Clean Air Carolina v. NC Dept of Transportation

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:14-cv-00863-D. Copies to all parties and the district court. [999848172]. [15-2091]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-2091

CLEAN AIR CAROLINA;
WILDLIFE FEDERATION,

YADKIN

RIVERKEEPER;

NORTH

CAROLINA

Plaintiffs - Appellants,
v.
NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; FEDERAL HIGHWAY
ADMINISTRATION; JOHN F. SULLIVAN, in his official capacity
as Division Administrator of FHWA; NICHOLAS J. TENNYSON, in
his official capacity as NC Secretary of Transportation,
Defendants - Appellees.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
James C. Dever III,
Chief District Judge. (5:14-cv-00863-D)

Argued:

May 12, 2016

Decided:

June 9, 2016

Before WILKINSON, MOTZ, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Kimberley Hunter, SOUTHERN ENVIRONMENTAL LAW CENTER,
Chapel Hill, North Carolina, for Appellants.
Erika Barnes
Kranz, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.;
Thomas Norfleet Griffin, III, PARKER POE ADAMS & BERNSTEIN LLP,
Charlotte, North Carolina, for Appellees.
ON BRIEF: Ramona
McGee, SOUTHERN ENVIRONMENTAL LAW CENTER, Chapel Hill, North
Carolina, for Appellants. John C. Cruden, Assistant Attorney
General, Jared Pettinato, Environment & Natural Resources

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Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.;
Gloria Hardiman-Tobin, Jack Gilbert, Christopher S. Jones,
FEDERAL HIGHWAY ADMINISTRATION, Atlanta, Georgia; Matthew L.
Fesak, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellees Federal
Highway Administration and John F. Sullivan.
Scott Slusser,
Special Deputy Attorney General, NORTH CAROLINA DEPARTMENT OF
JUSTICE, Raleigh, North Carolina, for Appellees North Carolina
Department of Transportation and Nicholas J. Tennyson.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
The
Federal

North

Carolina

approved

Highway

Department

Administration

construction

of

a

of

Transportation

(collectively

twenty-mile

toll

“the
road

and

the

Agencies”)
in

western

North Carolina linking Mecklenburg and Union Counties -- the
Monroe Connector Bypass.
toll

road,

Clean

Air

Federation,

and

Conservation

Seeking to enjoin construction of the

Groups”)

Carolina,

Yadkin

the

North

Riverkeeper

filed

suit

in

Carolina

Wildlife

(collectively,

2010.

The

“the

Conservation

Groups contended that the process by which the Agencies approved
the road violated the National Environmental Policy Act (“NEPA”)
and

the

Administrative

Procedure

Act

(“APA”).

See

National

Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-74 (2012);
Administrative Procedure Act, 5 U.S.C. §§ 701-06 (2012).
The

district

Agencies.

court

granted

summary

judgment

to

See N.C. Wildlife Fed’n v. N.C. Dep’t of Transp., No.

5:10-CV-476-D, 2011 WL 5042075 (E.D.N.C. Oct. 24, 2011).
appeal, we reversed and remanded.
N.C.

the

Dep’t

explained

of
that

Transp.,
“NEPA

677

F.3d

On

See N.C. Wildlife Fed’n v.
596

procedures

(4th

Cir.

emphasize

2012).

We

clarity

and

transparency of process over particular substantive outcomes.”
Id. at 603.
assumptions

“Because the Agencies failed to disclose critical
underlying

their

decision

to

build

the

road

and

instead provided the public with incorrect information,” we held
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that their lack of transparency violated NEPA.

Id. at 598.

We

reserved judgment on the legitimacy of the Agencies’ analysis,
and remanded “so that the Agencies and the public [could] fully
(and publicly) evaluate” that analysis.

Id. at 605.

In July 2012, the Agencies rescinded their prior Record of
Decision and reinitiated the NEPA process.
the

Agencies

Statement

published

(“EIS”)

a

indicating

new

draft

that

they

In November 2013,

Environmental
had

Impact

“reevaluated

the

primary needs for the proposed action” and that “those needs
[had] not changed” from those in the original EIS.

