North Carolina Wildlife Fed'n v. North Carolina Dep't of Transp.

• Decision Date: 24 October 2011
• Docket Number: No. 5:10-CV-476-D,5:10-CV-476-D
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: NORTH CAROLINA WILDLIFE FEDERATION, et. al., Plaintiffs, v. NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, et. al., Defendants.

NORTH CAROLINA WILDLIFE FEDERATION, et. al., Plaintiffs,

v. NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, et. al., Defendants.

No. 5:10-CV-476-D

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

Dated: October 24, 2011

ORDER

On November 2, 2010, North Carolina Wildlife Federation, Clean Air Carolina, and Yadkin Riverkeeper (collectively, "plaintiffs"), filed suit in the Eastern District of North Carolina. Compl. [D.E. 1]. Plaintiffs sued the North Carolina Department of Transportation ("NCDOT"), Eugene Conti, Secretary of NCDOT, Federal Highway Administration ("FHWA"), and John F. Sullivan, FHWA Division Administrator (collectively, "defendants"), all of whom are responsible for planning and authorizing the construction of the Monroe Connector/Bypass project ("Monroe Connector/ Bypass" or "project") in Union and Mecklenburg Counties, North Carolina. Compl. ¶¶ 19-22.

Plaintiffs allege that defendants have not carefully analyzed the environmental impacts associated with the Monroe Connector/Bypass, and thereby violated the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. §§ 4321-70f. Specifically, plaintiffs allege that defendants violated NEPA by: (1) failing to analyze the environmental impacts of the Monroe Connector/ Bypass; (2) conducting a flawed analysis of alternatives; and (3) presenting materially false and misleading information to other agencies and to the public.

On November 23, 2010, plaintiffs filed a motion for a preliminary injunction against defendants [D.E. 8]. On December 16, 2010, the court held a lengthy hearing on plaintiffs' motion for a preliminary injunction. On December 30, 2010, the court denied plaintiffs' motion for a preliminary injunction [D.E. 28]. Approximately six months later, plaintiffs moved for summary judgment [D.E. 47] and filed a memorandum in support of that motion. Pls.' Mem. Supp. Mot. Summ. J. [D.E. 48]. On June 30, 2011, federal defendants, FHWA and John F. Sullivan, filed a cross-motion for summary judgment [D.E. 50]. State defendants, NCDOT and Eugene Conti, did the same [D.E. 52]. Both federal and state defendants filed memoranda in support of their cross-motions for summary judgment [D.E. 51, 53]. In July 2011, the parties exchanged several replies and surreplies [D.E. 55-58], The parties also submitted several letters from the United States Fish and Wildlife Service ("USFWS") [D.E. 60-61, 63-64].

For the reasons set forth below, the court concludes that defendants' analysis concerning the Monroe Connector/Bypass complied with NEPA. Accordingly, the court grants defendants' motions for summary judgment and denies plaintiffs' motion for summary judgment.

I.

A.

NEPA is designed "to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man." 42U.S.C. §4321. To this end, NEPA sets forth a detailed regulatory scheme, the core of which is the Environmental Impact Statement ("EIS"). Nat'l Audubon Soc'y v. Dep't of the Navy, 422 F.3d 174, 184 (4th Or. 2005). An EIS is required for all "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(C). The statement must contain a detailed examination of

the environmental impact of the proposed action, . . . any adverse

environmental effects which cannot be avoided should the proposal be implemented, . . , alternatives to the proposed action, . . . the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and. . . any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

Id. §§ 4332(C)(i)-(v). In addition to these statutory requirements, Council on Environmental Quality ("CEQ") regulations require an EIS to discuss the environmental effects of the proposed action, 40 C.F.R. §§ 1502.15-1502.16, any reasonable alternatives to that action, id. §1502.14, any measures that may mitigate the negative environmental impact of the proposed action, id. §§ 1502.14(f), 1508.20, and the cumulative environmental impact of the proposed action and any other actions in the project area, id. §§ 1502.16, 1508.7.

NEPA's EIS requirement forces federal agencies to consider carefully the potential environmental consequences of their proposed actions, thereby ensuring "that important effects will not be overlooked or underestimated only to be discovered after resources have been committed or the die otherwise cast." Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989); Nat'l Audubon Soc'y, 422 F.3d at 184. The EIS also facilitates public participation in the administrative process by providing greater information on agency decisions. Robertson, 490 U.S. at 349.

