Federal lawsuit against ALDOT

7/17/2019 Federal lawsuit against ALDOT

http://slidepdf.com/reader/full/federal-lawsuit-against-aldot 1/22

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

JOHNATHAN AUSTIN, RANDALLWOODFIN, JAMES CLARK, DARRELO’QUINN, AMIE EVANS, TERESACAROL, MERRIAM MCLENDON,

SHIRLEY ELLIS,

Plaintiffs,

v.

ALABAMA DEPARTMENT OFTRANSPORTATION; JOHN R.COOPER, DIRECTOR, ALDOT;

FEDERAL HIGHWAYADMINISTRATION; and MARKBARTLETT, DIVISIONADMINISTRATOR, FHWA,

Defendants.

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NO. -CV-

COMPLAINT FOR DECLARATORY RELIEF

1. Plaintiffs Johnathan Austin, Randall Woodfin, James Clark, Darrell O’Quinn, Amie Evans,

Teresa Carol, Merriam McLendon, and Shirley Ellis by and through their undersigned counsel of

record, files this Complaint. Pursuant to Federal Rule of Civil Procedure 57 and Local Rule 7.1.

Plaintiff’s Disclosure Statement is attached hereto as Exhibit 1.

INTRODUCTION

2. This action arises from and relates to serious violations of the National Environmental Policy Act

of 1969 (“NEPA”), 42 U.S.C. § 4321 et. seq., in connection with Defendants’ decision to

authorize, fund, and otherwise advance construction of the “Alabama Department of

Transportation (“ALDOT”) Project IM-I059 (367) I 59-20 Corridor Improvements, Jefferson

County, Alabama” (“Project”), which runs through the heart of downtown Birmingham,

Alabama. The ostensible purposes of the Project are to address the structurally deficient bridge

FI 2015 Oct-13 P

U.S. DISTRICT

N.D. OF AL

Case 2:15-cv-01777-JEO Document 1 Filed 10/13/15 Page 1 of 22



COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF, Austin et. al. v. ALDOT and FHWA

2

along I-59/20 and to improve the traffic operations and access through the City of Birmingham’s

Central Business District (“CBD”). The Alabama Department of Transportation (“ALDOT”)

seeks to achieve those objectives through construction of an elevated 10-lane highway slicing

downtown Birmingham in half, with traffic roaring just a few feet from the Birmingham Art

Museum, Boutwell Auditorium, Jefferson County Criminal Justice Center and the Alabama

School of Fine Arts on one side and the Birmingham Jefferson Civil Center (and its considerable

land holdings), the Sheraton Inn, the Weston Hotel and the new Uptown Entertainment District

development project on the other.

3.

The purpose of the project is to address the structurally deficient bridge along I-59/20 and to

improve the traffic operations and access through the City of Birmingham’s Central Business

District. The Project expands six lanes to ten lanes and removes all but one exit.

4. This Project, as presently conceived, will endanger ongoing revitalization and the entire budding

downtown development area. ALDOT has been apprised of significant negative socioeconomic

impacts through the NEPA public comments process, numerous studies, and government letters,

yet it completely and illegally ignores these issues and offers no analysis of them in its defective

environmental study document, in violation of the applicable law. Indeed, ALDOT admits that it

made no analysis of this negative economic impact and does not plan to do so. Millions of

dollars in development and tax money are at stake here. These critically importantly analyses and

impacts must be given a “hard look” as is required in an Environmental Impact Statement.

ALDOT failed to do this and failed to give a reason why it did to the City or even acknowledge

the Mayor’s letter on this very subject.1 This is a direct and flagrant violation of the NEPA and

1 Letter from William A. Bell Sr., Mayor, City of Birmingham to John Cooper, Director, ALDOT, dated February

21, 2014. Exhibit 2.





3

requires the preparation by Defendants of an Environmental Impact Statement (“EIS”).2 This

alone justifies the relief sought in this Complaint.

5. Defendants prepared an Environmental Assessment (“EA”)3 for the Project, which was approved

March 24, 2015, by the Federal Highway Administration (“FHWA”). NEPA regulations require

the analysis of different categories of impacts in an EA, including direct, indirect, and

cumulative impacts. Instead of complying with the Act, ALDOT completed a facially

insufficient 12-page “check the box” job. The “analysis” literally consists of yes/no check

boxes, devoid of actual study or analysis skimming over required direct impacts. In fact, indirect

and cumulative impacts were never analyzed at all. There is no evidence that ALDOT gave any

of the negative impacts which have been raised the full “hard look” as required by NEPA

regulations. Defendants’ activities are contrary to law, arbitrary and capricious, and constitute an

abuse of discretion under § 706(2) (A) of the Administrative Procedure Act. 5 U.S.C. §§ 551-706

(2002). Plaintiff s request that this court grant expedited declaratory relief to ensure full

compliance with the requirements of NEPA before the Project proceeds in any significant

respects. (Plaintiffs agree the highway should be repaired and patched and ALDOT has sufficient

authority to do this at any time and will not be impeded by conducting an EIS.)

