Environmental Review Becoming Tripwire for Southwest Light Rail?

04/21/2015 / Gary A. Van Cleve

Is the Metropolitan Council properly conducting environmental review for its 16-mile, 17-station Southwest Light Rail transit project (SWLRT) that extends through five cities from Minneapolis to Eden Prairie? This is the fundamental question raised in two federal lawsuits by affected property owners in Minneapolis and Minnetonka over the agency’s conduct of the environmental review process. The most recent lawsuit, brought by Larkin Hoffman attorneys on behalf of certain residents of a Minnetonka apartment complex and its owner, the Claremont Apartments, alleges that the Metropolitan (Met) Council has failed to follow federal and state law in conducting mandatory environmental review for the SWLRT. Opus Woods Conservation Assn. v. Metropolitan Council, U.S. Dist. Ct. File No. 0:15-cv-01637-JRT-SER.

The Opus Woods lawsuit alleges that the Met Council did not include an area in Minnetonka adjacent to the Claremont Apartments consisting of 49 acres of parkland, open space and a public trail – known as Opus Hill – in the agency’s legally-required evaluation of environmental impacts on open space and recreational areas. The lawsuit alleges that the omission of Opus Hill in the ongoing environmental review process is in disregard of a federal mandate that feasible and prudent alternatives must be considered where a federally-funded transit project is proposed through public parks, recreational areas and other sensitive natural or historic sites. The lawsuit asks the federal court to declare this a violation of both federal law under the National Environmental Policy Act (NEPA) and a violation of state law, which requires municipal consent by affected cities of the physical transit design as shown in the preliminary design plans for the project. Opus Woods alleges that the Met Council prematurely obtained municipal consent from the City of Minnetonka based on an environmental review process (a) that has not yet been completed, (b) that has omitted study of the 49-acre Opus Hill open space and trail area and (c) that will include no consideration of any alternative to routing the transit line through Opus Hill trail and recreational area.

An earlier federal lawsuit, brought by the Lakes and Parks Alliance of Minneapolis (LPA), challenges similar alleged deficiencies in the environmental review process. LPA’s lawsuit focuses on the Kenilworth Corridor of Minneapolis and the light rail design through this popular bicycle and pedestrian trail corridor, which crosses the channel connecting Cedar Lake with Lake of the Isles. In a preliminary ruling on March 16, 2015, U.S. District Judge Jack Tunheim ruled that two of LPA’s claims against the Metropolitan Council could go forward because it appeared that the Met Council had gotten the cart before the horse in the environmental review process. Specifically, NEPA seeks to keep all reasonable alternatives open during the review process and until the final decision on environmental review has been made. The court’s preliminary ruling states that LPA’s NEPA-based claim may proceed because the Met Council obtained municipal consent and spearheaded negotiations with certain cities that “dramatically reduced the number of realistically available routes for the SWLRT …” while environmental review remains incomplete and ongoing. The court also said that a claim was stated under the municipal consent statute, since consent was premature and thus not fully informed, in light of ongoing environmental review.

How will these pending federal lawsuits affect the SWLRT? It would appear that, at the very least, the timeline for commencing acquisitions of private property (either through voluntary negotiations or eminent domain proceedings) will be pushed back until the autumn of 2016. In turn, a delay in the property acquisition process could result in a delay in the commencement and completion of construction of the transit line. If future court rulings conclude that defects exist in the environmental review process, then more delay may follow.

Gary Van Cleve and Rob Stefonowicz are attorneys for plaintiffs in the Opus Woods lawsuit.