South Carolina Wildlife Federation v. Limehouse

Decision Date05 December 2008
Docket NumberNo. 07-1431.,07-1431.
Citation549 F.3d 324
PartiesSOUTH CAROLINA WILDLIFE FEDERATION; South Carolina Coastal Conservation League; Audubon South Carolina, Plaintiffs-Appellees, v. H.B. LIMEHOUSE, Jr., Executive Director, South Carolina Department of Transportation, Defendant-Appellant, and Federal Highway Administration; Robert L. Lee, Division Administrator, Federal Highway Administration, Defendants.
CourtU.S. Court of Appeals — Fourth Circuit

ARGUED: Randolph R. Lowell, Willoughby & Hoefer, P.A., Columbia, South Carolina, for Appellant. James Blanding Holman, Southern Environmental Law Center, Charleston, South Carolina, for Appellees. ON BRIEF: Mitchell Willoughby, Tracey C. Green, Willoughby & Hoefer, P.A., Columbia, South Carolina, for Appellant. Geoffrey R. Gisler, Southern Environmental Law Center, Chapel Hill, North Carolina, for Appellees.

Before MOTZ, KING, and DUNCAN, Circuit Judges.

Affirmed by published opinion. Judge DUNCAN wrote the opinion, in which Judge MOTZ and Judge KING joined.

OPINION

DUNCAN, Circuit Judge:

The South Carolina Wildlife Federation and co-plaintiffs (collectively "SCWF") brought suit against federal and state agencies and agency directors, alleging violations of the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., arising from the proposed construction of the Briggs-DeLaine-Pearson Connector ("the Connector") in South Carolina. Relevant to this appeal, the Director of the South Carolina Department of Transportation ("the Director"), who was sued in his official capacity, moved to dismiss on the ground that the claims against him were barred by sovereign immunity under the Eleventh Amendment. The district court denied the Director's motion, and he filed this interlocutory appeal.1 For the reasons that follow, we affirm.

I.

NEPA requires an agency undertaking a "major Federal action[ ]" to produce a "detailed statement" concerning "the environmental impact of the proposed action." 42 U.S.C. § 4332(C). The environmental impact statement ("EIS") must address, inter alia, any adverse impact a proposed project would have on the environment and possible "alternatives to the proposed action." Id. For actions funded by federal grants to states, NEPA provides that the EIS may be prepared by state actors, with federal guidance, so long as the state actors have "statewide jurisdiction" and responsibility for the proposed action. 42 U.S.C. § 4332(D).

The EIS process has several steps. The responsible agency must first prepare a draft EIS and solicit comments on it. 40 C.F.R. § 1503.1. Those comments must then be "assess[ed] and consider[ed]" in drafting the final environmental impact statement ("FEIS"), which is published in the Federal Register. 40 C.F.R. § 1503.4, 1506.10(b). The FEIS is followed by issuance of a record of decision, which must: state the agency's decision; "[i]dentify all alternatives considered by the agency," specifically noting those that were environmentally preferable and the factors considered in rejecting them; and state whether the agency has adopted all proposed practicable means to minimize environmental impact. 40 C.F.R. § 1505.2. During the NEPA process, an agency cannot take any action which would "(1) Have an adverse environmental impact; or (2) Limit the choice of reasonable alternatives." 40 C.F.R. § 1506.1(a).

The major federal action in the instant case is the construction of the Connector, a bridge which, when complete, will span fewer than ten miles and link the South Carolina towns of Rimini (pop.286) and Lone Star (pop.601). J.A. at 61; Appellee's Br. at 7. The Connector is slated to cost between $100 and $150 million and will be fully funded through federal appropriations; no state money is scheduled to be used. J.A. at 94. Thus far, at least $16 million in federal funds has been appropriated for the project. J.A. at 95. In the ongoing case below, SCWF contends that the Defendants have failed to comply with the procedural requirements of NEPA and that therefore the Federal Highway Administration's (the "FHWA") approval of the project is invalid under NEPA.