6. Downtown Birmingham is leading the revitalization of the entire metropolitan area, with the

strongest growth and greatest level of public and private investment in fifty years. The existing I-

20/59 viaduct passing through downtown has long been perceived as a barrier between the CBD

2 40 CFR Section 1508.8(b)

3 An EA must include brief discussions of i) the need for the proposal, ii) of alternatives for any proposal which

involves unresolved conflicts concerning alternative uses of available resources ; iii) the environmental and related

social, economic, aesthetic, historic, cultural and health impacts of the proposed action and alternatives, and iv) a

listing of agencies and persons consulted . No public comment period or hearing is required, but agencies “shall

involve environmental agencies, applicants, and the public, to the extent practicable, in preparing

assessments . . . “40 C.F.R. § 1501.4(b). (Emphasis added.)





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to the south of the viaduct and the convention center district to the north, constraining

connections and development.4

7. The 2004 City Center Plan5 for downtown revitalization proposed sinking the route. (ALDOT

does not mention or analyze this study either.) Realignment proposals have also been discussed.

Citizen participants in the recent comprehensive planning process clearly expressed their view

that the viaduct has a negative effect on downtown development and revitalization of adjacent

neighborhoods.

8. There is no question that the I-20/59 viaduct needs immediate attention and repairs to the deck.

Both the City and ALDOT recognize that the facility is reaching the end of its design life, has

many vintage characteristics that do not represent best design practices and safety considerations,

and has undesirable impacts on adjacent areas. However, ALDOT could make interim repairs to

keep the existing bridges functioning long enough for a better long-term solution to be reached

with full public involvement.

9. These conditions are similar to the challenges faced by a number of communities around the

country, as described in the case studies, from the Providence I-Way to I-84 in Hartford and the

I-10 Claiborne Expressway in New Orleans. The case studies demonstrate that urban highway

projects require a level of collaboration and stakeholder participation that takes into account the

economic development, community development, and urban design goals in complex city

4 The I-20/59 Viaduct in Downtown Birmingham, Alabama: Economic Development and Transportation Review,

Prepared by Goody Clancy, in association with Kittelson & Associates, Inc., W-ZHA Stantec For REV

Birmingham, City of Birmingham, April 2014, Pp. 425 Birmingham's City Center Master Plan is a document intended to guide the development of the City Center. The

current plan was created in 2004 by Urban Design Associates (UDA) of Pittsburgh, Pennsylvania. It was

commissioned by the Birmingham Department of Planning, Engineering & Permits in September 2003 as an update

of the previous 1991 City Center Master Plan.

http://www.informationbirmingham.com/planning/masterplanupdate.pdf (Last visited October 1, 2015)


http://www.bhamwiki.com/w/2004



http://www.informationbirmingham.com/planning/masterplanupdate.pdf







5

environments as well as safety, traffic flow, and regional access transportation goals. No such

collaboration occurred in Birmingham.6

10. While ALDOT acknowledges that it did not include any economic development analysis in

preparing this Project, the Plaintiffs and many residents of the City are concerned about

supporting and enhancing the public and private investments that have made downtown the most

dynamic and growing area in the City.

11. The case studies show that the combination of downtown revitalization and deteriorating

infrastructure provides a propitious time for establishing a collaborative planning process, with a

strong public engagement component, to seek a solution that carefully considers transportation,

economic development, community development and urban design goals.

12. Reconstruction of the viaduct is only one of several possible solutions for the I-20/59 route

through Birmingham, none of which have been fully vetted for both transportation feasibility and

community benefit and impact. ALDOT’s proposed “improvement” Project makes that decision

unilaterally, without fully engaging the City, the City’s studies and plans, and the community,

about the best long-term solution. ALDOT received plenty of productive input; it just did

nothing with it.

13. Moreover, by going beyond a straightforward repair and maintenance project, ALDOT has

created a broader Project that should require more environmental review than is contemplated

under an emergency environmental assessment. According to the Birmingham Business Journal,

ALDOT itself has recognized that this is not simply an emergency project: “The project quickly

snowballed, doubling in cost, said ALDOT spokesman Brian Davis. Instead of deck repairs, the

goal became fixing the malfunction in ‘malfunction junction’ to ease congestion. ‘This is a

6 Supra. Letter from William A. Bell, dated February 21, 2014. Exhibit 2





6

project of regional significance,’ he said by way of explaining why ALDOT expanded the scope

of the project.”7

14. City of Birmingham Mayor William Bell wrote ALDOT in early 2014 asking that the City be a

“full partner” in the administrative process and specifically asked to be a cooperating agency in

the context of the NEPA process.8 The Mayor never received a reply; and worse, the City of

Birmingham was not asked to be a cooperating agency. Both the failure to communicate with

the City and to embrace Birmingham as a cooperating agency is contrary to Council on

Environmental Quality (“CEQ”) regulations and guidance.9

15.

