We have been invited to publish the text of a letter sent Feb. 23 from the Connecticut Fund for the Environment (CFE) to the Federal Rail Authority (FRA), which, while supporting the principle of high speed rail, clearly states the CFE’s opposition to the FRA’s Tier 1 Environmental Impact Statement (EIS) under the following two headings:

1. The Current Tier 1 EIS Does Not Sufficiently Describe Why FRA Selected the Preferred Alternative
2. The Tier 1 EIS Fails to Provide the Public with Adequate Information Concerning the Probable Environmental Impacts and Consequences of the Preferred Alternative

The Connecticut Fund for the Environment is the premier Connecticut-based legal defense for environmental actions. It also has the embedded bi-state organization, Save the Sound.

The letter reads as follows:

RE: Tier 1 Environmental Impact Statement for NEC Future High Speed Rail Improvements Through Coastal Connecticut

Dear Acting Administrator,

Connecticut Fund for the Environment (“CFE”) and its bi-state program Save the Sound respectfully submit the following comments on the Tier 1 Environmental Impact Statement (“EIS”) for the NEC Future high speed rail project, specifically those portions of the EIS detailing anticipated impacts to coastal Southeastern Connecticut. CFE is a state and region-wide nonprofit organization dedicated to environmental protection and advocacy that represents more than 4,700 members in both Connecticut and New York.

I. CFE is Major Supporter of High Speed Rail and its Numerous Benefits

High speed rail is critical to the transportation future of both the Northeast region and the country. CFE is a longtime supporter of high speed rail service in the Northeast. High speed rail must be an integral component of our nation’s transportation infrastructure as the United States moves further into the Twenty-First Century. In addition to making long distance travel faster and more convenient, high speed rail can serve as a major economic driver both as the result of its construction and implementation and the transport efficiencies it will provide to business and private citizens. Accessible high speed rail is not only an efficient mass transit alternative for many citizens, but an effective way of decreasing carbon emissions produced by the transportation sector. This is of particular importance to states such as Connecticut, where the largest increasing portion of the state’s greenhouse gas output originates from motor vehicle transportation.(1) Many of Connecticut’s major highways, including I-95 and I-84, become clogged with traffic during normal commute times, increasing the potential for excessive greenhouse gas emissions and inefficient use of fossil fuels. Accordingly, alternative means of transport that would decrease congestion on Connecticut’s highways in major travel corridors are a necessary and much needed public objective. Given the environmental benefits of high speed rail overall, CFE strongly supports proposals to make high speed rail a reality for commuters along the Northeast Corridor. It must, however, been done properly. The current NEC Future EIS provides such scant detail about potential site-specific environmental impacts that CFE is compelled to request that Federal Railroad Administration (“FRA”) conduct a much more thorough analysis prior to making any committed decisions regarding the NEC Future project. In its current form, the EIS fails to provide any substantive information from which citizens can draw conclusions regarding the potential environmental impacts of the preferred alternative.

II. The Current Tier 1 EIS Does Not Sufficiently Describe Why FRA Selected the Preferred Alternative

As a threshold matter, CFE questions whether FRA and the Department of Transportation (“DOT”) have conducted a sufficient analysis in making the determination that the preferred alternative evaluated the Tier 1 EIS is the most feasible alternative to be pursued in order to increase rail speed along the Northeast Corridor. In regard to Connecticut, the preferred alternative entails following the existing rail corridor with a new track segment from Old Saybrook, Connecticut to Kenyon, Rhode Island and rail improvements to existing track from New Haven, Connecticut to Springfield, Massachusetts. Without meaningful environmental analysis, however, it is impossible to evaluate whether the preferred alternative is, in fact, the best alternative.

In selecting a preferred alternative so early in the process, FRA risks committing a large volume of resources to pursuing an alternative that may, ultimately, be impractical or unduly expensive to implement on the ground. This is particularly so given the preferred alternative at issue, which entails routing a new section of rail through a densely populated portion of the state and includes formidable infrastructure elements, such as a tunnel beneath the Connecticut River, discussed in greater length below. In electing to proceed along the existing coastal rail corridor, CFE is concerned that FRA may have selected convenience at the expense of overall benefit. Although FRA presumably conducted these analyses, the Tier 1 EIS contains very little comparative evaluation of the preferred alternative against the details of some of the other proposed routes through Connecticut. For example, there is no comparison between the Hartford route and the coastal route. Likewise, the EIS does not explore potential issues that may arise in regard to each alternative, such as the difficulty of blazing a brand new segment of rail through rural eastern Connecticut or the potential for the Connecticut River tunnel to be unworkable and replaced with the earlier proposal of an elevated rail bridge. As FRA prepares its final record of decision, CFE urges FRA to seriously explore the pros and cons of the preferred alternative against the routes in some of the other proposals.

