North Carolina Wildlife Fed'n v. North Carolina Dep't of Transp., 11–2210.

• Decision Date: 03 May 2012
• Docket Number: No. 11–2210.,11–2210.
• Citation: 677 F.3d 596
• Parties: NORTH CAROLINA WILDLIFE FEDERATION; Clean Air Carolina; Yadkin Riverkeeper, Plaintiffs–Appellants, v. NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; Eugene Conti, Secretary of the North Carolina Department of Transportation; Federal Highway Administration; John F. Sullivan, Division Administrator, Federal Highway Administration, Defendants–Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

677 F.3d 596

NORTH CAROLINA WILDLIFE FEDERATION; Clean Air Carolina; Yadkin Riverkeeper, Plaintiffs–Appellants,

v.NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; Eugene Conti, Secretary of the North Carolina Department of Transportation; Federal Highway Administration; John F. Sullivan, Division Administrator, Federal Highway Administration, Defendants–Appellees.

No. 11–2210.

United States Court of Appeals, Fourth Circuit.

Argued: March 21, 2012.Decided: May 3, 2012.

ARGUED: Frank S. Holleman, III, Southern Environmental Law Center, Chapel Hill, North Carolina, for Appellants. Seth Morgan Wood, Office of the United States Attorney, Raleigh, North Carolina; Scott Thomas Slusser, North Carolina Department of Justice, Raleigh, North Carolina, for Appellees. ON BRIEF: Chandra T. Taylor, Kimberley Hunter, J. David Farren, Southern Environmental Law Center, Chapel Hill, North Carolina, for Appellants. Roy Cooper, Attorney General, Raleigh, North Carolina, for Appellees North Carolina Department of Transportation and Eugene Conti, Secretary of the North Carolina Department of Transportation; Thomas G. Walker, United States Attorney, Raleigh, North Carolina, for Appellees Federal Highway Administration and John F. Sullivan, Division Administrator, Federal Highway Administration.

Before MOTZ, SHEDD, and AGEE, Circuit Judges.

Vacated and remanded by published opinion. Judge MOTZ wrote the opinion, in which Judge SHEDD and Judge AGEE joined.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

The North Carolina Department of Transportation and the Federal Highway Administration (collectively “the Agencies”) recently approved construction of a new twenty-mile toll road in North Carolina linking Mecklenburg and Union Counties—the Monroe Connector Bypass. Seeking to enjoin construction of the toll road, the North Carolina Wildlife Federation, Clean Air Carolina, and Yadkin Riverkeeper (collectively “the Conservation Groups”) filed this suit, contending that the process by which the Agencies approved the road violated the National Environmental Protection Act (“NEPA”). The district court granted summary judgment to the Agencies. The Conservation Groups now appeal. Because the Agencies failed to disclose critical assumptions underlying their decision to build the road and instead provided the public with incorrect information, they did indeed violate NEPA. Accordingly, we must vacate the judgment of the district court and remand for further proceedings consistent with this opinion.

I.

We begin by recounting the undisputed facts and the procedural history of this case.

A.

In 2007, after a number of failed attempts, the North Carolina Department of Transportation again proposed construction of the Monroe Connector Bypass (hereinafter “the Monroe Connector”) and, under the Federal Highway Administration's supervision, commenced the environmental assessment process required by NEPA.

The Agencies began by creating a Statement of Purpose and Need, which evaluated the region's existing transportation network, including an in-depth analysis of U.S. Highway 74. That road serves as the “primary transportation connection between Union County, the fastest growing county in North Carolina, and Mecklenburg County/City of Charlotte, the economic hub of the region,” and “also serves as an important commercial corridor.” The Agencies determined that U.S. 74's “[a]verage travel speeds range from approximately 20 to 30 miles per hour during the peak hour” with “one-third of the intersections operating at an unacceptable Level of Service.” The Statement of Purpose and Need concluded that U.S. 74 suffers from “[c]apacity [d]eficiencies” and does not allow for “high-speed regional travel.”

To remedy these shortcomings, the Agencies proposed developing “a facility that allows for safe, reliable, high-speed regional travel in the U.S. 74 Corridor ... while maintaining access to properties along existing U.S. 74.”

In evaluating possibilities that might meet these goals, the Agencies created an Environmental Impact Statement (hereinafter “Impact Statement”). The Agencies began with a draft Impact Statement, and after taking public comment, published a final Impact Statement. See 40 C.F.R. §§ 1502.9(a), 1503.1(a), 1503.4.