Indeed, CEQ requires agencies to report to it on a regular basis as to whether and why any

requests from a federal, state or local government agency to be a cooperating agency was denied .

CEQ required that FHWA report to it on this cooperating. In the FHWA FY 2014 Report “for

EAs in FY 2014, FHWA noted that cooperating agency participation was initiated in all cases;

however, their records did not indicate why agencies declined or otherwise did not participate as

cooperating agencies.” (Emphasis added.) So it appears that FHWA initiated cooperation agency

participation from Birmingham since it said it did it in all cases. (Emphasis added.) However

there is no evidence at FHWA or the City of Birmingham to confirm that whatsoever. Whatever

the reason for this glaring error in failing to report the City of Birmingham’s request and to

account for its silent denial, the fact remains that the principal government entity affected by this

7 “Bridge of no return: The plan for Interstate 20/59,” Birmingham Business Journal , July 26, 2013. (Online at

www.bizjournals.

com/birmingham)8 Letter from William A. Bell, Sr., Mayor, City of Birmingham to John Cooper, Director, ALDOT, dated February

21, 2014. Exhibit 2.9 40 C.F.R. § 1506.2; “Cooperating Agencies in Implementing the Procedural Requirements of the National

Environmental Policy Act, http://energy.gov/sites/prod/files/nepapub/nepa_documents/RedDont/G-CEQ-

CoopAgenciesImplem.pdf ; “Final Guidance on Improving the Process for Efficient and Timely Environmental

Reviews Under the National Environmental Policy Act”, http://energy.gov/nepa/downloads/final-guidance-

improving-process-preparing-efficient-and-timely-environmental-reviews ; OMB and CEQ Joint Memorandum on

Environmental Collaboration and Conflict Resolution,

http://energy.gov/sites/prod/files/OMB_CEQ_Env_Collab_Conflict_Resolution_20120907-2012.pdf.


http://localhost/var/www/apps/conversion/tmp/scratch_3/energy.gov/sites/prod/files/nepapub/nepa_documents/RedDont/G-CEQ-CoopAgenciesImplem.pdf




http://energy.gov/nepa/downloads/final-guidance-improving-process-preparing-efficient-and-timely-environmental-reviews











7

Project was denied a rightful and meaningful role in the process that could have substantially

enhanced the analysis and decision making.

16. Implementation of the proposed Project without a collaborative planning process that objectively

evaluates multiple alternatives will foreclose consideration and analysis of the best solutions to

the I-20/59 issues for another generation and blunt the revitalization prospects of downtown and

adjacent neighborhoods.

JURISDICTION AND VENUE

17. This action arises under NEPA, 42 U.S.C. § 4321 et seq. This Court has jurisdiction pursuant to

28 U.S.C. § 1331, and may issue declaratory and further relief pursuant to 28 U.S.C. §§ 2201 and

2202. Plaintiff is entitled to bring this action pursuant to the Administrative Procedure Act, 5

U.S.C. §§ 701-06.

18. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(e).

PARTIES AND STANDING

Plaintiffs

1.

Johnathan Austin is a natural person who resides in close proximity to this subject Project. His

personal, financial and employment interests will be negatively affected by ALDOT’s proposal.

Mr. Austin is President of the Birmingham City Council but sues in his personal capacity.

2. Randall Woodfin is a natural person who resides in close proximity to this subject project. His

personal, financial and employment interests will be negatively affected by ALDOT’s proposal.

Mr. Woodfin is President of the Birmingham Board of Education but sues in his personal

capacity.

3. James Clark is a natural person who resides and owns both residential and rental property less

than a mile from this Project. He has attended all the ALDOT Public Meetings and submitted





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letters, videos, reports and comments. His property will be negatively affected by ALDOT’s

proposal. He is employed at University of Alabama at Birmingham.

4. Darrell O’Quinn is a natural person who resides in close proximity to this subject property. He is

President of the Crestwood Neighborhood Association and President of the Birmingham Citizen

Advisory Board. His property and interests in the betterment of the community will be

negatively affected by ALDOT’s proposal. He is the executive director of Move I 20/59 Inc. a

non-profit organization. He sues in his personal capacity.

5. Aime Evans is a natural person who resides in close proximity to this subject property. Her

property and interests in the betterment of the community will be negatively affected by

ALDOT’s proposal.

6. Teresa Carol is a natural person who resides in close proximity to this subject property. Her


ALDOT’s proposal.

