Can the NAFTA Superhighway be Stopped?

U.S. District Judge David Hamilton’s ruling on a citizens’ lawsuit against the I-69/NAFTA Highway should be a call to action for Americans who care about the future of life on the planet and the fate of their democracy.

The 58-page ruling exposes the nation’s environmental protection laws as laughable frauds and offers insight into the political mindset that earned Indiana its 49th-place ranking in Forbes Magazine’s October 2007 “Greenest States” list. “Indiana received across-the-board low marks,” the influential business magazine said.

Hamilton’s decision also details how federal laws are flouted and manipulated by the public-private forces of greed and environmental devastation in corrupt, toxic backwaters like Indiana.

In rejecting a challenge from citizens and citizen groups, Hamilton, recommended for appointment to the bench by former Indiana governor and vice presidential hopeful Sen. Evan Bayh, concluded that a highway-selection process that ignores crucial evidence and the public will is neither “arbitrary nor capricious.”

And elected public officials’ knowingly and intentionally concocting a process that favors the most environmentally destructive and expensive of the plausible alternatives, he ruled, isn’t an “abuse of discretion.”


Hamilton ruled against arguments made by the Hoosier Environmental Council (HEC), Citizens for Appropriate Rural Roads (CARR), Sassafras Audubon Society and several individuals, including three current and former elected local officials.

Filed and argued by lawyers from the Environmental Law & Policy Center, the lawsuit challenged the actions of several federal and state agencies, most notably the Federal Highway Administration (FHWA) and the Indiana Department of Transportation (INDOT). It alleged violations of the National Environmental Policy Act (NEPA), Endangered Species Act and other federal laws in the route-selection process for an I-69 extension southwest of Indianapolis.

I-69 runs from the Canadian border at Port Huron, Mich., to Indianapolis, where it ends. In 1998, four years after the North American Free Trade Agreement (NAFTA) became law, President Bill Clinton signed a highway bill that designated I-69 as an “international trade route” that would connect Canada with Mexico at its border in Laredo.

That same year, Gov. Frank O’Bannon’s administration contracted with the Washington D.C. law firm to ensure that the state would not lose the legal challenges ahead. The firm’s partners include former National Democratic Party Chairman Robert S. Strauss.


The near complete abdication of responsibility for environmental protection by Indiana’s state and federal policy makers – Democrats and Republicans alike – has been extensively documented since before the Forbes ranking in October.

During the Bayh administration in the mid-1990s, for example, a state-by-state comparison of environmental health called the Green Scissors Report ranked the Hoosier state either 49th and 50th in air pollution, water pollution, toxics and hazardous waste, and quality of life.

In his ruling, Hamilton noted that, since 2003, “nine counties including and surrounding Indianapolis moved from ‘maintenance status’ to ‘non-attainment status,’ two counties moved into ‘maintenance status’ and several counties in the Evansville area also moved into ‘non-attainment’ status” for Clean Air Act requirements.

A July 2006 study by the Environmental Integrity Project found that Indiana has five of the nation’s 50 dirtiest power plants, the most of any state, all located in Southwest Indiana along the proposed I-69 extension.

According to Toxic Release Inventory data collected from U.S. Environmental Protection Agency documents by John Blair, president of the Evansville-based environmental watchdog group Valley Watch, two southwest Indiana industrial facilities – AK Steel and Duke Energy’s Gibson Station – release more toxic pollution than three of the nation’s largest counties – San Diego and Los Angeles in California and Cook in Illinois – combined.

In 2007, Forbes reported: “Indiana had the sixth highest carbon footprint of any state, and four of its metro areas are listed by the American Lung Association as having bad smog problems, and one with an ozone pollution problem. We ranked its water quality worse than only four other states.”

Citizens attending INDOT hearings in Bloomington were unambiguous in their opposition to the social, environmental and cultural pollution that I-69 will wreak upon their communities.

and the rest of the environmental bottom-feeders, the magazine concluded: “All suffer from a mix of toxic waste, lots of pollution and consumption and no clear plans to do anything about it. Expect them to remain that way.”