The draft Impact Statement analyzed a wide variety of proposals, among them the Agencies' preferred choice—the Monroe Connector. After two initial screenings, the Agencies eliminated all but three categories of proposals: (1) improve U.S. 74, (2) construct the Monroe Connector, and (3) a hybrid—combining the Monroe Connector with improvements to U.S. 74. Within these categories, the Agencies developed twenty-five “preliminary study alternatives.” They analyzed these preliminary study alternatives to determine which ones “should be carried forward” as “detailed study alternatives” to receive greater analysis. After considering economic impacts and traffic projections, the Agencies “carried forward” sixteen “build” alternatives for detailed study.¹ These “build” alternatives consisted of nearly identical paths for constructing the Monroe Connector.

The Agencies also carried forward a “no action” alternative—a scenario “without major improvements.” The draft Impact Statement and the final Impact Statement explained that the purpose of the “no action” or “no build” alternative was “to provide a baseline for comparison” with the “build” alternatives. For example, in the draft Impact Statement, the Agencies compared the year–2035 traffic projections for the “build” alternatives against the year–2035 traffic projections for the “no build” baseline. Similarly, in the final Impact Statement the Agencies compared the indirect and cumulative environmental effects of the “build” alternatives with the “no build” baseline. Given its widespread use the accuracy of the “no build” baseline was critically important.

The Agencies created the “no build” baseline using information from a local planning organization. They relied on the Mecklenburg–Union Metropolitan Planning Organization (“MUMPO”) to develop socioeconomic data based on its Regional Travel Demand Model. This model projects “population, household, and employment figures” for the region using a two-step process. First, a “top-down” analysis of “census and employment projection data ... at the county [level]” calculated “the maximum number of households, population and employment.” Appellees' Br. at 15–16. Second, a “bottom-up” process allocated the top-down projected growth throughout the Monroe Connector's future land use study area. Id.

The bottom-up process divided the area into 571 “traffic analysis zones.” MUMPO's model then calculated projected growth for each of these zones using a number of “land development factors”: developable and redevelopable residential land, population change, water availability, sewer availability, expert predicted growth, municipal growth policy, and travel time to employment. A zone's “travel time to employment” depended on MUMPO's anticipated roadway network for the region. This anticipated roadway network included the proposed Monroe Connector. Thus, although the Agencies used MUMPO's projections as the “no build” baseline, part of MUMPO's data actually assumed construction of the Monroe Connector. By using MUMPO's data, therefore, the Agencies incorporated “build” assumptions into the “no build” baseline.

Throughout the NEPA process, public commentators repeatedly asked the Agencies whether the “no build” baseline in fact assumed construction of the Monroe Connector. In responding to these comments, the Agencies either failed to address the underlying issue or incorrectly stated that the Monroe Connector was not factored into the “no build” baseline.

For example, when the Agencies published their estimate that the 2035 “build” traffic volume would be less than the 2035 “no build” baseline traffic volume, the Conservation Groups queried whether this “implausibl[e]” conclusion might be the result of the “no build” data actually “assum[ing] that the Monroe Connector” would be built. Without responding to the Conservation Groups' underlying concerns regarding the accuracy of the “no build” baseline, the Agencies simply issued an errata table lowering the 2035 “no build” traffic projection baseline to below the “build” levels. The Agencies offered no explanation as to the source of the error and instead summarily stated that “the 2035 No–Build Alternative [traffic] forecast was inadvertently overestimated,” and assured the public that “all other conclusions and discussions remain valid.”

Similarly, when the Agencies concluded that the indirect and cumulative environmental effects of the Monroe Connector were minimal compared to the “no build” baseline, the United States Fish and Wildlife Service requested “further clarification regarding the basis for the No-build scenario.” “Specifically,” the Fish and Wildlife Service asked “if MUMPO's [projections] are the basis for the no-build scenario and [if] they contain the [Monroe Connector], how is this a true characterization of no-build?” The Agencies responded with a memorandum drafted by their consultant, Baker Engineering, concluding that “the methodology for determining the No–Build scenario ... is appropriate and defensible.” Baker expressly stated, however, that “the MUMPO ... projections do not account for the Monroe Connector[ ].” (emphasis added).

Unsatisfied with this response, the Fish and Wildlife Service asked whether the Agencies were “doubly sure about th[eir] assumption.” The Agencies subsequently asked Baker to contact MUMPO and local officials to ask whether they “would agree with [its] assumption that the[ ] [“no build” baseline] forecasts represent a future scenario without the Monroe Connector.” After receiving generally confirming responses, Baker assured the Fish and Wildlife Service. In light of this assurance, although the Fish and Wildlife Service “continued to be concerned...