7. Merriam McLendon is a natural person who resides in close proximity to this subject property.

Her property and interests in the betterment of the community will be negatively affected by

ALDOT’s proposal.

8. Shirley Ellis is a natural person who resides in close proximity to this subject property. Her


ALDOT’s proposal.

Defendants

9. Defendant ALDOT is an agency of the State of Alabama and is chiefly involved in road

building. ALDOT is responsible for fully complying with NEPA before proceeding with

projects which involve major federal action. ALDOT is also the agency with the primary





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responsibility for preparing the inadequate Environmental Assessment challenged in this action

and for failing to prepare an EIS although such action was clearly warranted.

10. John R. Cooper is the Director of ALDOT. Mr. Cooper had the final authority for the State's

preparation of the inadequate Environmental Assessment challenged in this action and for the

State's decision to proceed with the challenged Project despite this inadequate analysis. Mr.

Cooper is sued in his official capacity.

11. FHWA is a federal agency within the U.S. Department of Transportation. FHWA was

responsible for overseeing the preparation of the inadequate Environmental Assessment and

NEPA analyses challenged in this action and for insuring that all analyses complied with NEPA.

FHWA issued the inadequate Environmental Assessment through its office in Montgomery,

Alabama.

12. Mark Bartlett is the Division Administrator for FHWA in Alabama. Mr. Bartlett had the final

authority for FHWA's preparation and approval of the inadequate Environmental Assessment

challenged in this action. Mr. Bartlett is sued in his official capacity.

LEGAL BACKGROUND

(A) National Environmental Policy Act (NEPA)

13. NEPA requires agencies to prepare an Environmental Impact Statement (“EIS”) before

undertaking a major federal action that will significantly affect the quality of the human

environment. 42 U.S.C. § 4332(2) (C).

14. The EIS serves three primary functions. First, it ensures that an agency takes a hard look at the

direct, indirect and cumulative environmental impacts of a proposed project. 40 C.F.R. §

1508.25(c). Second, it guarantees that the agency considers a range of reasonable alternatives to

accomplish the underlying goals of the proposed project and considers options that may have





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fewer adverse impacts on the environment before deciding whether to undertake the project in

the form proposed. Finally, the EIS presents detailed information about a proposed project, its

impacts, and reasonable alternatives, to the public and other agencies, so that they may

participate in the decision-making process.

15. Agencies frequently perform an Environmental Assessment (“EA”) as a preliminary survey and

to determine if a full blown EIS is needed. 42 U.S.C. § 4332(2) (E) (2006) and 40 C.F.R. §

1508.9(b) (1970) require agencies to consider alternatives in preparing an EA. The requirement

for alternatives in an EA is not as robust as the requirement in an EIS.10

Nevertheless, the very

purpose of NEPA is a requirement to consider more alternatives than “yes or no.”

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16. Agencies must seriously consider reasonable alternatives even for an EA, and alternatives must

not be “dismissed in a conclusory and perfunctory manner that do[es] (sic) not support a

conclusion that it was unreasonable to consider them as viable alternatives in the EA.”12

17. The purpose and need section of an EA mandates consideration of alternatives and must provide

comprehensive and specific justification for implementing the action.13

It must be specific

enough that the alternatives developed are reasonably related to the actual purpose, but not so

10 Save Our Cumberland Mountains v. Kempthorne, 453 F.3d 334, 346 (6th Cir. 2006) (though the court held the

alternatives were deficient, the EA was not deemed insufficient because plaintiffs failed to show even one

alternative defendants should have considered); see also Dep’t of Transp. v. Public Citizen, 541 U.S. 752, 765

(2005) (plaintiffs could not challenge the sufficiency of alternatives in the EA where they raised no particular

alternatives that should have been considered). 11 Id.12 Davis v. Mineta, 302 F.3d 1104, 1121 –1122 (10th Cir. 2002) (considering only the “no build” and preferred

alternatives was arbitrary and capricious). 13 NEPA and Transportation Decisionmaking: The Importance of Purpose and Need in Environmental Documents,

FED. HIGHWAY ADMIN. (Sept. 18, 1990), available at https://www.environment.fhwa.dot.gov/projdev/tdmneed.asp

[hereinafter Importance of Purpose and Need ]; see also City of New York v. U.S. Dep’t of Transp. 715 F.2d 732,

742 (2d. 1983) (“The scope of alternatives to be considered is a function of how narrowly or broadly one views the

objective of an agency’s proposed action.”) (The agency’s failur e to consider a type of alternative in its EA was not

arbitrary or capricious.).





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specific to be unreasonably narrow.14

The agency must “consider reasonable alternatives that

meet the purpose and need of the proposed action.”15

18. To implement the requirements of NEPA, the Council on Environmental Quality (“CEQ”) has

promulgated regulations applicable to all federal agencies. See 40 C.F.R. §§ 1500-1508 (“the

CEQ regulations”). FHWA has also promulgated supplemental regulations and procedures for

complying with NEPA. See 23 C.F.R. § 771.101.

