A federal appellate panel has dismissed Wisconsin’s appeal over the Highway 23 project challenged by 1000 Friends of Wisconsin.

The environmental group sued in 2011 over the highway project, which would widen Highway 23 between Sheboygan and Fond du Lac.

The group maintains the federal environmental impact study was incomplete and inadequate and therefore the project was not eligible for federal funding in the $168 million project.

Part of the argument challenged the Wisconsin Department of Transportation claim that the highway expansion is needed to meet future traffic demands.

A district court judge concluded that a portion of the environmental impact statement projecting traffic loads to 2035 did not disclose all the assumptions and other ingredients of the traffic-forecasting model.

This led the U.S. Department of Transportation to re-issue an EIS, with added details about how traffic estimates were generated.

The district court, however, concluded that this revised statement was still inadequate and issued an order that essentially vacated USDOT’s record of decision, the document allowing for federal funding of the project.

The Wisconsin Department of Transportation and a state employee appealed, but not the U.S. Department of Transportation.

The appellate panel of three judges in the Seventh Circuit heard oral argument Nov. 7, 2016, and decided the case June 19. The judges are Frank Easterbrook, Ann Williams and Gary Feinerman.

The 2-1ruling, circulated June 20 and written by Easterbrook, said, “So we have a mismatch between the relief and the appellant. The only relief is directed against USDOT, which has not appealed. The only appellants remain free to continue the highway project, though on the state’s dime.”

The appeals court added, “USDOT maintains that its decision not to appeal forecloses any other challenge to the district court’s decision and we agree.”

The court also said, “Because the federal agency has not appealed, it cannot distribute funds to Wisconsin for the Route 23 project until it issues a new environmental impact statement. Wisconsin cannot seek relief against a judgment that does not bind it.”

Feinerman dissented.

Milwaukee attorney Dennis M. Grzezinski, who specializes in environmental law and represents 1000 Friends of Wisconsin, said he is pleased with the decision.

He said it is noteworthy the court highlighted the fact that the U.S. DOT did not appeal the district court ruling. By not appealing, the federal agency confirmed the correctness of 1000 Friends of Wisconsin claims against the decision-making on the Highway 23 project .

The state could appeal to the full Seventh Circuit or appeal to the U.S. Supreme Court. 

Editor’s note: This story will be updated.


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