June 13. 2018
Environmentalists Appeal Ruling on Illiana Toll Road
By Susan DeMar Lafferty
Environmental groups filed a petition to ask the Illinois Appellate Court to reconsider its recent ruling against them regarding the proposed Illiana toll road.
According to the appeal this week, the Chicago Metropolitan Agency for Planning, the Metropolitan Planning Organization and the Illinois Department of Transportation failed to comply with the language of the Illinois Regional Planning Act, which states that the CMAP Board “shall” provide its “prior” “approval” of a transportation project before final approval by the MPO.
Howard Learner, executive director of the Environmental Law and Policy Center, who is representing Openlands and the Sierra Club, cited several other court cases to support their claim that the word “shall” is mandatory, not discretionary, as the court ruled.
The Illiana, a proposed 47-mile toll road connecting I-55 in Wilmington to I-65 near Lowell, Indiana, has been a controversial road project that was shelved by Gov. Bruce Rauner when he took office in January, 2015.
Environmentalists have opposed the toll road project, saying it would harm the Midewin National Tallgrass Prairie since the proposed route skirted its southern border, and calling it a “financial boondoggle” for the state.
In 2013 and 2014, IDOT sought to amend the “GO TO 2040” long range transportation plan to include the Illiana Tollway project and it had been debated by both CMAP and MPO at that time, with CMAP twice opposed to including the amendment in its 2040 plan and MPO supporting it.
Environmentalists filed the initial lawsuit in 2014, challenging the approval process for including the Illiana in the “GO TO 2040” plan.
According to the recent court petition, federal law requires that transportation projects must be approved by the MPO before they become eligible for federal funding.
CMAP was created by the Illinois General Assembly in the Illinois Regional Planning Act to ensure that transportation planning for the Chicago area is carried out in conjunction with comprehensive planning for land use, economic development, environmental sustainability and quality-of-life issues, the petition stated.
The act specifically states that the CMAP board “shall” first provide its “prior” “approval” of transportation projects and plans before the final approval by the MPO Policy Committee, according to the court document.
In the petition for a rehearing, Learner cited several cases in which the court ruled that “shall” means mandatory, not discretionary.
The Illinois Supreme Court is now hearing Oswald verse Beard, and that case should also define the meaning of “shall,” according to Learner.
“The Illinois General Assembly clearly intended to create a nondiscretionary, mandatory duty” when it wrote the Regional Planning Act, the petition stated.
On the other hand, the word “may” is used numerous times throughout the act, making the contrast “clear and easily discerned,” the document stated.
The appellate court “misconstrued the relationship” between CMAP Board and MPO and the nature of the GO TO 2040 Plan and the Illiana Tollway, it said.
“The entire purpose of GO TO 2040 as a regional comprehensive plan would be negated” if the MPO were able to push through projects “inconsistent with the other planning purposes of GO TO 2040,” the court document stated.
In the petition, Learner asked for a rehearing, or as an alternative, hold this request for a rehearing until after the state supreme court issues a ruling in Oswald verse Beard.