environmental assessment did not adequately consider the implications of not building the Illiana. Such a “no build” alternative is required by the National Environmental Protection Act.

And because the Tier 2 study “relied upon the invalid Tier 1 approvals,” Norgle wrote in his ruling this week, the plaintiffs’ success in the Tier 1 case “moots this (Tier 2 ) case.”

“To hear the Tier 2 case predicated on the uncompleted Tier 1,” Norgle wrote, “is akin to a farmer concerning himself with the quantity of chicken feed to purchase before the eggs have hatched.”

The Illiana Expressway would operate as a toll road stretching about 50 miles from Interstate 65 near Lowell to Interstate 55 in Illinois.

Illinois Gov. Bruce Rauner halted the project in 2014 amidst that state’s budget crisis. The Illinois Department of Transportation still considers the Illiana project “suspended,” a spokeswoman said earlier this month.

The Indiana Department of Transportation has taken on the responsibility of revising the Tier 1 EIS. An INDOT spokesman said Thursday that the agency expects to complete work by the end of the year, “allowing the project to remain on hold in ready status.”

But the Environmental Law & Policy Center, which represents the three plaintiffs, claim the ruling should end the Illiana project “once and for all.”

In a press release, the ELPC noted that Norgle’s ruling states that the Tier 2 EIS is “no longer effective.”

“Federal judges have now twice found the federal and state transportation agencies’ environmental reviews of the proposed Illiana Tollway to be invalid and illegal,” said Howard Learner, the lead attorney and executive director of the ELPC.

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