Clean Air Carolina v. N.C. Dep't of Transp., 5:14-CV-863-D

• Decision Date: 10 September 2015
• Docket Number: No. 5:14-CV-863-D,5:14-CV-863-D
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: CLEAN AIR CAROLINA, NORTH CAROLINA WILDLIFE FEDERATION, and YADKIN RIVERKEEPER, Plaintiffs, v. NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, et al., Defendants.

CLEAN AIR CAROLINA, NORTH CAROLINA WILDLIFE FEDERATION,and YADKIN RIVERKEEPER, Plaintiffs, v. NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, et al., Defendants.

No. 5:14-CV-863-D

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA WESTERN DIVISION

September 10, 2015

ORDER

On June 23, 2014, Clean Air Carolina, the North Carolina Wildlife Federation, and Yadkin Riverkeeper ("plaintiffs") filed a complaint in the United States District Court for the Western District of North Carolina against the North Carolina Department of Transportation ("NCDOT") and Anthony Tata, in his official capacity as Secretary of NCDOT ("state defendants"), and the Federal Highway Administration ("FHWA") and John F. Sullivan, in his official capacity as Division Administrator of FHWA ("federal defendants"). Compl. [D.E. 1] ¶¶ 34-37.¹ Plaintiffs allege that defendants violated the National Environmental Policy Act ("NEPA"), codified at 42 U.S.C. §§ 4321 et seq., and the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-06, in connection with their decision to construct the Monroe Bypass Toll Highway ("Monroe Bypass") in Union and Mecklenburg Counties, North Carolina. Compl. ¶ 1.

On December 3, 2014, the United States District Court for the Western District of North Carolina transferred the case to this court [D.E. 29]. On January 23, 2015, plaintiffs moved for summary judgment [D.E. 40] and filed an accompanying memorandum [D.E. 40-1]. On February 26, 2015, federal defendants and state defendants each moved for summary judgment and filed accompanying memoranda in support of their motions and in opposition to plaintiffs' motion for summary judgment [D.E. 41, 41-1, 43-44]. On March 31, 2015, plaintiffs replied [D.E. 45]. On May 1, 2015, federal defendants and state defendants eachreplied [D.E. 52-53]. On May 12, 2015, plaintiffs filed a surreply [D.E. 55].

On May 14, 2015, plaintiffs moved for a temporary restraining order and preliminary injunction [D.E. 56]. On June 5, 2015, federal defendants and state defendants each responded in opposition [D.E. 61-62]. On June 11, 2015, plaintiffs replied [D.E. 63]. On June 16, 2015, defendants filed a surreply [D.E. 66]. On August 25, 2015, plaintiff moved for a hearing [D.E. 73].

As explained below, the court grants defendants' motions for summary judgment, denies plaintiffs' motion for summary judgment, and denies plaintiffs' motion for a temporary restraining order and preliminary injunction and motion for a hearing.

I.

This case concerns the planned construction of the Monroe Bypass, a 20-mile, four- to six-lane toll highway project in western North Carolina. Compl. ¶ 1; ARII376498.² The Monroe Bypass project originally began as two separate projects, the Monroe Bypass and the Monroe Connector.ARII376487. NCDOT completed its initial planning phase for these projects in 1996. Id. In 2002, the North Carolina General Assembly created the North Carolina Turnpike Authority ("NCTA"). Id. In February 2005, at the request of the Mecklenburg-Union Metropolitan Planning Organization ("MUMPO"), NCTA adopted the Monroe Connector as a candidate toll facility. ARII376488. On September 20, 2006, MUMPO adopted a resolution recommending that the Monroe Bypass and Monroe Connector projects be combined. Id. On January 19, 2007, FHWA issued a notice of intent to prepare a Draft Environmental Impact Statement ("EIS") for the combined project. Id.

The Draft EIS was signed on March 31, 2009. Id. The Final EIS was published in May 2010. ARII376489; AR26203-26421. The Record of Decision ("ROD") was published in August 2010. ARII376489; AR29614-29714. On November 2, 2010, plaintiffs filed suit in this court seeking to vacate the ROD. N.C. Wildlife Fed'n v. N.C. Dep't of Transp., No. 5:10-CV-476-D, 2011 WL 5042075, at *1 (E.D.N.C. May 3, 2012) (unpublished), vacated and remanded, 677 F.3d 596 (4th Cir. 2012). On October 24, 2011, this court concluded that defendants had complied with NEPA and granted defendants' motion for summary judgment. Id. On May 3, 2012, the Fourth Circuit vacated this court's judgment and remanded for further proceedings. N.C. Wildlife Fed'n, 677 F.3d at 605. In so doing, the Fourth Circuit held that defendants violated NEPA by failing to disclose that data upon which they relied assumed construction of the Monroe Bypass and by "falsely respond[ing] to public concerns." Id. at 605.