III. The Tier 1 EIS Fails to Provide the Public with Adequate Information Concerning the Probable Environmental Impacts and Consequences of the Preferred Alternative

In regard to the preferred alternative as it stands in the Tier 1 EIS, CFE expresses serious concerns about the level of analysis conducted with respect to the proposed new rail bypass between Old Saybrook and Kenyon.(2) In addition to constructing a new segment of rail through a heavily populated and historic portion of the state, the EIS proposes constructing a rail tunnel beneath the Connecticut River estuary.(3) The EIS, however, is devoid of any details or feasibility analyses of such a tunnel. Indeed, there is little that can be determined from the EIS beyond the fact that the preferred alternative contains a tunnel beneath the Connecticut River in Old Lyme, Connecticut. There is no information concerning the design of such a tunnel, whether a tunnel is even feasible in the proposed location, how the tunnel will impact the Connecticut River riverbed, or the presumably extensive environmental impacts that will occur when constructing a subsurface tunnel beneath the largest river estuary in the region. Although the tunnel was ostensibly proposed in order to ameliorate the concerns that the public had with an elevated rail bridge being constructed through the heart of a historic downtown area, as the NEC Future project originally proposed, the lack of meaningful detail about the impacts of constructing such a tunnel leaves open the possibility that will ultimately prove so burdensome and destructive that FRA will fall back on its original rail bridge proposal.

CFE recognizes that the current document is programmatic in scale,(4) yet the analysis of the preferred alternative provides the public with no information other than the fact that FRA anticipates constructing a tunnel and a line on a map where the tunnel will ostensibly be located.(5) Although site specific impacts are relegated to Tier 2 in a tiered EIS process, the decision to do so in the present case leaves numerous communities and citizens in utter uncertainty as to the specifics of FRA’s exact plans in regard to the Old Saybrook-Kenyon bypass. As courts have recognized in the context of other Tiered EIS projects, the broad nature of review at the Tier 1 stage can result in serious ongoing implementation and impact problems at Tier 2 and thereafter.(6) Given the lack of precise detail about the proposed tunnel at this stage, there is a risk that when rigorous analysis of the tunnel occurs during Tier 2, FRA will encounter potential impacts that would have best been evaluated—and perhaps avoided—earlier.

For example, given the information present in the current EIS, it is impossible to know the exact manner in which the tunnel will affect the immediate river environment. The EIS does not state whether the tunnel will be through bedrock below the river or a structure along the river bottom or some other alternative. The Connecticut River estuary is unique among the region’s estuaries because of its extensive wetland and habitat resources.(7) A tunnel has the potential to seriously disrupt the Connecticut River’s natural flow into Long Island Sound and will likely affect the deposition patterns of nutrient rich sediments that flow into the estuary from further upstream. Likewise, if the proposed tunnel’s construction will disrupt the layers of sediment already present on the river bottom, such disruption will have the inevitable effect of unearthing pollutants that have become sealed off by more recent sediment deposition and reintroducing them into the water column, in effect repolluting the ecosystem with old pollutants. Yet none of these details or contingencies are addressed in the Tier 1 EIS, but relegated to later analysis at Tier 2.

Similarly, the Tier 1 EIS does not adequately address the physical impacts that would presumably occur on lands adjacent to the tunnel beneath the Connecticut River. The EIS, for example, is bereft of any meaningful analysis of the potential impacts on the invaluable wetlands that flank the Connecticut River estuary. As previously mentioned, the installation of a rail tunnel on the bottom of the river could, depending on its design and depth, potentially disrupt the historic flow patterns of the Connecticut River, which in turn could lead to the loss of wetlands. Likewise, the actual construction of the tunnel descent on the lands abutting the riverbank could negatively impact or destroy wetlands. Losing wetland acreage in a high population area such as coastal Southeastern Connecticut is a dangerous proposition, given the increased risk of shoreline flooding as climate change ushers in rising sea levels and more frequent extreme weather events. Given the level of detail in the EIS, however, it is uncertain as to whether any such impacts will occur or how extensive they may be. Due to the high risk that harm to wetland resources may ensue, such analysis should not be delayed to a subsequent stage of the administrative process.

Additionally, the Tier 1 EIS delays appropriate analysis of potential impacts to endangered and threatened species until the Tier 2 stage.(8) As is widely recognized, the Connecticut River estuary serves as invaluable habitat to a large number of species. For example, the estuary is noted as possessing one of the highest diversities of fish species in the Northeast.(9) Likewise, the estuary and river corridor serve as an important resource for numerous migratory bird species.(10) As the EIS notes, many federally endangered species are currently present in the very local ecosystem to be affected, including the Roseate Tern (Sterna dougallii), Atlantic Sturgeon (Acipenser oxyrinchus), Shortnose Sturgeon (Acipenser brevirostrum), and several species of sea turtle.(11) As a practical matter, putting off the site specific analysis of impacts to endangered species can result in numerous problems either at Tier 2 or during project implementation, should an endangered species stand in the path of the tunnel’s proposed route.(12) The risk of such an occurrence is high, for as the EIS recognizes, Connecticut contains the highest number of endangered and threatened species of all states impact by the overall project.(13) At that point, irretrievable resources and time will have been needlessly spent in vain when an earlier analysis could have avoided such a problem while safeguarding habitat.