Hamilton’s personal and political connections to those responsible for the state of Indiana’s environment, those entrusted for 16 years with protecting Indiana citizens from environmental threats like air and water and toxic waste pollution, are long and deep.

As Hamilton observed, for more than half a century, “Indiana has been searching for a route to build a major highway through the southwestern quadrant of the state.” This particular incarnation of that determination was initiated by a study commissioned early in Gov. Evan Bayh’s administration.

Hamilton worked as a key political strategist in Bayh’s successful 1986 campaign for secretary of state. Bayh was elected governor in 1988, and Hamilton served as his chief legal counsel for three years before Bayh nominated him to the U.S. District Court for Southern Indiana in 1994.

O’Bannon, who was twice elected lieutenant governor as Bayh’s running mate, appointed Hamilton’s brother John as his first commissioner of the Indiana Department of Environmental Management when O’Bannon succeeded Bayh as governor in 1997. John Hamilton had served as Lt. Gov. O’Bannon’s chief of staff.

The Hamiltons’ uncle is former Indiana Congressman and 9/11 Commission Co-chair Lee Hamilton.


Based upon the facts Hamilton cites in his ruling, it would be difficult to fathom a more blatant example of a state administration’s abuse of its environmental policy-making discretion than O’Bannon’s approach to I-69.

Hamilton noted that Alternative 3C, the route O’Bannon officially designated as the “preferred route” in 2003, “followed a path very similar to the route studied in the 1990s from Bloomington to Evansville.”

That route roughly follows Ind. 57 from Evansville to southwestern Greene County, cuts a new-terrain swath to Bloomington and then follows Ind. 37 to the southwest side of Indianapolis.

But while NEPA, according to Hamilton, requires agencies involved in major federal actions to “closely evaluate reasonable alternatives that would minimize environmental harm,” Evansville-to-Bloomington was the only route that INDOT ever really considered.

As Hamilton wrote, “a specific plausible alternative” was one of four main themes that emerged in public comments on a 1996 Environmental Impact Statement (EIS) on the route.

Proposed and promoted by citizen groups, including CARR and HEC, that route followed existing, four-lane U.S. 41 from Evansville to Interstate 70 at Terre Haute and then to Indianapolis.

INDOT, however, did not include 41/70 as an alternative route until after another round of public input in November 2001, calling it Alternative 1 among 12 possible routes. In its Final Environmental Impact Statement (FEIS), INDOT rejected 41/70 and three others for “their poor ability to meet the project’s core goals,” Hamilton wrote.

Those goals were identified in 1999 as “(1) strengthening southwestern Indiana’s highway network, (2) stimulating economic growth in southwestern Indiana, and (3) completing the Indiana portion of the international trade route,” Hamilton wrote.

“In the end, INDOT identified Alternatives 2C, 3B, 3C, 4B and 4C as their preferred alternatives,” Hamilton said. “INDOT published these results in July 2002 for agency and public comment.”


While Hamilton noted that INDOT received “more than 20,000” public comments on the FEIS, he did not mention that 94 percent of them – 20,467 of 21,873 – opposed the decision. Nor did he mention the 150,000 signatures that Hoosiers affixed to petitions opposing the new-terrain I-69 route.

In November 2002, four months after the preferred routes were announced, the EPA asked INDOT to reconsider Alternative 1, calling it “the least environmental damaging route proposed.” Preferred Alternative 3C would have “significant impacts on sensitive resources, particularly wetlands and aquatic resource and potential impacts to surface/ground water associated with karst areas,” the EPA said.

Karst topography is characterized by bedrock lined with environmentally sensitive sinkholes, caves and underground streams.

The U.S. Department of the Interior also registered “significant objections” to 3C, Hamilton wrote, and “expressed a preference for Alternative 1,” noting that it had “the fewest impacts to [threatened and endangered] species, forests, core forests, wetlands, floodplains, karst features, rivers listed on the [Nationwide Rivers Inventory], and water quality.”

