N.C. Alliance for Transp. Reform v. D.O.T.
| Decision Date | 04 June 2001 |
| Docket Number | No. 1:99CV00134.,1:99CV00134. |
| Citation | 151 F.Supp.2d 661 |
| Court | U.S. District Court — Middle District of North Carolina |
| Parties | NORTH CAROLINA ALLIANCE FOR TRANSPORTATION REFORM, INC.; and Friends of Forsyth County, an unincorporated association; Plaintiffs, v. UNITED STATES DEPARTMENT OF TRANSPORTATION; Rodney E. Slater, Secretary of United States Department of Transportation; Federal Highway Administration; Kenneth R. Wykle, Administrator, Federal Highway Administration; Nicholas L. Graf, Division Administrator, Federal Highway Administration; North Carolina Department of Transportation; and E. Norris Tolson, Secretary, North Carolina Department of Transportation; Defendants. |
Marsh Smith, Cunningham, Dedmond, Petersen & Smith, Southern Pines, NC, Bruce J. Terris, Sarah A. Adams, Demian A. Schane, Terris, Pravlik & Millian, LLP, Washington, DC, for Plaintiffs.
Gill P. Beck, Office of U.S. Attorney, Greensboro, NC, for Defendants.
Elizabeth Leonard McKay, N.C. Department of Justice, Attorney General's Office, Raleigh, NC, for North Carolina Dept. of Transp. and E. Norris Tolson.
This action began on February 18, 1999, when Plaintiffs, North Carolina Alliance for Transportation Reform, Inc. and Friends of Forsyth County, filed a complaint against the United States Department of Transportation ("USDOT"); Rodney E. Slater, the Secretary of USDOT; the Federal Highway Administration ("FHWA"); Kenneth R. Wykle, the Administrator of FHWA; and Nicholas L. Graf, the Division Administrator of FHWA (collectively "Federal Defendants"). Also named in the complaint were the North Carolina Department of Transportation ("NCDOT") and E. Norris Tolson, the Secretary of NCDOT (collectively "State Defendants" and collectively with Federal Defendants "Defendants").1 In the complaint, Plaintiffs alleged that the construction of the Western Section of the Winston-Salem Northern Beltway (the "Western Section") violated the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq. and the North Carolina Environmental Policy Act ("NCEPA"), N.C. Gen.Stat. § 113A-1 et seq. On June 21, 1999, the parties filed a joint motion for an order of dismissal. The court entered an order of dismissal on June 29, 1999. Now pending before the court is Plaintiffs' motion for an award of attorney's fees and expenses. For the following reasons, the court will grant Plaintiffs' motion.
In 1989, the North Carolina General Assembly passed the North Carolina Highway Trust Fund (the "Trust Fund").2 The Trust Fund designated seven urban areas around which highway loops would be constructed. Winston-Salem, North Carolina was one of the urban areas designated by the Trust Fund. The construction of the Winston-Salem Northern Beltway was the subject of the litigation giving rise to this claim for attorney's fees and expenses.
On June 24, 1992, NCDOT published a draft environmental impact statement ("DEIS") for the Western Section.3 On March 29, 1996, NCDOT published the final environmental impact statement ("FEIS"). On May 6, 1996, the Raleigh Division of FHWA submitted the record of decision ("ROD")4 to FHWA's Regional Administrator for approval of the project. One day later, on May 7, 1996, FHWA's Regional Administrator issued the ROD. Issuance of the ROD represented final agency action on the Western Section project and completed the NEPA process. By issuing the ROD, Federal Defendants effectively approved the project and accepted the environmental impact statement prepared for the project. The day after issuance of the ROD, May 8, 1996, FHWA announced that the Transportation Improvement Program for the Winston-Salem metropolitan area ("Forsyth County's TIP") no longer conformed with the requirements of the Clean Air Act. As a result, federal agencies could neither approve nor fund any Forsyth County transportation projects that had not already completed the NEPA process. Under a regulatory provision in place at the time, however, funding for the Western Section was permitted to continue because the NEPA process had been completed (the ROD had been issued) before Forsyth County's TIP fell out of conformity with the Clean Air Act.5 On October 2, 1996, Forsyth County's TIP was found again to conform with the Clean Air Act.
On February 18, 1999, Plaintiffs filed a complaint alleging that the final environmental impact statement prepared for the Western Section was inadequate and violated NEPA and NCEPA. In their complaint, Plaintiffs sought: 1) a declaratory judgment that Defendants violated NEPA and NCEPA; 2) a mandatory injunction directing Defendants to comply with the provisions of NEPA and NCEPA; 3) an order vacating the May 7, 1996, record of decision which approved the final environmental impact statement and construction of the proposed beltway; 4) and an injunction prohibiting defendants from proceeding with site preparation, construction, the issuance of revenue bonds, right of way acquisitions, or any other irrevocable actions related to the building of the proposed Beltway until the violations of NEPA and NCEPA had been corrected. (See Pls'. Compl. [Doc. # 1] at ¶ 4).