On July 3, 2012, FHWA rescinded the ROD for the Monroe Bypass project. See ARII376490; ARII96984. NCDOT reinitiated the NEPA process. See ARII97440-43 (minutes from July 18, 2012 meeting discussing the Fourth Circuit's decision in North Carolina Wildlife Federation and next steps); ARII116553 (May 3, 2012 NCDOT news release expressing the department's intention to promptly develop a new plan for the project).

On November 8, 2013, defendants published the Draft Supplement Final EIS ("DSFEIS"). ARII258107-308. Defendants "re-evaluated the primary needs for the proposed action and determined that those needs have not changed since the Draft EIS and Final EIS." ARII258138. The DSFEIS noted that traffic congestion had improved along the US 74 corridor but asserted that congestion problems remained. See ARII258140 ("[A]verage peak period travel speed through the corridor ranges from 37 mph to 41 mph in the westbound direction, and 42 mph to 45 mph in the eastbound direction. These average speeds compared to the corridor weighted average posted speed limit of 49 mph show that congestion exists along US 74 today . . . ."). In its alternatives analysis, the DSFEIS referenced and relied on the screening decisions made in the original DEIS and FEIS. ARII258156-64. After noting that some improvements had been realized because of Transportation System Management ("TSM") improvements, the DSFEIS stated that "TSM improvements, while providing some short-term benefit, would continue to not meet the purpose and need for the Monroe Connector/Bypass project." ARII258166; see ARII258180 ("The NCDOT examined 'minor' improvements and evaluated and re-examined others (i.e. improve existing US 74 alternatives and TSM alternatives) with a 'hard look' and subsequently determined that they were not reasonable and did not require more detailed study."). Defendants determined, "based on a review of new information and analyses and consideration of public and agency comments," that "there are no conditions that warrant re-considering new alternatives or updating previous screening decisions." ARII258181; see ARII258157 (describing the three "evaluation criteria" that were "applied to the analysis of each alternative concept" as the alternative's ability to (1) "enhance mobility and increase capacity in the US 74 corridor[,]" (2) "allow for high-speed regional travel[,]" and (3) "maintain access to properties along existing US 74"); ARII106492 (defining high-speed travel as "50 mph or greater average travel speed"). Defendants concluded that the Monroe Bypass "remain[ed] the bestoption due to its ability to meet all elements of the purpose and need and based on results of comparative analysis." ARII258181.

Defendants also reevaluated their use of the Metrolina Regional Travel Demand Model ("MRM") and MUMPO's underlying socioeconomic data in an updated Indirect and Cumulative Effects ("ICE") quantitative analysis. See ARII258547-50. The original MUMPO projections relied on three parts: a top-down approach, a bottom-up approach, and input from an advisory group. ARII258549. The top-down approach, conducted by Dr. Thomas Hammer, "project[ed] future growth at the regional level and then allocate[d] the regional growth to the county level." ARII258549-50. Dr. Hammer's process assumed the construction of two roadway projects, including the Garden Parkway, but did not assume construction of the Monroe Bypass. ARII258552; ARII258607-09. In the bottom-up approach, Paul Smith used eight land development factors, including travel time to employment, to allocate "the county-level growth to the TAZ [Traffic Analysis Zone] level within each county." ARII258550: see ARII258610. The original travel-time-to-employment factor used a roadway network that included the Monroe Bypass. ARII258551; ARII258611. In North Carolina Wildlife Federation, the Fourth Circuit noted that one of the inputs into the MRM, travel time to employment, "actually assumed construction of the Monroe Connector." 677 F.3d at 599-600 (emphasis omitted). Noting that "courts not infrequently find NEPA violations when an agency miscalculates the 'no build' baseline or when the baseline assumes the existence of a proposed project," the court held that defendants' failure to disclose this assumption violated NEPA. Id. at 603, 605.

In their latest analysis, defendants retained Paul Smith to conduct the bottom-up analysis. See ARII258551. In this new analysis, Smith used a roadway network that did not include the Monroe Bypass to generate new travel-time-to-employment data. ARII258613. Smith concludedthat the removal of the Monroe Bypass created "little to no change in travel time to employment centers" in over ninety percent of the TAZs in the MUMPO analysis area. Id. Smith then input the revised travel-time-to-employment data into the bottom-up analysis and found that "the land use projections were identical to those produced in his original report." ARI258614. Defendants thus concluded that "the Bottom-Up portion of the 2005 Projections was insensitive to the presence or absence of the proposed project." ARII258614.

Because the top-down analysis did not assume construction of the Monroe Bypass and the new bottom-up analysis was insensitive to the Monroe Bypass's presence, defendants used MUMPO's predictions to create the No Build scenario. See ARII258626. To create a more accurate Build scenario that accounted for increased growth due to the project, defendants also estimated the project-induced growth. See ARII258626; ARII258629; ARII258553 ("We estimated the potential induced...