The FHWA and the South Carolina Department of Transportation ("SCDOT") undertook the NEPA process following Congressional approval of the Connector, with the federal and state agencies sharing responsibility for the preparation of the EIS. J.A. at 47-49, 64-65; see also Environmental Impact Statement: Calhoun, Clarendon and Sumter Counties, SC, 65 Fed.Reg. 71,349, 71,349-50 (Nov. 30, 2000). The agencies promulgated a draft EIS, which was prepared by state and federal officials in conjunction with outside consultants, in October 2001. J.A. at 8-9, 95-96. Following the receipt of comments, the FEIS was issued in December 2002; and in June 2003, the FHWA issued a record of decision approving the FEIS. J.A. at 96. The FHWA published notice of its decision in the Federal Register on March 17, 2006, establishing a 180-day period to challenge the agency action. SCWF timely filed suit seeking a declaratory judgment on the ground that the FEIS and record of decision were improperly issued and seeking an injunction against further action pending compliance with NEPA. J.A. at 37.

The named defendants below were the SCDOT, the Executive Director of the SCDOT,2 the FHWA, and the Division Administrator of the FHWA. The SCDOT and the Director moved to dismiss, claiming that SCWF lacked standing to proceed, that SCWF's claims were not ripe, and that both the SCDOT and the Director were entitled to sovereign immunity from suit pursuant to the Eleventh Amendment. The district court found that SCWF had standing and that the claims were ripe. On the question of Eleventh Amendment immunity, the district court found that there had been no congressional abrogation of the state's immunity and so the SCDOT as a state agency was immune from suit. J.A. at 106-07; accord City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997).

The Director also claimed Eleventh Amendment immunity. However, the district court found that the Director was not entitled to immunity pursuant to Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). The Director now appeals this decision, challenging the district court's conclusions on the standing and immunity questions.

II.

As a court must satisfy itself of its jurisdiction, we turn first to the issue of standing. Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986).3 Standing has three essential elements: injury, causation, and redressability. Marshall v. Meadows, 105 F.3d 904, 906 (4th Cir.1997). To satisfy the constitutional standing requirement, a plaintiff must provide sufficient evidence to support the conclusion that: (1) the plaintiff suffered an injury in fact, which is an invasion of a legally protected interest that is concrete and particularized, and actual or imminent, not conjectural or hypothetical; (2) there is a causal connection between the injury and the conduct complained of; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision of the court. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (citations and internal quotation marks omitted); White Tail Park, Inc. v. Stroube, 413 F.3d 451, 458 (4th Cir.2005). "At the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice [to satisfy these elements], for on a motion to dismiss [the court] presume[s] that general allegations embrace those specific facts that are necessary to support the claim." Lujan, 504 U.S. at 561, 112 S.Ct. 2130 (citations and internal quotation marks omitted).

We conclude SCWF alleged facts sufficient to survive a motion to dismiss for lack of standing. SCWF asserted that construction of the Connector would harm its members' ability to use and enjoy the relevant area for a variety of educational, scientific, recreational, and aesthetic purposes, and that one or more of its members currently use the land for such purposes. Sierra Club v. Morton, 405 U.S. 727, 738-39, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972) (an organization may sue on behalf of its members); id. at 738, 92 S.Ct. 1361 (holding that harms to "`aesthetic, conservational, and recreational' as well as economic values" are cognizable injuries for the purposes of demonstrating standing (quoting Ass'n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 154, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970))); see also Lujan, 504 U.S. at 562-63, 112 S.Ct. 2130. In addition, SCWF traces the injury to the Connector that the Director and federal Defendants planned and developed and that they intend to finance and construct.

Lastly, SCWF has shown that enjoining the Director from proceeding with the construction of the Connector, and requiring the reexamination of the proposal in accordance with NEPA, would redress its procedural and substantive concerns. The redressability of an injury to a procedural right turns on the potential impact of the court's action on the injury-causing party. Massachusetts v. EPA, 549 U.S. 497, 127 S.Ct. 1438, 1453, 167 L.Ed.2d 248 (2007) (requiring that a litigant seeking to vindicate a procedural right show "some possibility that the requested relief will prompt the injury-causing party to reconsider" the decision). Circuit precedent establishes that there is standing to assert procedural allegations under NEPA against state defendants in order to preserve the environmental status quo pending federal review. See Ely v. Velde ("Ely II"), 497 F.2d 252, 257 (4th Cir.1974) (finding that if a state were to undertake construction on a project subject to NEPA requirements absent procedural compliance with the Act, the federal court should enjoin such action); see also Sierra Club v. Hodel, 544 F.2d 1036, 1037 (9th Cir.1976) (analyzing a...

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