In the time

after issuance of the original EIS, the Agencies had reduced
traffic congestion on U.S. 74 -- the road in question -- through
minor

improvements

nevertheless

in

concluded

the
that

infrastructure.
“while

The

providing

some

Agencies
short-term

benefit,” the minor improvements would “not meet the purpose and
need for the Monroe Connector Bypass project.”

The Agencies

thus concluded that the toll road was still “the best option”
for meeting the area’s long-term traffic needs.
In reaching that conclusion, the Agencies also reevaluated
the data that they had failed to disclose to the public during
the

original

NEPA

process.

In

order

to

evaluate

the

environmental impact of building the toll road, NEPA requires
the Agencies to compare the projected impact of building the
toll road to a “no-build” baseline of the environmental impact
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without the road.

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Previously, the no-build baseline that the

Agencies relied on had in some parts assumed the existence of
the toll road -- and in denying that assumption the Agencies had
not

been

transparent

with

the

public.

Now,

admitting

their

original error, the Agencies conducted a new no-build analysis
that properly excluded the existence of the toll road.
concluded,

however,

that

the

travel

time

and

They

land

use

projections -- taking into account the correct information -were identical to their original projections.
Agencies

confirmed

that

their

original

Consequently, the

no-build

model

was

accurate, and compared it to an updated build model based on
current data.
In

December

2013,

their draft EIS.
including
reliance

an
on

the

Agencies

held

public

hearings

on

The Conservation Groups submitted comments,

expert
their

report

prior

that

data.

criticized
In

May

2014,

the

Agencies’

the

Agencies

simultaneously released a new final EIS and a new Record of
Decision.

The

final

projections,

which

had

EIS

discussed

been

released

projected growth in the area by 2040.
that

the

previously

surrounding

counties

estimated,

estimates by 2040.

but

would

would

updated
in

socioeconomic

January

2014,

that

Those projections showed
not

still

grow
reach

as

quickly

the

as

previous

The Record of Decision thus confirmed the

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Agencies’ decision to build the road.

The Conservation Groups

again filed suit.
The Conservation Groups alleged that the Agencies violated
NEPA and the APA in four ways:
was

arbitrary

analysis

and

was

(1) the alternatives analysis

capricious;

arbitrary

(2)

and

the

environmental

capricious;

(3)

the

impact
Agencies

undermined NEPA by fostering a climate of misinformation; and
(4) the Agencies should not have issued the final EIS and the
Record of Decision at the same time.
In a lengthy opinion, the district court rejected those
challenges.

First, the court found that the Conservation Groups

did not establish that the Agencies “failed to take a sufficient
‘hard look’ at the reasonable alternatives.”

Clean Air Carolina

v. N.C. Dep’t of Transp., No. 5:14-CV-863-D, 2015 WL 5307464, at
*8 (E.D.N.C. Sept. 10, 2015).

The district court explained that

the Agencies “adequately created and compared No Build and Build
scenarios”

and

corrected

alternatives.

their

Id. at *10.

previous

flaws

in

evaluating

Second, the court found that the

Agencies had adequately analyzed the environmental impacts of
the

project

--

including

any

growth

induced

by

itself and the cumulative impacts of the project.
13.

the

project

Id. at *11-

Third, the court found that “in light of the administrative

record

as

a

whole”

the

Agencies

had

complied

requirements for public comment and transparency.
6

with

NEPA’s

Id. at *14-

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Finally, the court found that the Agencies did not abuse

their discretion in issuing the final EIS and the Record of
Decision together.
had

met

all

of

Id. at *15-16.
the

requirements

Concluding that the Agencies
of

NEPA

and

the

APA,

district court granted summary judgment to the Agencies.
*17.

the

Id. at

The Conservation Groups then filed this appeal.
Having

carefully

considered

the

controlling

law

and

the

parties’ briefs and oral arguments, we affirm on the reasoning
of the thorough district court opinion.
AFFIRMED

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