Catawba Riverkeeper Found. v. N.C. Dep't of Transp.

• Decision Date: 13 December 2016
• Docket Number: No. 15-2285,15-2285
• Parties: Catawba Riverkeeper Foundation; Clean Air Carolina, Plaintiffs-Appellees, v. North Carolina Department of Transportation; Nicholas J. Tennyson, in his official capacity as Secretary of NCDOT, Defendants-Appellants, and Federal Highway Administration; John F. Sullivan, in his official capacity as Division Administrator of FHWA, Defendants.
• Court: U.S. Court of Appeals — Fourth Circuit

843 F.3d 583

Catawba Riverkeeper Foundation; Clean Air Carolina, Plaintiffs-Appellees,

v. North Carolina Department of Transportation; Nicholas J. Tennyson, in his official capacity as Secretary of NCDOT, Defendants-Appellants,andFederal Highway Administration; John F. Sullivan, in his official capacity as Division Administrator of FHWA, Defendants.

No. 15-2285

United States Court of Appeals, Fourth Circuit.

Argued: September 21, 2016

Decided: December 13, 2016

ARGUED: Scott Thomas Slusser, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellants. Kimberley Hunter, SOUTHERN ENVIRONMENTAL LAW CENTER, Chapel Hill, North Carolina, for Appellees. ON BRIEF: Roy Cooper, Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellants. Ramona H. McGee, SOUTHERN ENVIRONMENTAL LAW CENTER, Chapel Hill, North Carolina, for Appellees.

Before DUNCAN, KEENAN, and DIAZ, Circuit Judges.

Vacated and remanded with instructions by published opinion. Judge Diaz wrote the opinion, in which Judge Duncan and Judge Keenan joined.

DIAZ, Circuit Judge:

This appeal involves the proposed construction of the Gaston East-West Connector,¹ a 22-mile toll road in North Carolina spanning from southeast Gaston County to west Mecklenburg County with new crossings over the South Fork and Catawba Rivers. The Catawba Riverkeeper Foundation and Clean Air Carolina (collectively, the "Conservation Groups") brought suit against the North Carolina Department of Transportation ("NCDOT"), the Federal Highway Administration, and officials representing those agencies, challenging the environmental analysis conducted for the Connector. The district court granted the Conservation Groups' motion for summary judgment.

Before the district court ruled, the North Carolina General Assembly stripped the Connector of its funding and repealed the statute that expressly authorized its construction. And after the district court entered judgment, state and local authorities removed the Connector from the various planning models for such projects. At oral argument, NCDOT represented that the Connector is no longer viable. In light of these developments, we conclude that this appeal is moot and accordingly vacate the district court's judgment.

I.

A.

Local planners in Gaston County, North Carolina first considered the need to construct a bypass to improve east-west mobility between Gaston County and Mecklenburg County in the late 1980s. NCDOT began studying the project in 2001, meeting with other agencies and local authorities to assess the benefits of the project relative to alternatives such as mass transit or improvements to existing roadways. In coordination with these officials, NCDOT determined that building a "new location freeway" more effectively addressed the goals of (1) "improv[ing] east-west transportation mobility ... between Gastonia and the Charlotte metropolitan area" and (2) "establish[ing] direct access between the rapidly growing area of southeast Gaston County and west Mecklenburg County." J.A. 723.

As required by the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321, et seq., NCDOT and the Federal Highway Administration (collectively, the "Agencies") began assessing the environmental impact of the project.² In the meantime, the North Carolina General Assembly designated the Connector a candidate project subject to the control of the North Carolina Turnpike Authority. N.C. Gen. Stat. § 136–89.183(a)(2)(b) (2006) (repealed by 2013 N.C. Sess. Laws § 5.1). The General Assembly also gave the Turnpike Authority conditional power to propose additional projects not expressly authorized in the statute, provided they were "approved by the General Assembly prior to construction" and "shown in the current State Transportation Improvement Plan." Id.§ 136–89.183(a)(2) (2006).

In April 2009, the Agencies published for public review and comment a draft Environmental Impact Statement for the Connector. The draft statement considered twelve alternative "new location" controlled-access toll roads, ranging from 21.4 to 23.7 miles in length, assessed each alternative's capacity to meet the project's needs, and compared each with a "no-build" baseline alternative. The Agencies also forecasted traffic demand and distribution in the geographic area through 2030, creating both a "build" forecast depicting how a network of transportation facilities would operate with projected future traffic volumes and a "no build" baseline forecast.