19. NEPA requires that every EIS must be prepared with objective good faith and must fully and

fairly discuss, among other things, the adverse environmental effects of the proposed action and

the alternatives to the proposed action which may avoid or minimize these adverse effects. 42

U.S.C. § 4332(2) (C), (E).

20. The “effects” that must be discussed in an EIS include, among other considerations, the direct

environmental impacts of the proposed action, the indirect effects of the proposed action, and the

cumulative impacts of the proposed action. 40 C.F.R. § 1502.16 (a) – (h); 40 C.F.R. § 1508.27(b)

(7).

21.

NEPA regulations define “indirect effects” as effects “which are caused by the action and are

later in time or farther removed in distance, but are still reasonably foreseeable.” 40 C.F.R. §

1508.8(b). Further, indirect effects may include “growth inducing effects and other effects

related to induced changes in the pattern of land use, population density or growth rate, and

related effects on air and water and other natural systems, including ecosystems.” 40 C.F.R. §

1508.8(b).

14 City of Carmel-by-the-Sea v. U.S. Dep’t of Transp., 123 F.3d 1142, 1156 (9th 1997) (stated purpose in the FEIS

included a specific level of service the action proposed was to provide and was not too narrow, even though the

DEIS had only stated the purpose was improved connectivity).15 Ctr. for Biological Diversity v. Animal and Plant Health Inspection Serv., No. 10 – 14175 – CIV, 2011 WL

4737405, at *4 (S.D. Fla. Oct. 6, 2011).





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22. The NEPA regulations define “cumulative impact” as the “impact on the environment which

results from the incremental impact of the action when added to other past, present, and

reasonably foreseeable future actions regardless of what agency or person undertakes such other

actions. Cumulative impacts can result from individually minor but collectively significant

actions taking place over a period of time.” 40 C.F.R. § 1508.7.

(B) Administrative Procedure Act

23. The APA confers a right to judicial review upon any person adversely affected by agency action.

See 5. U.S.C. § 702. The APA provides that the reviewing court “shall…hold unlawful and set

aside agency action, findings, and conclusions found to be [] arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.” Id., § 706(2) (A).

24. Defendants’ actions in approving the March 24, 2015 E A, and/or in engaging in site preparation

for the Project, right-of-way acquisition, and other activities in anticipation of construction,

constitute “agency actions” subject to judicial review under the APA.

FACTS GIVING RISE TO LEGAL CLAIMS

Project History

25. The Alabama Department of Transportation Project IM-I059 (367) I 59-20 Corridor

Improvements, Jefferson County, Alabama, Environmental Assessment (“Project”) was

approved March 24, 2015, and granted a Finding of No Significant Impact by both ALDOT and

FHWA on June 2015 with no consideration whatsoever of the direct, indirect or cumulative

impacts of the Project on social and economic impacts as required by NEPA. The Project would

mushroom the highway from six to ten lanes and removes all but one exit and increase its height.





13

26. ALDOT did this despite being presented with four major studies by the City of Birmingham

outlining major negative impacts, which were submitted to ALDOT during the so called “Public

Involvement” part of the process. The studies were summarily ignored.16

27. ALDOT proposes to turn the present six lanes to a ten lane highway creating one solid elevated

bridge in the current footprint of I 20/59. This would turn an ugly elevated highway into a

virtual cave totally covering with concrete the area from the Criminal Justice Center, Art

Museum, Alabama School of Fine Arts over to the Birmingham Jefferson Civic Center, the

Sheraton Inn and the new Uptown project. ALDOT would close virtually all of the downtown I

20/59 exit/on ramps in favor of a big one out of the way on 17

th

Street permanently.

28. Among other problems, ALDOT’s plan severs connections to communities and businesses in the

vicinity of the viaduct in addition to impeding access and circulation. The plan further severs the

Birmingham Jefferson Civic Center and the Uptown Entertainment District and the Fountain

Heights neighborhood from areas to the south, exactly what numerous public comments

complained of and what ALDOT did not bother to analyze. The revised 17th

Street ramp is still

oriented to the south, meaning traffic for the BJCC must funnel through the CBD to access areas

to the north of the viaduct, significantly increasing traffic on Rev Abraham Wood Blvd. In

addition, the US 31 access becomes more critical because the existing viaduct ramps are


Prepared by Goody Clancy, in association with Kittelson & Associates, Inc., W-ZHA Stantec FOR REVBirmingham, City of Birmingham, April 2014 AND

-Concept Feasibility Review for Lowering I20-59: Birmingham, Alabama, for Operation New Birmingham,

Prepared by Parson Brinkerhoff , January y 2009 And

-Birmingham's City Center Master Plan, by Urban Design Associates (UDA) of Pittsburgh, Pennsylvania 2004. It

was commissioned by the Birmingham Department of Planning, Engineering & Permits in September 2003 as an

update of the previous 1991 City Center Master Plan.