On March 2, 1999, the Court of Appeals for the District of Columbia Circuit decided Environmental Def. Fund v. EPA, 167 F.3d 641 (D.C.Cir.1999) [hereinafter EDF].6 In that case, the court struck down certain EPA regulations. Among the regulations struck down was 40 C.F.R. § 93.102(c), known as the "grandfather" rule, which allowed projects to receive federal funding in the absence of a currently conforming TIP as long as the project was part of a conforming plan at the time of its approval. See EDF, 167 F.3d at 649. The EDF Court held that the grandfather rule violated the Clean Air Act and that only projects located in an area with a currently conforming TIP were eligible to receive federal funds. Id. On April 4, 1999, the TIP for Forsyth County again lapsed into non-conformity with the Clean Air Act. Due to the ruling in EDF, Forsyth County's lapse of conformity meant that the Western Section could not receive any federal funds until the TIP was again brought into conformity with the Clean Air Act.
On April 15, 1999, Nicholas Graf ("Graf"), the Administrator of the North Carolina Division of FHWA, notified NCDOT that FHWA had decided to "reopen the NEPA process to consider whether new or supplemental analysis and documentation are warranted on the [Western Section] project." (Fed. Defs.' Mem. in Supp. of Mot. to Dismiss [Doc. # 10], Ex. A-1). This decision to reopen the NEPA process was made "because of" the lawsuit instituted by Plaintiffs, the EDF decision, and Forsyth County's April 4, 1999, lapse into non-conformity with the Clean Air Act. Id. By reopening the NEPA process FHWA effectively withdrew the previously issued ROD.
With the reopening of the NEPA process, Plaintiffs' action to enjoin Defendants became moot. On June 21, 1999, the parties filed a joint motion for an order of dismissal. The court entered an order of dismissal on June 29, 1999. Thereafter, on August 27, 1999, Plaintiffs filed this motion for an award of attorney's fees and expenses. In a previous opinion related to Plaintiffs' motion for attorney's fees and expenses, this court concluded that the motion is properly before the court for consideration. See North Carolina Alliance for Transp. Reform, Inc. v. United States Dep't of Transp., 104 F.Supp.2d 599 (M.D.N.C.2000). Plaintiffs seek attorney's fees and expenses from Federal Defendants under Sections 2412(b) and 2412(d) of the Equal Access to Justice Act ("EAJA")7 and from State Defendants under Section 6-19.1 of the North Carolina General Statutes ("N.C.G.S. § 6-19.1").
Each of the statutes under which Plaintiffs seek attorney's fees and expenses provides that such an award is available only if Plaintiffs are found to be "prevailing" See 28 U.S.C. § 2412(b), (d); N.C. Gen.Stat. § 6-19.1. Plaintiffs satisfy this requirement. The party seeking attorney's fees bears the burden of proving that it was the prevailing party. See Reich v. King Plumbing & Heating Contractor, Inc., 98 F.3d 147, 150 (4th Cir. 1996); see also House v. Hillhaven, Inc., 105 N.C.App. 191, 195-96, 412 S.E.2d 893, 896 (1992). In their complaint filed February 18, 1999, Plaintiffs sought: (1) a declaratory judgment that Defendants violated NEPA and NCEPA; (2) a mandatory injunction directing Defendants to comply with the provisions of NEPA and NCEPA; (3) an order vacating the May 7, 1996, record of decision which approved the final environmental impact statement and construction of the proposed beltway; and (4) an injunction prohibiting Defendants from proceeding with site preparation, construction, the issuance of revenue bonds, right of way acquisitions, or any other irrevocable actions related to the building of the proposed Western Section until the violations of NEPA and NCEPA had been corrected. .
On April 15, 1999, the FHWA sent a letter to NCDOT which stated, in relevant part:
Dear Secretary Tolson:
As you know, the recent lawsuit filed in the United States District Court for the Middle District of North Carolina alleged deficiencies in the Final Environmental Impact Statement (FEIS) for the Western Section of the Winston-Salem Bypass....
The Winston-Salem Bypass project was included in the Long Range Transportation Plan (LRTP) and Transportation Improvement Program (TIP) for the Winston-Salem metropolitan area. That plan and program previously demonstrated conformity under the Clean Air Act. However, on April 4, 1999, the Winston-Salem metropolitan area lapsed conformity and does not currently have a conforming LRTP and TIP.
... In accordance with [Environmental Def. Fund v. EPA, 167 F.3d 641 (...
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