Thirteen Indiana citizens and two citizen groups have threated to sue state and federal officials over the proposed Interstate 69 extension unless they cease violating federal laws, including the Clean Air and Endangered Species Acts.
Bloomington attorneys Rudy Savich and Mick Harrison filed a Notice of Intent to Sue on July 5 against Gov. Mitch Daniels, Indiana Department of Transportation Commissioner Michael B. Cline, Federal Highway Division Administrator Robert F. Tally and four other federal officials.
"The citizens of this state deserve but do not have adequate assurances that the I-69 extension can be completed with available funds and that it can be built so as not to cause serious environmental harm to humans and wildlife." - Mary Ann Williams, CARR
Plaintiffs include William A. Boyd, Janice Ann Boyd, Thomas Jochim, Kenda Jochim, Jerry Jochim, Andy Knott, Michael Knott, Ruth Ann Flynn, Thomas Tokarski, Sandra Tokarski, Darrell Breeden, Citizens for Appropriate Rural Roads, Inc. ("CARR") and the I-69 Accountability Project (IAP).
The 43-page notice document concluded:
"Unfortunately, endangered species are becoming extinct on a daily basis worldwide as a result of timber cutting, fires, toxic pollution, and development, reducing biodiversity forever and eliminating forever a portion of our legacy to our children and grandchildren. Global climate change, caused by greenhouse gases emitted from industrial activities including internal combustion engines, is exacerbating this catastrophe. Air pollution continues to kill tens of thousands of people each year and many more, including tens of thousands of children suffer from asthma and other air pollution related respiratory disorders. It is the job of the federal and state governments to public health, protect public lands, wildlife and resources at this critical time in history. CARR and the other Plaintiffs listed below intend to hold Defendants accountable and not allow them to violate our environmental protection laws with impunity.
"The Plaintiffs may be contacted via the undersigned attorneys at the addresses and phone numbers listed below. If you are interested in discussing resolution of this matter including the immediate cessation of all actions of the Defendants related to construction and design of1-69 and related property acquisition activities, please contact attorneys Mick Harrison and Rudy Savich at the addresses and telephone numbers listed below."
An overview of the notice from the plaintiffs follows.
I-69 Violates Federal Laws.
"Landowners affected by I-69 along with Citizens for Appropriate Rural Road, Inc (CARR) have served notice to State and federal officials that they intend to file suit if State and federal agencies do not remedy violations of the Clean Air Act (CAA), Endangered Species Act (ESA), National Environmental Policy Act (NEPA) and Transportation Act related to the environmental impacts, design, funding, and construction of the (new terrain) I-69 interstate highway extension," stated attorney Mick Harrison.
"Pending compliance with the CAA, ESA, NEPA and Transportation Act, Plaintiffs ask that all actions related to I-69 construction, final design, and property acquisition be halted," added attorney Rudy Savich.
Violations of law asserted in the Notice include the following:
Federal Clean Air Act
Compliance with the CAA air quality standards is required to ensure protection of public health. The construction of I-69 would increase air pollution in areas already suffering from unsafe levels and put some areas of Indiana into non-compliance with the CAA. Some counties and cities have already found that they will not be able to demonstrate compliance with the State's CAA Implementation Plan (SIP) using the most recent motor vehicle data, and other counties and cities including some on the I-69 route are expected to have the same problem. INDOT and FWHA are not allowed to approve I-69 or other transportation projects that would increase air pollution in these areas.
"CARR and the other Plaintiffs listed below intend to hold Defendants accountable and not allow them to violate our environmental protection laws with impunity." - Notice of Intent to SueFederal Endangered Species Act
The Indiana Bat is an endangered species that is now under multiple threats including massive die-offs from the spreading fungal disease identified as White Nose Syndrome. This disease is now in Indiana. The construction of I-69 will pose additional hazards to this already seriously imperiled bat. I-69 work has and will continue to illegally harm ("take") Indiana Bats and could, combined with the White Nose Syndrome, result in extinction of the species. Bats are essential for insect control and their extinction could result in severe economic impacts on farmers and also adversely impacts human health.
The Transportation Act
Federal law requires, prior to approval of a highway project for inclusion in a short term transportation plan, that full funding from identified sources can reasonably be anticipated to be available within the time period contemplated for completion. Although INDOT asserts that a traditional source of funding (gas taxes) is available to cover the costs of Section 4 and for the completion of Sections 1-3, INDOT has not demonstrated that the amount of gas taxes available will be sufficient, and INDOT has not disclosed to the public the other community and regional projects that will not be able to be completed as a result of using substantial portions of the limited gas tax funds for I-69. Further, INDOT's attempt to amend the State plan to include traditional funding for I-69 illegally circumvented public participation requirements.
