Cook County Record

Sunday, April 5, 2020

Environmental groups' challenge to Illiana Tollway project rejected by Illinois appeals panel

By Scott Holland | Jun 1, 2018

Illinois tollway
By NBA2030 [GFDL ( or CC BY-SA 3.0 (], via Wikimedia Commons

A state appeals court has upheld a lower court’s ruling against environmental groups suing to block the Illiana Tollway project.

Illinois-based Openlands and California’s Sierra Club sued the Illinois Department of Transportation along with Secretary of Transportation Ann L. Schneider, the Chicago Metropolitan Planning Agency Board and the Metropolitan Planning Organization Policy Committee. Cook County Judge David B. Atkins had granted summary judgment in favor of the plaintiffs, effectively clearing future work on the Illiana, a 470-mile extension from Interstate 55 in Illinois to Interstate 65 in Indiana estimated to cost more than $1 billion.

The nonprofit agencies argued the money to be spent on the project violates state law, but they also allege it would jeopardize the Midewin National Tallgrass Prairie in Will County. They appealed Atkins’ ruling to the Illinois First District Appellate Court, which issued an opinion May 23. Justice Terrence Lavin wrote the opinion; justices James Fitzgerald Smith and Nathaniel Howse Jr. concurred.

Justice Terrence Lavin

In appealing, the plaintiffs repeated their assertion the MPO Policy Committee lacked the authority to amend a plan by including the Illiana project. Like Atkins, the panel rejected that argument. Lavin’s opinion detailed the structures, powers and responsibilities of both the Policy Committee and the Chicago Metropolitan Planning Agency Board. It also examined the Regional Transportation Act, which federally designates the Policy Committee to approve “all plans, reports and programs required of an MPO” for the Chicago region.

Specifically, the nonprofit groups said the RTA language makes it clear the CMPA Board “shall” approve MPL plans, reports and programs before the Policy Committee gives final approval. And since the CMPA Board voted to exclude the Illiana project from short- and long-term regional plans, the Policy Committee shouldn’t have been able to vote on its inclusion, the environmental groups argued.

The appellate panel, though, disagreed on the weight of the word “shall,” finding it to be used in a directory sense rather than to establish a mandatory obligation. Lavin noted the law does not prescribe a consequence should the government bodies fail to follow the statutory procedure, giving weight to the notion the legislative intent was to provide a guideline rather than an essential procedure.

“There is no negative language prohibiting further action if the Chicago Metro Planning Agency Board does not first approve of all MPO plans, reports and programs,” Lavin wrote. “In fact, the Regional Planning Act contains numerous directives employing the word, ‘shall,’ without identifying consequences for failing to enforce the obligatory language.”

Further, the panel determined, the plaintiffs didn’t specify how the way the agencies voted deprived the plaintiffs of a constitutional right. Lavin said his panel’s reading of the laws “is consistent with the 2015 memorandum of understanding that has been in place between the MPO Policy Committee and the Chicago Metro Planning Agency for a number of years. Per that agreement, the Board is to forward recommendations to the MPO Policy Committee, but the MPO Policy Committee is to ‘act’ on the recommendations and ‘take final action as required by federal law.’ ”

Ruling in favor of the nonprofit agencies’ arguments, Lavin said, would effectively mean “any special district unit of local government could block an interstate project.”

The panel also clarified the Policy Committee is not a “board within” the CMPA, rather they are statutorily separate legal entities.

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Organizations in this Story

Illinois Department of TransportationOpenlandsIllinois First District Appellate CourtSierra Club National HeadquartersCircuit Court of Cook County