North Carolina Alliance For Transp. Reform Inc v. United States Dep't Of Transp.

• Decision Date: 19 May 2010
• Docket Number: No. 1:99cv134,1:08cv570.,1:99cv134
• Citation: 713 F.Supp.2d 491
• Parties: NORTH CAROLINA ALLIANCE FOR TRANSPORTATION REFORM, INC. and Friends of Forsyth, Plaintiffs,v.UNITED STATES DEPARTMENT OF TRANSPORTATION; Ray LaHood, Secretary, United States Department of Transportation; Federal Highway Administration; Victor Mendez, Administrator, Federal Highway Administration; John F. Sullivan, III, Division Administrator, Federal Highway Administration; North Carolina Department of Transportation; Eugene A. Conti, Jr., Secretary, North Carolina Department of Transportation, Defendants.North Carolina Alliance for Transportation Reform, Inc. and Friends of Forsyth, Plaintiffs,v.United States Department of Transportation; Ray LaHood, Secretary, United States Department of Transportation; Federal Highway Administration; Victor Mendez, Administrator, Federal Highway Administration; John F. Sullivan, III, Division Administrator, Federal Highway Administration; North Carolina Department of Transportation; Eugene A. Conti, Jr., Secretary, North Carolina Department of Transportation, Defendants.
• Court: U.S. District Court — Middle District of North Carolina

713 F.Supp.2d 491

NORTH CAROLINA ALLIANCE FOR TRANSPORTATION REFORM, INC. and Friends of Forsyth, Plaintiffs,

v.UNITED STATES DEPARTMENT OF TRANSPORTATION; Ray LaHood, Secretary, United States Department of Transportation; Federal Highway Administration; Victor Mendez, Administrator, Federal Highway Administration; John F. Sullivan, III, Division Administrator, Federal Highway Administration; North Carolina Department of Transportation; Eugene A. Conti, Jr., Secretary, North Carolina Department of Transportation, Defendants.

North Carolina Alliance for Transportation Reform, Inc. and Friends of Forsyth, Plaintiffs,

v.United States Department of Transportation; Ray LaHood, Secretary, United States Department of Transportation; Federal Highway Administration; Victor Mendez, Administrator, Federal Highway Administration; John F. Sullivan, III, Division Administrator, Federal Highway Administration; North Carolina Department of Transportation; Eugene A. Conti, Jr., Secretary, North Carolina Department of Transportation, Defendants.

Nos. 1:99cv134, 1:08cv570.

United States District Court,

M.D. North Carolina.

May 19, 2010.

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Marsh Smith, Law Office of Marsh Smith, Southern Pines, NC, for Plaintiff.

Beverly F. Li, U.S. Dept. of Justice, Washington, DC, Gill P. Beck, Office of U.S. Attorney, Greensboro, NC, Donald T. O'Toole, Scott A. Conklin, North Carolina Department of Justice, Scott T. Slusser, N.C. Attorney General's Office, Raleigh, NC, for Defendants.

MEMORANDUM OPINION AND ORDER

THOMAS D. SCHROEDER, District Judge.

These two related cases involve challenges to the construction of a federal highway project around the city of Winston-Salem, North Carolina.

In case 1:99cv134, this court entered an Order of Dismissal by consent of all parties on June 29, 1999 (“Order of Dismissal”), which prohibited further work on the highway project until certain enumerated actions occurred. (Doc. 21.) ¹ Defendants United States Department of Transportation (“USDOT”), Ray LaHood (Secretary, USDOT), Federal Highway Administration (“FHWA”), Victor Mendez (Administrator, FHWA), and John F. Sullivan, III, (Division Administrator, FHWA) (collectively “Federal Defendants”) and North Carolina Department of Transportation (“NCDOT”) and Eugene A. Conti, Jr., (Secretary, NCDOT) (collectively “State Defendants” and collectively with Federal Defendants “Defendants”) contend that they have satisfied the terms of the Order of Dismissal and thus move jointly to dissolve it.² (Doc. 122 at 2.) Plaintiffs North Carolina Alliance for Transportation Reform, Inc. (“Alliance”), a not-for-profit organization that seeks to promote the most cost-efficient transportation system in the state while preserving cultural, historical, environmental and economic quality of life, and Friends of Forsyth, a not-for-profit unincorporated association of landowners within the path of the proposed highway, whose members are also members of the Alliance (collectively with Alliance “Plaintiffs”), contest that compliance has occurred and oppose the motion. (Doc. 126.) For the reasons that follow, the court will grant Defendants' joint motion.

In case 1:08cv570, Plaintiffs again challenge further construction on the highway project. Plaintiffs now seek summary judgment principally on the grounds that the required environmental analysis fails to (1) evaluate the effect the project would have on global climate change through the production of greenhouse gases and (2) account for the impact of two future connecting road construction projects not contained in the current project. (Doc. 21.) Plaintiffs allege that these failures constitute violations of the National Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. § 4321 et seq., and the North Carolina Environmental Policy Act (“NCEPA”), N.C. Gen.Stat. § 113A-1 et seq. Defendants oppose Plaintiffs' motion and seek summary judgment themselves on the grounds that the alleged omissions do not violate federal law. (Docs. 27, 30.) Federal Defendants also move to strike certain documents that Plaintiffs submitted with their motion for summary judgment (Doc. 33), which Plaintiffs naturally oppose (Doc. 35).³ For the reasons set forth herein, the motion to strike will be denied, Plaintiffs' motion for summary judgment will be denied, and Defendants' motions for summary judgment will be granted.