Section 4(f) of The Transportation Act
Federal law protects historically and archeologically significant sites. INDOT and FWHA have an obligation to avoid harming or destroying such sites, as well as wildlife refuges, if there is a feasible and prudent alternative. I-69 as currently routed will destroy or harm historically and archeologically significant sites and will harm the Patoka National Wildlife Refuge. A feasible and prudent alternative exists here in the form of the no new terrain route, using existing US-41and I-70, which has been discussed by CARR.
The National Environmental Policy Act
Federal law requires FHWA and INDOT to prepare an Environmental Impact Statement (EIS) to objectively and thoroughly evaluate the adverse impacts from and alternatives to major projects such as I-69. A Supplemental EIS (SEIS) is required when significant new information becomes available. INDOT and FHWA failed to prepare an objective, thorough, and good faith EIS and failed to timely prepare an SEIS as required by NEPA. The agencies concealed and ignored significant available information regarding adverse impacts on Karst features, failed to disclose and analyze significant new information regarding increased air pollution, failed to disclose and analyze the impacts on communities whose transportation projects will not be funded or adequately maintained because of funding diverted for I-69, failed to prepare an SEIS to assess the adverse impacts of I-69 on the endangered species the Indiana Bat in light of the White Nose Syndrome, and failed to act in good faith to identify, evaluate, and protect historically and archeologically significant sites.
The complete Notice of Intent can be found atI-69 Whistleblower.
This legal challenge follows the Bloomington/Monroe County MPO's decision to exclude a portion of I-69 from its short term transportation plan (the Transportation Improvement Program or TIP), and public disclosures indicating that the State may lack sufficient funds to build large sections of the I-69 project from Evansville to Indianapolis.
"Due to the violations of federal laws and many significant unanswered questions regarding its impacts, the project must be halted," stated Mary Ann Williams, a CARR member. Ms. Williams added: "The citizens of this state deserve but do not have adequate assurances that the I-69 extension can be completed with available funds and that it can be built so as not to cause serious environmental harm to humans and wildlife."
"Pending compliance with the CAA, ESA, NEPA and Transportation Act, Plaintiffs ask that all actions related to I-69 construction, final design, and property acquisition be halted." - Rudy Savich, attorneyMany Questions About The Impacts Of I-69 Have Not Been Addressed.
Plaintiffs in their Notice of Intent to Sue assert that State and federal agencies have not adequately addressed key questions and concerns regarding the impacts of the I-69 extension on air and water quality, Karst, historic and archeological resources, and endangered species. "With traditional transportation revenue sources shrinking, funds to build I-69 will have to come from cutting other projects around the state. INDOT's so-called 'Innovative Financing' that was supposed to pay for parts of I-69 is projected to be available, if it actually materializes, only by 2016." Stated Dr. Christine Glaser of GreenFire Consulting. GreenFire is assisting attorneys Savich and Harrison in preparing the federal lawsuit for the Plaintiffs. "If the State runs out of money to complete I-69, the Governor will be in the untenable position of either demanding that taxpayers provide a massive boondoggle bail out or abandoning the project with an accompanying massive waste of taxpayer dollars," added Tom Tokarski.
Coercion and Extortion Are Unacceptable In a Democracy.
"The State and federal agencies' attempts to force I-69 on citizens and officially appointed local transportation committees is unethical. These tactics thwart the democratic process," stated Sandra Tokarski of CARR. "INDOT and the Federal Highway Administration must follow proper procedures and regulations. Just because Governor Daniels told them to 'throw out the rule book' when it comes to building I-69 does not give them the right to break the law." Stated Tom Tokarski of CARR.
"The impacts of this project on citizens will be widespread and severe. The State has gone too far. No one is above the law," stated Bill Boyd, a landowner in Section 4, a section that extends from US-231 in Greene County to SR-37 south of Bloomington in Monroe County. "In light of the latest scientific and financial information, we need to reconsider not only whether the State can afford the I-69 extension, but also whether the severe impacts on our farms, our environment and our rural communities are worth the minimal benefits expected." Mr. Boyd added. "In light of the serious unanswered questions, numerous violations of federal law, and new information on the harmful impacts of the I-69 highway, the Plaintiffs call for an immediate halt to the project." Attorney Harrison concluded. " I-69 should be stopped before more harm is done and more taxpayer money is wasted," echoed Attorney Savich.
For more information
Citizens for Appropriate Rural Roads, Thomas and Sandra Tokarski, 812-825-9555
Bill Boyd, Landowner, Section 4, 317-538-7894
Attorneys: Rudy Savich, 812-336-7293, and Mick Harrison, 812-361-6220