environmental impact statement

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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StreetsBlog: The Illiana Tollway is Becoming a “Zombie Highway”

StreetsBlog Chicago

October 10, 2016
Just in Time for Halloween: The Illiana is Becoming a “Zombie Highway”
by Steven Vance

A new filing in the court case against the Illiana Tollway – a proposed 47-mile highway through farmland and nature preserves that would cause exurban sprawl and lead to Illinois jobs being lost to Indiana — indicates that Illinois Governor Bruce Rauner may actually be in favor of the project. In recent years it looked like Rauner was making moves to kill the project, but now it appears the Illiana is becoming a so-called “zombie highway” project that just won’t die.

Here’s a rundown of how Rauner previously indicated that he was killing the project. In January 2015, the newly elected governor suspended spending on non-essential capital projects, including the Illiana. In the first week of June 2015, he said the Illinois Department of Transportation would remove the Illiana Tollway from its capital plan.

Two weeks later a federal judge halted the planning of the new tollway by ruling that the required Environmental Impact Statement was invalid because the study used the circular logic that the tollway would be needed because of new housing that would be developed along the corridor… due to the construction of the highway. In September 2015, the U.S. DOT dropped their appeal of the ruling, effectively pulling support for the project.

Now here’s how the state is either keeping the Illiana on life support or else trying to keep the zombie under wraps. In July 2015, Rauner authorized spending $5.5 million to “wind down” the project, and to pay for some litigation fees.

In April this year, the Indiana DOT said that they would pay for rewriting the Environmental Impact Study. However, IDOT spokesman Guy Trigdell said “the approach in Illinois has not changed” and “we are not pursuing the project.”

News last week shows that IDOT currently appears to have a greater involvement in the project than previously stated. The Daily Southtown reported that John Fortmann, an IDOT engineer, filed a statement in federal court that said “IDOT is working cooperatively” with the Indiana DOT to fix the problems with the EIS that made the court rule it invalid.

Continue reading here.

Learner Op-Ed in Duluth News Tribune on Falling Oil Prices and Controversial Pipelines

Regional View: Falling Oil Prices A Game Changer for Midwestern Pipelines

By Howard A. Learner

February 29, 2016

Bakken shale oil and Canadian oil sands market prices are low, and oil production is falling. Enbridge Energy Partners just announced it is further delaying construction of both the controversial proposed new Sandpiper oil pipeline and the Line 3 replacement oil pipeline for two more years until 2019. Enbridge blamed the Minnesota Court of Appeals’ decision requiring an Environmental Impact Statement process be completed.

However, that’s likely only part of the story.

Pipeline companies are biting the bullet and deferring new projects because of oil price and production uncertainties. Before Enbridge Energy and its partners spend $2.6 billion to $3 billion on each of the Sandpiper and Line 3 replacement oil pipelines through northern Minnesota, they might pause and see whether oil prices stay low and production declines. Markets matter.

The market price for benchmark West Texas Intermediate crude oil is low at around $33 per barrel, having fallen from the $100 per barrel range in 2011 through mid-2014. JP Morgan forecasts West Texas Intermediate crude oil to average $31.50 per barrel in 2016, and Goldman Sachs pro-jects $40 per barrel. Analyst projections for 2017 through 2018 vary considerably. Low oil prices mean fewer rigs, less oil production, and less need for new pipelines.

Bakken shale oil’s break-even prices are around $40 to $45 per barrel, well above the current market price. Production costs vary depending on how rich the particular oil well is, the efficiency of the company’s operations, financing costs, and how close the rig is to infrastructure. Bakken shale oil must be transported by pipeline or rail to distant Midwestern or Texas refineries.

The number of active drilling rigs in North Dakota is the lowest since July 2009. There are now only 38 active rigs in the Bakken area, down from 204 rigs in February 2012.

According to North Dakota Department of Mineral Resources Director Lynn Helms, Bakken output fell to 1.15 million barrels a day in December 2015, down 6 percent below the all-time high in December 2014. Helms stated that oil production could fall to 1 million barrels per day by late 2016. Oil production and service companies are planning more layoffs, and there could be additional bankruptcies in June 2016 when banks often recalculate their debt limits for oil companies.

Unless and until West Texas Intermediate oil prices reach around $45 per barrel, the rig count and oil production will continue to decline in the Bakken shale oil region, meaning less demand for oil pipelines such as Sandpiper and crude shipping by rail. For example, Whiting Petroleum just announced that it will suspend its Bakken shale oil drilling projects due to low oil prices.

Canadian oil sands’ break-even prices for new production are around $80 per barrel for the “best of the best,” $90 to $100 per barrel for the “rest of the best,” and $100-plus per barrel for the “rest of the rest.” Canadian oil production likely will stagnate until global oil prices reach at least $80 per barrel. Some existing oil sands production operations have enormous sunk costs and might continue to operate as a long-term play as producers wait and hope for higher oil prices.  However, expect production to decline and no new oil sands production to start.

Less oil production means less need for new pipelines. Financing for new North American oil pipelines is drying up until bankers and other investors see oil prices rise, leading to more production. That’s the market situation facing Enbridge for its costly new Sandpiper and Line 3 replacement oil pipelines.

Oil prices have dropped dramatically over the past 15 months. That changed reality has unavoidable market consequences for both oil production and the controversial pipelines.

Howard A. Learner of Chicago is executive director of the Environmental Law & Policy Center, an advocacy organization for environmental and economic development with offices in Chicago, Duluth and other Midwestern cities.

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