- Birmingham Comprehensive Plan October 2, 2013, http://www.birminghamal.gov/work/birmingham-

comprehensive-plan/, http://www.birminghamal.gov/download/comprehensiveplan/CH11_SustainingDowntown.pdf




http://www.birminghamal.gov/work/birmingham-comprehensive-plan/










14

removed and some traffic will be diverted to US 31, which could would almost certainly put

heavy traffic onto 5th and 6th Avenues North.

29. Finally, with ramps removed in the viaduct area, there will be increased demand from the west

on the exit to the 31st Street North interchange. The interchange with US 31 presently serves

significant freight traffic and the interchange itself has limited capacity at the ramp terminal

intersections and the I-59/I-20 overcrossing.

30. The quality of access and circulation related to BJCC and the Uptown District would be affected

because of reduced access from the freeway network. The barrier-effect would increase between

the north and south CBD caused by severances to 15th Street, 16th Street, and 17

th

Street.

Proposed ramps to the I-65/I-20/I-59 interchange from 11th Avenue North create a new physical

barrier to the Fountain Heights neighborhood. The barrier effect from 11th

Avenue North and the

viaduct cross street severances restricts land use access between the elevated freeway and 11th

Avenue North ramps. In general, removing viaduct ramps creates greater travel distances for

CBD destinations17

31.

The I-20/59 Viaduct in Downtown Birmingham, Alabama: Economic Development and

Transportation Review, of 2014 study was done SPECIFICALLY to aid Birmingham decision

makers in evaluating this very Project with findings and observations focused on the impacts of

viaduct and proposed project on economic and community development, connectivity and urban

design, and transportation operations and safety — all within the context of City goals for

economic development, community revitalization, urban design, and transportation. This study is

not mentioned in any ALDOT NEPA document at all, let alone analyzed with the “hard look”


Prepared by Goody Clancy, in association with Kittelson & Associates, Inc., W-ZHA Stantec for REV Birmingham,

City of Birmingham, April 2014, Pg 41.





15

requirement of NEPA. This wholesale and intentional omission of any consideration or analysis

of reasonable alternatives is a direct violation of the Act and justifies the relief sought herein.

32. NEPA regulations require ALDOT and FHWA to consider the “effects” of the project. Effects

include: (a) Direct effects, which are caused by the action and occur at the same time and place.

(b) Indirect effects, which are caused by the action and are later in time or farther removed in

distance, but are still reasonably foreseeable. Indirect effects may include growth inducing

effects and other effects related to induced changes in the pattern of land use, population density

or growth rate, and related effects on air and water and other natural systems, including

ecosystems.

33. Effects and impacts as used in these regulations are synonymous. Effects includes ecological

(such as the effects on natural resources and on the components, structures, and functioning of

affected ecosystems), aesthetic, historic, cultural, economic, social, or health, whether direct,

indirect, or cumulative. Effects may also include those resulting from actions which may have

both beneficial and detrimental effects, even if on balance the agency believes that the effect will

be beneficial. 18

34. The Final EA did not analyze the indirect effects of the I-20/59 Corridor Improvements Project.

35.

The Final EA did not analyze the cumulative impacts of the I-20/59 Corridor Improvements

Project.

36. The Final EA did not analyze the data and reasonable alternatives available in the I-20/59

Viaduct in Downtown Birmingham, Alabama: Economic Development and Transportation

Review Prepared by Goody Clancy, in association with Kittelson & Associates, Inc., W-ZHA

Stantec, For REV Birmingham, City of Birmingham, April 2014 even though it was prepared for

18 40 CFR § 1508.8 Effects.





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that specific purpose. This study is not mentioned in any ALDOT NEPA document at all, let

alone analyzed with the “hard look” requirement of NEPA.

37. The Final EA did not analyze the data and the reasonable alternatives available in the Concept

Feasibility Review for Lowering I-20/59: Birmingham, Alabama, for Operation New

Birmingham, Prepared by Parson Brinkerhoff, January 2009, and dismissed the study without

analysis. This study is not mentioned in any ALDOT NEPA document at all, let alone analyzed

with the “hard look” requirement of NEPA.

38. The Final EA did not analyze the data and the reasonable alternatives available in

Birmingham's City Center Master Plan, by Urban Design Associates (UDA) of Pittsburgh,

Pennsylvania 2004, for Birmingham Department of Planning, Engineering & Permits in

September 2003 as an update of the previous 1991 City Center Master Plan.

http://www.informationbirmingham.com/planning/masterplanupdate.pdf. This study is not

mentioned in any ALDOT NEPA document at all, let alone analyzed with the “hard look”

requirement of NEPA.

