Last week the 7th US Circuit Court of Appeals dealt a likely lethal blow to WisDOT’s plans to expand a long section of Wisconsin Highway 23 from two lanes to four lanes. The ostensible reason for the negative ruling was WisDOTs failure to use a consistent methodology for preparing its traffic forecasts. But the real reason was that traffic forecasts originally used to justify the project were plainly erroneous.
This is not an uncommon situation in Wisconsin and elsewhere. Early traffic forecasts supported the road expansion, but the facts on the ground shifted. WisDOT was heavily invested into the project, in terms of design and real estate costs, before the environmental impact statement (EIS) came under fire. WisDOT chose to fight opponents through the courts instead of making a face-saving retreat on this $151 million project.
A recent report by the Wisconsin Legislative Audit Bureau (a non-partisan governmental study group) has cited a pattern of overly-optimistic traffic forecasts by WisDOT.
Is this is a case of common sense, as exhibited by environment groups such as the plaintiff 1000 Friends of Wisconsin, finally prevailing over special interests, aka the highway lobby? Maybe. It is also a situation where good planning theory was ignored.
A little background might help clarify this complicated matter. This 19-mile segment of Highway 23 connects the two smallish cities of Fond du Lac and Sheboygan. Both cities showed very steady growth over the last century or more, until recently. The expansion of Highway 23 was a logical element of a Corridors 2020 statewide transportation plan, which was written in 2000. The traffic forecasts assumed a population growth for the area such that traffic should grow at a 2.4% annual rate.
More detail can be found in the district court opinion by judge Lynn Adelman: http://www.1kfriends.org/wp-content/uploads/2016/05/hwy23_decision.pdf.
Sometime between the writing of the Corridors 2020 plan and the writing of the EIS, those cities stopped growing, as seen below (source: population.us), but the traffic forecasts were not revised to reflect new growth rates until 2013. And, in the face of much lower, new forecasts the preferred alternative remained unchanged.
WisDOT thought it was protecting itself by using both a travel demand model and a time-series technique to make the forecast, but unfortunately, both methods embedded the same bad assumption of historical trends continuing unabated.
Courts say they will not impose their judgment as to the preferred alternative. However, if technical analysis in the EIS can be shown to be deficient, then the project is in deep trouble. In the case of Highway 23, the courts ruled that WisDOT’s choice of alternative was arbitrary and capricious, since WisDOT was unresponsive to the changed forecast. The EIS was viewed as a post hoc justification of a decision that had already been made.
Here are my takeaways from this court case.
Good forecasts and good documentation of the forecasting methodology are essential for controversial projects, since there is a possibility that the forecast must pass a court test for reasonableness. Bigger projects are the most vulnerable, since they attract attention from citizen groups with bigger legal budgets.
When bad forecasts are discovered, the agency should fix the forecast and make appropriate modifications to the project.
Plans are not immutable. Just because a project is listed in a plan or a program, doesn’t mean that project gets to stay there forever.
Forecasts will need frequent updating. A failure to update can be grounds for having an EIS tossed.
Having a variety of scenarios won’t help when it becomes clear that the scenario forming the basis of the decision is bogus.
I was unable to find any mention of a project-level travel forecast being performed, other than routine time-series. It seems to me that WisDOT would have been better served with a fresh project-level forecast just prior to the writing of the draft EIS.
Finally, Highway 23 is a good illustration of the incremental nature of transportation planning and project implementation.
Let me know if you have heard of other similar lawsuits.
Alan Horowitz, Whitefish Bay, July 1, 2017