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

2015 Oct-13 PM 03:36


U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT


FOR THE NORTHERN DISTRICT OF ALABAMA
JOHNATHAN AUSTIN, RANDALL
)
WOODFIN, JAMES CLARK, DARRELL )
OQUINN, AMIE EVANS, TERESA
)
CAROL, MERRIAM MCLENDON,
)
SHIRLEY ELLIS,
)
)
Plaintiffs,
)
)
)
NO. -CVv.
)
)
ALABAMA DEPARTMENT OF
)
TRANSPORTATION; JOHN R.
)
COOPER, DIRECTOR, ALDOT;
)
FEDERAL HIGHWAY
)
ADMINISTRATION; and MARK
)
BARTLETT, DIVISION
)
ADMINISTRATOR, FHWA,
)
Defendants.

COMPLAINT FOR DECLARATORY RELIEF


1.

Plaintiffs Johnathan Austin, Randall Woodfin, James Clark, Darrell OQuinn, 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.
Plaintiffs 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

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

along I-59/20 and to improve the traffic operations and access through the City of Birminghams
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 Birminghams 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 Mayors letter on this very subject.1 This is a direct and flagrant violation of the NEPA and

Letter from William A. Bell Sr., Mayor, City of Birmingham to John Cooper, Director, ALDOT, dated February
21, 2014. Exhibit 2.

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

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


alone justifies the relief sought in this Complaint.
Defendants prepared an Environmental Assessment (EA)3 for the Project, which was approved

5.

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 I20/59 viaduct passing through downtown has long been perceived as a barrier between the CBD

40 CFR Section 1508.8(b)


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.)
3

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

to the south of the viaduct and the convention center district to the north, constraining
connections and development. 4
The 2004 City Center Plan5 for downtown revitalization proposed sinking the route. (ALDOT

7.

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

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. 42
5
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)

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

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. ALDOTs proposed improvement Project makes that decision
unilaterally, without fully engaging the City, the Citys 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

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

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

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 Birminghams 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-CEQCoopAgenciesImplem.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-guidanceimproving-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.

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

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

letters, videos, reports and comments. His property will be negatively affected by ALDOTs
proposal. He is employed at University of Alabama at Birmingham.
4.

Darrell OQuinn 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 ALDOTs 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
ALDOTs proposal.

6.

Teresa Carol 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
ALDOTs 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
ALDOTs proposal.

8.

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

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

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

15.

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.11
Agencies must seriously consider reasonable alternatives even for an EA, and alternatives must

16.

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

17.

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 Dept 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, 11211122 (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. Dept 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 agencys proposed action.) (The agencys failure to consider a type of alternative in its EA was not
arbitrary or capricious.).

10

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

specific to be unreasonably narrow.14 The agency must consider reasonable alternatives that
meet the purpose and need of the proposed action.15
To implement the requirements of NEPA, the Council on Environmental Quality (CEQ) has

18.

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

20.

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).
NEPA regulations define indirect effects as effects which are caused by the action and are

21.

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. Dept 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. 1014175CIV, 2011 WL
4737405, at *4 (S.D. Fla. Oct. 6, 2011).

11

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

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 shallhold 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.

12

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

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 17th Street permanently.
Among other problems, ALDOTs plan severs connections to communities and businesses in the

28.

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

16

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 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.
http://www.informationbirmingham.com/planning/masterplanupdate.pdf
- Birmingham Comprehensive Plan October 2, 2013, http://www.birminghamal.gov/work/birminghamcomprehensive-plan/, http://www.birminghamal.gov/download/comprehensiveplan/CH11_SustainingDowntown.pdf

13

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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 safetyall 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

17

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, Pg 41.

14

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

32.

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.

15

Case 2:15-cv-01777-JEO Document 1 Filed 10/13/15 Page 16 of 22


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

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

16

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

NEPA ViolationImproper 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 projects 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 ViolationFailure To Perform EIS

17

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

45.

Plaintiffs incorporate all of the factual averments set forth above herein, as if set forth in full, in
support of the Count
NEPA requires agencies to prepare an Environmental Impact Statement (EIS) before

46.

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

48.

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

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

18

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

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. ALDOTs
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 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 Birminghams
future.
NEPA requires all environmental studies to take a hard look at a projects direct, indirect, and

50.

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

21

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 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.
http://www.informationbirmingham.com/planning/masterplanupdate.pdf
- Birmingham Comprehensive Plan October 2, 2013, http://www.birminghamal.gov/work/birminghamcomprehensive-plan/, http://www.birminghamal.gov/download/comprehensiveplan/CH11_SustainingDowntown.pdf

19

Case 2:15-cv-01777-JEO Document 1 Filed 10/13/15 Page 20 of 22


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

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 wasnt, 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;

49.

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 preparing a deficient Environmental Assessment Reevaluation for Alabama Department of Transportation Project IM-I059 (367) I-20/59 Corridor
Improvements, Jefferson County, Alabama;

50.

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 improperly ignoring numerous, viable and well know
20

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

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 5920 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 Building
8933 Glendale Drive
Birmingham, AL 35206
(205) 836-0000
(866) 608-6472 fax
bartslawsonlaw@att.net
ASB 9234-N71B
Attorney for the Plaintiffs

21

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

CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing
John R. Cooper
Complaint for Declaratory and Injunctive Relief with the
Transportation Director
Clerk of Court using the CM/ECF system. I also hereby
Alabama Department of Transportation
certify that copies of the foregoing were mailed this day via
1409 Coliseum Boulevard
Certified Mail, Return Receipt Requested to the following
Montgomery, AL 36110
parties: Alabama Department of Transportation
1409 Coliseum Boulevard
Montgomery, AL 36110
The Honorable Luther Strange
Federal Highway Administration
Attorney General
1200 New Jersey Avenue, SE
Office of the Attorney General
Washington, DC 20590
501 Washington Avenue
Montgomery, AL 36130
Mark Bartlett
Joyce Vance
Division Administrator
U.S. Attorney
Alabama Division
U.S. Attorneys Office for the Northern District
Federal Highway Administration
of Alabama
9500 Wynlakes Place
1801 4th Avenue North
Montgomery, AL 36117
Birmingham, AL 35203
The Honorable Loretta Lynch
Attorney General of the United States
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-0001

22