39.

The Final EA did not analyze the data and the reasonable alternatives available in - Birmingham

Comprehensive Plan October 2, 2013, which can be found at

http://www.birminghamal.gov/work/birmingham-comprehensive-plan/,

http://www.birminghamal.gov/download/comprehensiveplan/CH11_SustainingDowntown.pdf.

This study is not mentioned in any ALDOT NEPA document at all, let alone analyzed with the

“hard look” requirement of NEPA.

CLAIMS FOR RELIEF:

COUNT 1





17

NEPA Violation — Improper Approval of the EA and Finding of No Significant Impact

40. Plaintiffs incorporate all of the factual averments set forth above herein, as if set forth in full, in

support of the Count.

41. NEPA requires all environmental studies to take a hard look at a project’s direct, indirect, and

cumulative impacts. City of Oxford v. F.A.A., 428 F.3d 1346, 1352 (11th Cir. 2005). This

requirement applies to both EISs and EAs. See Senville v. Peters, 327 F. Supp. 2d 335, 350 (D.

Vt. 2004). In this case, the March 24, 2015, EA failed to analyze the indirect and cumulative

impacts as required by federal regulations. 40 C.F.R. § 1502.16 (a) – (h); 40 C.F.R. § 1508.7; 40

CFR 1508.25.

42. In addition, the purpose of an EA is, among other things, to determine whether a final EIS is

needed for the project. Senville v. Peters, 327 F. Supp. 2d 335, 350 (D. Vt. 2004); S. Trenton

Residents Against 29 v. FHA, 176 F.3d 658, 661 (3d Cir. 1999). This EA failed to comply with

that statutory requirement as well.

43. Defendants’ knowing publication of an EA that does not examine indirect and cumulative

impacts, and their ongoing site preparation work on the Project that was subject to the flawed

EA, violates NEPA and its implementing regulations, and are arbitrary, capricious, and otherwise

not in accordance with law.

44. The Finding of No Significant Impact in this case was arbitrary and capricious and also in

violation of NEPA.

COUNT 2

NEPA Violation — Failure To Perform EIS





18

45. Plaintiffs incorporate all of the factual averments set forth above herein, as if set forth in full, in

support of the Count

46. NEPA requires agencies to prepare an Environmental Impact Statement (“EIS”) before

undertaking a major federal action that will significantly affect the quality of the human

environment. 42 U.S.C. § 4332(2) (C).

47. The EIS serves three primary functions. First, it ensures that an agency takes a hard look at the

direct, indirect and cumulative environmental impacts of a proposed project. 40 C.F.R. §

1508.25(c). Second, it guarantees that the agency considers a range of reasonable alternatives to

accomplish the underlying goals of the proposed project and considers options that may have

fewer adverse impacts on the environment before deciding whether to undertake the project19

in

the form proposed. Finally, the EIS presents detailed information about a proposed project, its

impacts, and reasonable alternatives, to the public and other agencies, so that they may

participate in the decision-making process.

48. The ALDOT Project in question fails on all three counts.20

The Alabama Department of

Transportation Project IM-I059 (367) I 59-20 Corridor Improvements, Jefferson County,

Alabama, Environmental Assessment was approved March 24, 2015 and granted a Finding of No

Significant Impact by both ALDOT and FHWA June 2015 with no consideration whatsoever of

the direct, indirect or cumulative impacts of the project on as required by NEPA regulation.

ALDOT did this despite the existence of four major studies by the City of Birmingham outlining

20 Alabama Department of Transportation (“ALDOT”) Project IM-I059 (367) I 59-20 Corridor Improvements,

Jefferson County, Alabama





19

those very impacts which were submitted to ALDOT during the so called “Public Involvement”

part of the process, and summarily ignored.21

49. Downtown Birmingham is leading the revitalization of the entire metropolitan area, with the

strongest growth and greatest level of public and private investment in fifty years. ALDOT’s

plan severs connections to communities and businesses in the vicinity of the viaduct in addition

to impeding access and circulation. The plan further severs the Birmingham Jefferson Civic

Center and the Uptown Entertainment District and the Fountain Heights neighborhood from

areas to the south, exactly what numerous public comments complained of and what ALDOT did

not bother to analyze. The revised 17

th

Street ramp is still oriented to the south, meaning traffic

for the BJCC must funnel through the CBD to access areas to the north of the viaduct,

significantly increasing traffic on Rev Abraham Wood Blvd. In addition, the US 31 access

becomes more critical because the existing viaduct ramps are removed and some traffic will be

diverted to US 31, which could would almost certainly put heavy traffic onto 5th and 6th

Avenues North. In short, this Project will destroy one of the brightest spots in Birmingham’s

future.

