Indirect Effects: The Real World (Practical Analysis through Tactical Methods)

1. Indirect Effects: The Real World (Practical Analysis through Tactical Methods) Jack F. Gilbert Federal Highway Administration Office of the Chief Counsel Washington, D.C. – June 2008

2. Why are Indirect & Cumulative Impacts Such an Issue ? • Numerous statutes require consideration of indirect (secondary) and cumulative impacts • Differences in the requirements • Complicated and complex issues – e.g., Sprawl • Potential source of disagreement and delay in the environmental review process • Thinking, understanding and interests vary • Lawsuits – Administrative Record

3. Indirect Effects 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. 40 CFR 1508.8

4. Indirect Effects Project Reasonably Foreseeable Future Actions Indirect Effect Effect Caused by the action and are later in time or farther removed in distance, but are reasonably foreseeable

5. Indirect (secondary) effects • Caused by the action • Later in time or removed in distance • Reasonably foreseeable (subject of much debate) • Effects related to induced changes in the pattern of land use, population density or growth rate (induced growth) • Related effects on air, water and other natural systems

6. Primary Issue - Induced Growth • Changes in land use intensity caused by an action or project. • For transportation projects, induced growth is attributed to changes in accessibility due to the project, which influences where development occurs.

7. Other Indirect Effects Issues • EJ • Air • Water • ESA • Others

8. Case Law – No. 1 Gloucester County Concerned Citizens v. Goldschmidt 533 F. Supp. 222 (N.J.D 1982) Plaintiffs challenged lack of consideration of secondary effects. Plaintiffs lost because they did not demonstrate that secondary impacts were significant.

9. Case Law – No. 2 City of Davis v. Coleman 521 F.2d 661 (9th Cir. 1975) Plaintiffs challenged EA/FONSI for lack of consideration of commercial or industrial development growth resulting from the construction of an interstate interchange. Court found the growth in area was reasonably foreseeable and indeed probable – Plaintiffs won.

10. Case Law – No. 3 Coalition for Canyon Preservation v. Bowers 632 F.2d 774 (9th Cir. 1980) Involved a 10.8-mile widening project in rural communities. EIS admitted there would be project-induced growth but did not evaluate. Court found in favor of plaintiffs due to failure to evaluate foreseeable development.

11. Current Cases or Projects • AGUA v. FHWA (WD Tex) • SH-130 • Grand Parkway • PPP – CDA – Toll Systems

12. Ten Practical or Tactical Suggestions • Start with a Clear Understanding of the Terms • Use a Systematic Approach • Develop a Top Quality Baseline • Define the Geographical Area • Past, Present and Reasonably Foreseeable

13. Top Ten (cont.) • Utilize Maps, Diagrams and Photos • GIS • Early Coordination • Use the Planning Process • Document the Process and Findings

15. Conclusion • Questions • Comments • Thank You