An EIS is drafted in two stages. The federal agency first prepares an initial statement called a Draft EIS. 40 C.F.R. § 1502.9(a). The agency then solicits comments on the Draft EIS from other agencies and the public. Id. § 1503.1(a). The agency must respond to relevant comments and then publish a Final EIS. Id. § § 1502.9(b), 1503.4. Once the agency publishes the Final EIS, the agency may make its final decision on the proposed action. The agency must then publish that decision in a Record of Decision ("ROD"). Id. § 1505.2. Only then may the agency finalize its action. See id. § 1506.1(a).

B.

The facts in this case are not in dispute. See Pls.' Mem. Supp. Mot. Summ. J. 18; Fed. Defs.' Mem. Supp. Mot. Summ. J. [D.E.51] 11; State Defs.' Mem. Supp. Mot. Summ. J. [D.E. 53] 19-21. Defendants propose to construct a new tollroad in Union and Mecklenburg Counties, on the eastern side of Charlotte, North Carolina. (AR 029618). The Monroe Connector/Bypass, as it is called, will extend approximately twenty miles from U.S. 74 near 1-485 in Mecklenburg County to U.S. 74 between Wingate and Marshville, North Carolina, in Union County. (AR 029618). The project will cost approximately $800 million. (AR 029228).

The Monroe Connector/Bypass began as two separate projects. (AR 029619). In early 2005, the North Carolina Turnpike Authority ("NCTA") merged these projects at the request of the Mecklenburg-Union Metropolitan Planning Organization ("MUMPO"), a local planning agency. (AR 029620). NCTA began the NEPA process for the combined project in 2007. Pls.' Mem. Supp. Mot. Summ. J. 6. Shortly thereafter, NCTA was absorbed into NCDOT, and NCDOT assumed responsibility for the day-to-day direction of the NEPA process. Id.; see also N.C. Gen. Stat. Ann. § 136-89.182(b). FHWA supervised the NEPA process. Pls.' Mem. Supp. Mot. Summ. J. 6.

The NEPA process began with a Statement of Purpose and Need. Average travel speeds on U.S. 74 currently are about twenty to thirty miles per hour ("mph") during peak travel times. By 2030, these speeds are expected to drop below twenty mph. Furthermore, traffic congestion is high: one-third of the intersections in the project area operate at an unacceptable level of service during peak hours, and by 2030, this level is expected to increase to two-thirds. (AR 026228). The Statement of Purpose and Need declares that the project is necessary to relieve current and future "[c]apacity [d]eficiencies" on existing U.S. 74 and to address mat road's present and long-term "[i]nability to serve high-speed regional travel . . . ." (AR 007503). Relatedly, the purpose of theproject is two-fold: (1) to "[c]onstruct a facility that allows for safe, reliable, high-speed regional travel in the US 74 Corridor between 1-485 in Mecklenburg County and the Town of Marshville in Union County" that is "consistent with the North Carolina Strategic Highway Corridors Vision Plan for US 74 and the designation of US 74 on the North Carolina Intrastate System"; and (2) to "[i]mprove mobility in the US 74 corridor within the project study area, while maintaining access to properties along existing US 74." (AR 007504).

After formulating the Statement of Purpose and Need, defendants began analyzing various alternatives for the proposed project to determine which would best accommodate the stated purpose and need. Defendants considered nine different alternatives: (1) a "No-Build or No-Action Alternative;" (2) a "Transportation Demand Management Alternative;" (3) a "Transportation System Management Alternative;" (4) a "Mass Transit/Multi-Modal Alternative;" (5) an Improve Existing U.S. 74 Alternative (Standard Arterial Widening); (6) an Improve Existing U.S. 74 Alternative (Superstreet); (7) an Improve Existing U.S. 74 Alternative (Controlled-Access Highway); (8) a "New Location Alternative;" and (9) a "New Location/Improve Existing Roadways Hybrid Alternative." (AR014068-014076). Defendants analyzed these alternatives over the course of three different stages of screening. Defendants first analyzed the alternatives in a qualitative screening, during which any alternatives that were deemed infeasible or unable to fulfill the stated purpose and need were eliminated. Each eliminated alternative was briefly described and analyzed in the defendants' Draft Environmental Impact Statement ("Draft EIS"), and the reasons for eliminating the alternative were presented. (AR 014068-014077). Furthermore, each alternative carried forward for further examination was discussed, along with the reasons for retaining each of those alternatives. (AR 014068-014077). The alternatives that survived the qualitative first screening then underwent a qualitative second screening. Defendants eliminated some of those alternativesat this stage and kept others. The Draft EIS presented the reasoning behind these decisions. (AR 014077-014085). Finally, defendants analyzed the remaining alternatives under a quantitative third screening. Once more, defendants eliminated some alternatives and retained others, and justified these decisions in the Draft EIS. (AR 014085-014098). The Draft EIS also presented the design, methodology,...