I. BACKGROUNDA. Case 1:99cv134

In 1989, the North Carolina General Assembly created the North Carolina Highway Trust Fund, which designated seven urban areas, including Winston-Salem, around which highway loops would be constructed. N.C. Gen.Stat. § 136-175 (1999). Created from that legislation were federally-funded Transportation Improvement Program (“TIP”) Projects R-2247, U-2579, and U-2579A which, taken together, span 34.2 miles and are commonly known as the Winston-Salem Northern Beltway (“Northern Beltway”). Project R-2247 encompasses the western section of the Northern Beltway from U.S. 158 north to U.S. 52 in western Forsyth County, North Carolina (“Western Section”). Projects U-2579 and U-2579A comprise the eastern section of the Northern Beltway from U.S. 52 to U.S. 311 in eastern Forsyth County (“Eastern Section”).

On June 24, 1992, NCDOT issued a Draft Environmental Impact Statement (“DEIS”) ⁴ for the Western Section. 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”) ⁵ for the Western Section to the FHWA Regional Administrator, who approved it the next day. Issuance of the ROD represented the final agency action on the Western Section and completed the NEPA process. By issuing the ROD, the FHWA effectively approved the project and accepted the FEIS.

On February 18, 1999, Plaintiffs filed case 1:99cv134 in this court alleging that the Western Section FEIS violated NEPA and NCEPA and sought, among other remedies, an injunction against any further action on the project. Approximately two weeks later, the Court of Appeals for the District of Columbia Circuit decided Environmental Defense Fund v. EPA, 167 F.3d 641 (D.C.Cir.1999). That decision struck down certain EPA regulations that permitted the Northern Beltway to remain eligible for funding despite the fact that the Forsyth County TIP had fallen out of compliance with the Clean Air Act, 42 U.S.C. § 7401 et seq. Because the D.C. Circuit has exclusive jurisdiction to review challenges to nationally applicable regulations issued under the Clean Air Act, the decision required that the NEPA process be reopened and thus effectively mooted Plaintiffs' challenge in case 1:99cv134. Accordingly, on April 15, 1999, the Division Administrator for FHWA notified NCDOT that FHWA decided to reopen the NEPA process. By doing so, FHWA effectively withdrew the previously issued ROD. N.C. Alliance for Transp. Reform, Inc. v. U.S. Dep't of Transp., 151 F.Supp.2d 661, 671 (M.D.N.C.2001).

With the reopening of the NEPA process, Plaintiffs' action to enjoin Defendants became moot. Consequently, on June 21, 1999, the parties filed a joint motion for an order of dismissal. This court granted the joint motion on June 29, 1999, dismissing the Complaint without prejudice and finding that the final agency action had been superseded because the environmental analyses would have to be redone. The Order of Dismissal also provided the following:

3. Federal defendants shall not grant any further approvals, enter into any contracts, or provide any funds relating to the acquisition of property or construction of the Winston-Salem Beltway (hereinafter “Bypass Project”) until the new environmental analysis and documentation process has been completed, a conforming Long Range Transportation Plan and Transportation Improvement Program for the Winston-Salem metropolitan area have been approved, and federal defendants issue a new Record of Decision pursuant to applicable federal law for the Bypass Project;

4. State defendants shall not take any irrevocable actions relating to construction, right-of-way acquisitions, or negotiations for right-of-way acquisitions, in furtherance of the Bypass Project until the conditions set forth in paragraph 3 above have been met....

N.C. Alliance for Transp. Reform v. U.S. Dep't of Transp., No. 1:99 cv134 (M.D.N.C. June 29, 1999) (Order of Dismissal).

Subsequently, this court awarded Plaintiffs attorneys' fees as prevailing parties, finding that Defendants' failure to analyze the Eastern Section and Western Section of the Northern Beltway together in one environmental impact statement violated NEPA. N.C. Alliance, 151 F.Supp.2d at 676-78. This court also found that Federal Defendants acted in bad faith by approving the ROD after only a one-day review.⁶ Id. at 676.

B. Case 1:08cv570

Defendants returned to the drawing board, and in March 2004 they published a revised notice of intent to prepare an environmental impact statement for the combined Western Section and Eastern Section of the Northern Beltway and solicited public comments. A number of public meetings were held to solicit input on the range of alternatives to be considered. On October 1, 2004, Defendants published a Supplemental FEIS for the Western Section and a Supplemental DEIS for the Eastern Section. A conforming Long Range Transportation Plan (“LRTP”) for the Winston-Salem metropolitan area, which includes the Northern Beltway, was approved by the Winston-Salem Urban Area Metropolitan Planning Organization (“MPO”) on January 19, 2006, and by USDOT on April 5, 2006. (Doc. 123 (case 1:99cv134) Ex. A, Declaration of John Sullivan, P.E. (“Sullivan Decl.”), ¶¶ 9, 11; see id. Ex. B, Affidavit of Michael S. Bruff, P.E. (“Bruff Aff.”), ¶¶ 8, 10.) A conforming Metropolitan TIP for the Winston-Salem metropolitan area, which includes the Northern Beltway, was approved by the Winston-Salem Urban Area MPO on ...