50. NEPA requires all environmental studies to take a hard look at a project’s direct, indirect, and

cumulative impacts. City of Oxford v. F.A.A., 428 F.3d 1346, 1352 (11th Cir. 2005). This


Prepared by Goody Clancy, in association with Kittelson & Associates, Inc., W-ZHA Stantec FOR REV

Birmingham, City of Birmingham, April 2014 AND-Concept Feasibility Review for Lowering I20-59: Birmingham, Alabama, for Operation New Birmingham,

Prepared by Parson Brinkerhoff , January y 2009 And

-Birmingham's City Center Master Plan, by Urban Design Associates (UDA) of Pittsburgh, Pennsylvania 2004. It

was commissioned by the Birmingham Department of Planning, Engineering & Permits in September 2003 as an

update of the previous 1991 City Center Master Plan.


- Birmingham Comprehensive Plan October 2, 2013, http://www.birminghamal.gov/work/birmingham-

comprehensive-plan/, http://www.birminghamal.gov/download/comprehensiveplan/CH11_SustainingDowntown.pdf














20

requirement applies to both EISs and EAs See Senville v. Peters, 327 F. Supp. 2d 335, 350 (D.

Vt. 2004).

51. Defendants’ knowing failure to prepare, collaborate and publish an EIS that gives a “hard look”

and examines direct, indirect and cumulative impacts, reasonable alternatives like those

contained in the cited City studies, and their ongoing site preparation work on the Project, for

which an EIS should have been prepared and wasn’t, violates NEPA and its implementing

regulations, and was arbitrary, capricious, and otherwise not in accordance with law.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs respectfully requests that this Court:

48. Conduct expedited proceedings in this matter, as provided for in Rule 57, Federal Rules of Civil

Procedure, and thereafter enter a declaratory judgment that the Defendants have violated the

National Environmental Policy Act by failing to prepare an Environmental Impact Statement for

the Alabama Department of Transportation Project IM-I059 (367) I 59-20 Corridor

Improvements, Jefferson County, Alabama that meets the standards required by NEPA and its

implementing regulations;



National Environmental Policy Act by preparing a deficient Environmental Assessment Re-

evaluation for Alabama Department of Transportation Project IM-I059 (367) I-20/59 Corridor

Improvements, Jefferson County, Alabama;



National Environmental Policy Act by improperly ignoring numerous, viable and well know





21

alternatives concerning the Project and ordering ALDOT/FHWA to give a “hard look” to all

reasonable alternatives especially those based on the publicly available City of Birmingham

studies listed herein which were previously submitted or know to ALDOT;

51. Vacate the March 24, 2015, approval of the ALDOT Environmental Assessment for this Project

and vacate approval of the June 2015 Finding of No Significant Impact for this Project;

52. Enter appropriate permanent injunctive relief to ensure that Defendants comply with the National

Environmental Policy Act, and specifically to ensure that Defendants take no further actions

toward proceeding with the Alabama Department of Transportation Project IM-I059 (367) I 59-

20 Corridor Improvements, Jefferson County, Alabama until they have prepared an EIS in

compliance with NEPA;

53. Award Plaintiffs the costs of this action, including its reasonable attorneys’ fees; and

54. Grant such other relief as the Court deems just and proper.

Respectfully submitted this the 13th

day of October, 2015,

_/s/___ Byron Bart Slawson__Byron Bart Slawson

Slawson, Esq., P.C.

The Sidewinder Building8933 Glendale Drive

Birmingham, AL 35206

(205) 836-0000

(866) 608-6472 fax [email protected]

ASB 9234-N71B

Attorney for the Plaintiffs





22

CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing

“Complaint for Declaratory and Injunctive Relief” with theClerk of Court using the CM/ECF system. I also herebycertify that copies of the foregoing were mailed this day via

Certified Mail, Return Receipt Requested to the following parties: Alabama Department of Transportation

1409 Coliseum BoulevardMontgomery, AL 36110

John R. Cooper

Transportation DirectorAlabama Department of Transportation1409 Coliseum Boulevard

Montgomery, AL 36110

The Honorable Luther StrangeAttorney General

Office of the Attorney General

501 Washington AvenueMontgomery, AL 36130

Federal Highway Administration1200 New Jersey Avenue, SE

Washington, DC 20590

Mark BartlettDivision AdministratorAlabama Division

Federal Highway Administration9500 Wynlakes Place

Montgomery, AL 36117

Joyce VanceU.S. AttorneyU.S. Attorney’s Office for the Northern D

of Alabama1801 4th Avenue North

Birmingham, AL 35203

The Honorable Loretta LynchAttorney General of the United StatesU.S. Department of Justice

950 Pennsylvania Avenue, NW

Washington, DC 20530-0001