CFE also notes its grave concern regarding the earlier proposal for an elevated rail bridge over the Connecticut River that would direct the route of the new spur through the heart of historic Old Lyme and nearby cultural sites such as the Florence Griswold Museum. As the preparation of an environmental impact statement requires the sponsoring agency to consider the effects on the “human environment,” the health and quality of life in communities directly affected by a massive project such as NEC Future should be of paramount importance in FRA’s decision making. Should the Connecticut River tunnel ultimately prove unworkable or overly expensive, CFE shares the concerns of many citizens that FRA will implement the original rail bridge proposal instead, thereby subjecting a historic town center to irreparable damage and a diminution in aesthetic and environmental value. If there is even a remote possibility that FRA may ultimately implement a rail bridge over the Connecticut River as an alternate aspect of the new spur, it must fully present and analyze the expected environmental impacts at the current stage of the process so that the public may be fully and adequately informed of such a possibility.

Overall, CFE recognizes that the NEC Future project is one of enormous scale. Although a Tier 1 EIS is intended to be programmatic in scale, the current document provides directly affected communities and stakeholders with only the merest indications and suppositions as to what actual impacts will entail. In terms of the preferred alternative’s Old Saybrook-Kenyon spur and the subsurface tunnel included therein, the lack of concrete detail leaves local communities in a state of uncertainty as to what such a massive infrastructure project will mean in terms of impacts on the human environment and nearby ecosystem resources. As it is entirely possible that a yet unforeseen environmental impact will prevent actual implementation of the preferred alternative as presented, affected communities and the public are justly concerned that a subsequent, on the ground decision will result in earlier aspects of the proposed project being spontaneously resurrected as a means of quickly avoiding a major environmental impact and moving ahead with the project without additional delay. Given the importance of high speed rail to the future, it is necessary that the environmental impacts of any proposal are fully evaluated and understood by all stakeholders prior to moving forward.

Respectfully submitted,

Andrew W. Minikowski, Esq.
Legal Fellow Connecticut Fund for the Environment
900 Chapel Street, Upper Mezzanine
New Haven, CT 06510
203-787-0646 ex. 108

Supporting notes referenced by number in the text:

1 Acadia Center, “Updated Greenhouse Gas Emissions Inventory for Connecticut: Recent Increases and Underlying Factors,” (June 13, 2016), available at http://acadiacenter.org/wp-content/uploads/2016/06/CT-GHG-EmissionsInventory-Report-2.pdf (last visited Sept. 9, 2016).

2 Federal Railroad Administration, “Tier 1 Draft Environmental Impact Statement,” Appendix A, 40–41 (Nov. 2016), available at http://www.necfuture.com/pdfs/tier1_deis/appendix/app_a.pdf (last visited Jan. 30, 2017).

3 Id. at 7.5-7.

4 American Association of State Highway and Transportation Officials, “Guidelines on the Use of Tiered Environmental Impact Statements for Transportation Projects,” 3 (June 2009); see Ilio’ulaokalani Coalition v. Rumsfeld, 464 F.3d 1083, 1094 (9th Cir. 2006).

5 Federal Railroad Administration, supra note 2.

6 See Hoosier Environmental Council v. U.S. Dept. of Transp., 2007 WL 4302642, *7 (S.D. Ind. Dec. 10, 2007).

7 Jenna Pirotta, “Connecticut River Estuary: Haven for Juvenile Fish and Migratory Fish Highway,” N.O.A.A. FISHERIES GREATER ATLANTIC REGION, available at https://www.greateratlantic.fisheries.noaa.gov/stories/2012/haven_for_juvenile_fish_and_migratory_fish_highway.h tml (last visited Jan. 30, 2017).

8 Federal Railroad Administration, supra note 2, at 7.6-9.

9 Glenn D. Dreyer and Marcianna Caplis, “Living Resources and Habitats of the Lower Connecticut River,” 56 (Dec. 2001), available at http://digitalcommons.conncoll.edu/cgi/viewcontent.cgi?article=1037&context=arbbulletins (last visited Jan. 26, 2017).

10 Id. at 48.

11 Federal Railroad Administration, supra note 2, at 7.6-5.

12 See generally Tennessee Valley Authority v. Hill, 437 U.S. 153, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978).

13 Federal Railroad Administration, supra note 2, at 7.6-3.