Clean Air Carolina v. NC Dep't of Transportation , 651 F. App'x 225 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-2091
CLEAN AIR CAROLINA; YADKIN RIVERKEEPER; NORTH CAROLINA
WILDLIFE FEDERATION,
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Affirmed by unpublished per curiam opinion.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
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Unpublished opinions are not binding precedent in this circuit.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 North Carolina Department of Transportation and the
Federal Highway Administration (collectively “the Agencies”)
approved construction of a twenty-mile toll road in western
North Carolina linking Mecklenburg and Union Counties -- the
Monroe Connector Bypass. Seeking to enjoin construction of the
toll road, Clean Air Carolina, the North Carolina Wildlife
Federation, and Yadkin Riverkeeper (collectively, “the
Conservation Groups”) filed suit in 2010. 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 court granted summary judgment to the
Agencies. 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). On
appeal, we reversed and remanded. See N.C. Wildlife Fed’n v.
N.C. Dep’t of Transp., 677 F.3d 596 (4th Cir. 2012). We
explained that “NEPA procedures emphasize clarity and
transparency of process over particular substantive outcomes.”
Id. at 603. “Because the Agencies failed to disclose critical
assumptions 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. In November 2013,
the Agencies published a new draft Environmental Impact
Statement (“EIS”) indicating that they had “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 in the infrastructure. The Agencies
nevertheless concluded that “while providing some 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. 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. They
concluded, however, that the travel time and land use
projections -- taking into account the correct information --
were identical to their original projections. Consequently, the
Agencies confirmed that their original no-build model was
accurate, and compared it to an updated build model based on
current data.
In December 2013, the Agencies held public hearings on
their draft EIS. The Conservation Groups submitted comments,
including an expert report that criticized the Agencies’
reliance on their prior data. In May 2014, the Agencies
simultaneously released a new final EIS and a new Record of
Decision. The final EIS discussed updated socioeconomic
projections, which had been released in January 2014, that
projected growth in the area by 2040. Those projections showed
that the surrounding counties would not grow as quickly as
previously estimated, but would still reach the previous
estimates by 2040. 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: (1) the alternatives analysis
was arbitrary and capricious; (2) the environmental impact
analysis was arbitrary and capricious; (3) the 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 their previous flaws in evaluating
alternatives. Id. at *10. Second, the court found that the
Agencies had adequately analyzed the environmental impacts of
the project -- including any growth induced by the project
itself and the cumulative impacts of the project. Id. at *11-
13. Third, the court found that “in light of the administrative
record as a whole” the Agencies had complied with NEPA’s
requirements for public comment and transparency. Id. at *14-
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15. Finally, the court found that the Agencies did not abuse
their discretion in issuing the final EIS and the Record of
Decision together. Id. at *15-16. Concluding that the Agencies
had met all of the requirements of NEPA and the APA, the
district court granted summary judgment to the Agencies. Id. at
*17. 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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