Public opinion and federal agency input notwithstanding, “In January 2003, Indiana Governor Frank O’Bannon announced that he had accepted INDOT’s recommendation to choose Alternative 3C as the I-69 corridor,” Hamilton wrote.

In March 2004, FHWA issued its final Record of Decision, “officially adopting Alternative 3C as the I-69 corridor through Southwest Indiana.”

Hamilton’s ruling also did not mention that, by the end of 2004, the state had paid the Washington lawyers of Akin Gump Strauss Hauer & Feld at least $1.25 million of Hoosier taxpayer money, probably $1.5 million.


INDOT chose to proceed with the route-selection process in phases, known as “tiering,” in which it explored “broad and far-reaching issues” in Tier One and site-specific issues in subsequent tiers.

And while Hamilton rejected arguments that INDOT was abusing the process to avoid the need to compare environmental impacts, he warned that the state incurs risk by pursuing this course.

“Environmental impacts that appear to be tolerable and potentially manageable in the first tier may emerge as unacceptable threats to affected species and ecosystems during the more detailed scrutiny in the second tier,” Hamilton wrote.

For example, the 2003 Environmental Impact Statement “may have underestimated the actual number and type of karst features that Alternative 3C will affect,” Hamilton wrote.

Because the most serious air pollution impacts from I-69 will be in Indianapolis and Evansville, Hamilton warned that “no single alternative escapes the brunt of these changes,” referring to Clear Air Act compliance status of counties in the two metro areas.

And given the highway’s potential impacts on water quality in Southwest Indiana, Hamilton noted that EPA has discretionary authority to veto water permits that the federal Army Corps of Engineers will have to issue on the project.

Both EPA and the Corps of Engineers expressed concerns about Clean Water Act issues in Tier 1. And the Corps has indicated that a final determination on these issues “cannot be made until final information is developed and provided under Tier 2 and presented in the formal request for a permit.”

And then there is the endangered Indiana bat.

Hamilton wrote that half of the surviving Indiana bat population lives in Indiana and that the species’ numbers declined from about 883,300 when it was declared endangered in 1967 to “around 376,932 in 2001 before beginning to increase slightly.”

Of the 206,610 Indiana bats estimated to live in Indiana in 2005, 74,042 hibernated in caves within five miles of 3C.

“More than one-third of all Indiana bats wintering in Indiana hibernate in only three caves within relatively short distance from Alternate 3C,” Hamilton wrote “… The record does not account for over two-fifths of the Indiana hibernating population.”


Whether Hamilton’s outline of the facts and issues in Frank O’Bannon’s I-69 process is simply a recitation of possibilities or a harbinger of trouble ahead won’t be known until the rest of the facts are in.

But one message he sent is unmistakable: the National Environmental Protection Act is not an environmental protection law.

“The act does not mandate a particular outcome or contain substantive environmental standards,” Hamilton wrote, citing a 1989 District Court ruling that found NEPA “simply prescribes the necessary process.”

And to avoid being found arbitrary and capricious in environmental cases, all an agency must do is take a “hard look” at the probable environmental consequences, he found. “Hard look” has been defined by the courts as “a thorough investigation into the environmental impacts of an agency’s action and a candid acknowledgment of the risk that those impacts entail.”

“The National Environmental Policy Act relies upon a ‘faith in technocratic expertise with a trust in democracy,'” Hamilton concluded, not addressing the question of what to do when that faith is shattered.

“Public officials are required to consider reasonable alternatives, to listen and respond to objections, and to explain the reasons for choosing a selected route,” he wrote. “Citizens, likewise, have the opportunity to examine, criticize, and test the government’s proposed course of action.

“But in the end, after evaluating a range of possible alternatives, if the democratically accountable government chooses a course of action disagreeable to some, that decision still stands.”

STEVEN HIGGS is the editor of the Bloomington Alternative. He can be reached at

The site includes an extensive archive of stories on the I-69/NAFTA Highway.




Steven Higgs is a retired journalist and author who lives in Bloomington, Ind., and teaches journalism at the Indiana University Media School. He can be reached at