To develop the traffic forecasts, the Agencies relied on data derived from socioeconomic forecasts prepared by area planning organizations that assumed construction of the Connector. The Agencies superimposed each alternative onto this set of socioeconomic projections and eliminated alternatives from further study on this basis. The draft Environmental Impact Statement also contained a qualitative Indirect and Cumulative Effects ("ICE") report, describing the Connector's estimated effects on growth and land use, wildlife habitat, and water resources in the geographic area.

In response to requests from environmental advocates and other agencies, the Agencies also published a quantitative ICE report that analyzed future land-use change. They first created a "build" forecast and then employed a "gravity model" to reallocate the growth effects to create the "no build" forecast baseline.³ The Agencies determined that construction of the Connector would result in 3,700 additional households and 300 fewer jobs in the study area when compared to the "no build" forecast.

The Agencies subsequently published a final Environmental Impact Statement, addressing public and other agency comments on the earlier draft statement and identifying the Connector as the preferred alternative. They estimated the Connector's cost to be about $943 million, to be paid for by toll revenue bonds, an annual $35 million appropriation of "gap" funding from the North Carolina General Assembly, and other funding sources. In February 2012, the Federal Highway Administration issued a Record of Decision, identifying the Connector as the "environmentally preferable alternative ... because it represents the best overall balanced minimization of all impacts analyzed." J.A. 3747.

B.

The Conservation Groups participated in the NEPA process for the Connector, submitting comments and attending public meetings to voice their concerns about the integrity of the environmental analysis conducted by the Agencies. Following our decision in North Carolina Wildlife Federation v. North Carolina Department of Transportation, 677 F.3d 596 (4th Cir. 2012),⁴ the Groups urged the Federal Highway Administration to rescind the Connector's Record of Decision and prepare a supplemental Environmental Impact Statement. The Federal Highway Administration declined to do so.

The Conservation Groups thereafter filed suit in the Western District of North Carolina pursuant to the Administrative Procedure Act, 5 U.S.C. § 701 et seq. ("APA"), seeking: (1) a declaratory judgment that the Agencies violated NEPA by conducting a deficient environmental analysis, (2) vacatur of the Record of Decision, and (3) injunctive relief. After the parties filed cross-motions for summary judgment, the court transferred the case to the Eastern District of North Carolina.

While the motions were pending, the North Carolina General Assembly passed legislation requiring a data-driven prioritization process to score and rank proposed transportation projects based on a number of factors, including cost and congestion. N.C. Gen. Stat. § 136-189.11. The Connector received a low score under this new funding formula, ranking below 1,200th place. The General Assembly subsequently repealed that portion of the statute giving the Turnpike Authority express power to build the Connector, 2013 N.C. Sess. Laws § 5.1, and rescinded the Connector's earmarked $35 million annual funding. 2013 N.C. Sess. Laws § 4.8 (striking funding for the "Garden Parkway," previously codified at N.C. Gen. Stat. § 136-176(b2) ).

Given these developments, the district court directed the parties to brief whether the court retained subject matter jurisdiction and whether the Turnpike Authority still had the power to build the Connector. The parties urged the court to resolve the pending motions for summary judgment, arguing that the Turnpike Authority could still build the Connector as an unspecified project because it remained on the list of approved projects at both the state and local levels.

The court proceeded to the merits and granted the Conservation Groups' motion for summary judgment, holding that the alternatives analysis underlying the Connector "violated NEPA and the APA by using the same set of socioeconomic data that assumed construction of the [Connector] to assess the environmental impacts of the Build and No Build alternatives." J.A. 324. The district court also agreed with the Conservation Groups that the Agencies failed to adequately assess and disclose the Connector's environmental impacts, reasoning that:

[D]efendants' fundamental assumption that the [Connector] would have no effect on overall growth in the Metrolina region, unsupported by any evidence showing complete saturation of the region, and their use of the gravity model to reallocate assumed growth in the No Build condition constitute clear error and violates NEPA and the APA.

J.A. 325. The court consequently vacated the Record of Decision for the Connector.⁵

Following the district court's ruling, the last domino fell for the Connector when it was removed from local and state transportation plans,⁶ which in turn meant that it was no longer eligible for federal funding. In short, the Connector no longer has the statutory authority or funding to proceed.

II.

NCDOT appeals the merits of the district court's decision. But preliminarily, it also contends that the case is now moot, and therefore seeks vacatur of the district court's order granting summary...