Sc Wildlife Federation v. Sc Dept. of Transp., 2:06 CV 02528 DCN.

• Court: United States District Courts. 4th Circuit. United States District Court of South Carolina
• Writing for the Court: Norton
• Citation: 485 F.Supp.2d 661
• Parties: SOUTH CAROLINA WILDLIFE FEDERATION; South Carolina Coastal Conservation League; and Audubon South Carolina, Plaintiffs, v. SOUTH CAROLINA DEPARTMENT OF TRANSPORTATION; Tony L. Chapman, Acting Executive Director, South Carolina Department of Transportation; Federal Highway Administration; and Robert L. Lee, Division Administrator, Federal Highway Administration, Defendants.
• Docket Number: No. 2:06 CV 02528 DCN.,2:06 CV 02528 DCN.
• Decision Date: 16 April 2007

485 F.Supp.2d 661

SOUTH CAROLINA WILDLIFE FEDERATION; South Carolina Coastal Conservation League; and Audubon South Carolina, Plaintiffs, v. SOUTH CAROLINA DEPARTMENT OF TRANSPORTATION; Tony L. Chapman, Acting Executive Director, South Carolina Department of Transportation; Federal Highway Administration; and Robert L. Lee, Division Administrator, Federal Highway Administration, Defendants.

No. 2:06 CV 02528 DCN.

United States District Court, D. South Carolina, Charleston Division.

April 16, 2007.

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J. Blanding Holman, IV, Chapel Hill, NC, for plaintiff.

Mitchell Myron Willoughby, Randy Lowell, Willoughby and Hoefer, Columbia, SC, Beth Drake, Asst. U.S. Atty., U.S. Attorneys Office, Columbia, SC, for defendant.

ORDER and OPINION

NORTON, District Judge.

This matter is before the court on defendants South Carolina Department of Transportation's (SCDOT) and Tony L. Chapman's¹ motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiffs' suit alleges defendants failed to follow the environmental protection procedures mandated by the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4321 et seq., in planning for the construction of the Briggs-DeLaine-Pearson Connector, a proposed roadway running between Lone Star and Rimini, South Carolina. Defendants have moved to dismiss plaintiffs' claims against them on various grounds. For the reasons stated below, defendants' motion to dismiss is granted in part and denied in part.

I. BACKGROUND

This action arises from the planned construction of the Briggs-DeLaine-Pearson Connector, which would connect the towns of Rimini and Lone Star, South Carolina. The estimated total cost of the project is between $100 to $150 million, which the SCDOT asserts will be funded entirely with federal appropriations. The connector would run for almost ten miles, including a roughly three mile-long bridge through the Upper Santee Swamp. Defendants state the project is necessary to bring new economic opportunities to some of South Carolina's most impoverished citizens. According to plaintiffs, the connector will have significant negative effects on the environment surrounding the swamp, which they describe as "a central component in the largest remaining unbroken wildlife habitat in central South Carolina."

Because NEPA figures prominently in this motion, it is useful to offer a brief explanation of the Act's requirements. NEPA requires an agency that is undertaking a "major Federal Action[] significantly affecting the quality of the human environment" to complete an environmental impact statement (EIS). 42 U.S.C. § 4332(2)(C). The EIS must contain a number of elements, including a statement on the action's environmental impacts and the alternatives to the proposed action. Id. NEPA and its EIS requirement are procedural, aimed at ensuring that agencies fully consider the environmental effects of their actions and evaluate more environmentally friendly alternatives. See Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). NEPA also acts to ensure "broad dissemination of relevant environmental information" to the other governmental agencies and to the public. Id.

The Council on Environmental Quality (CEQ) has promulgated regulations, applicable to all federal agencies, to implement NEPA and the EIS requirement. See 40 C.F.R. §§ 1500-1508. The EIS must contain a description of the project as well as a statement describing the need for the agency action. 40 C.F.R. § 1502.13. The agency must also include a discussion of the action's environmental impact and list those "adverse environmental affects which cannot be avoided should the proposal be implemented." 42 U.S.C. § 4332(2)(C)(i)-(ii). NEPA also requires the agency to include a "detailed statement" on the "alternatives to the proposed action." 42 U.S.C. § 4332(2)(C)(iii). That statement "is the heart of the environmental impact statement" and must "[r]igorously explore and objectively evaluate all reasonable alternatives." 40 C.F.R. § 1502.14(a).

The first step in completing the EIS requirement is to issue a draft environmental impact statement (DEIS) for public comment. 40 C.F.R. § 1503.1. Once the comments have been received, the agency must "assess and consider" the comments in developing the final environmental impact statement (FE IS). Id. § 1503.4(a). The FEIS is then published in the Federal Register, id. § 1506.10(b), and followed by the Record of Decision, id. § 1505.2.

Congress authorized the connector in 1998 and so far has appropriated at least $16 million for the project.² The Federal Highway Administration (FHWA) and SCDOT began the NEPA process when Congress authorized the connector. The agencies issued the DEIS in October 2001 and, according to plaintiffs, received a number of critical comments in response. Plaintiffs also allege other federal and state agencies submitted critical comments. Defendants issued the FEIS in December 2002, although plaintiffs assert it failed to correct the problems contained in the DEIS. Among the alleged problems in the FEIS were an impermissibly narrow purpose and need statement, a failure to adequately consider alternatives, and a failure to adequately assess the project's environmental impacts. In June 2003, FHWA issued a Record of Decision approving the FEIS. On March 17, 2006, FHWA published a notice in the Federal Register establishing a 180-day statute of limitations period for challenging agency decisions regarding the connector. Plaintiffs brought this suit before the statute of limitations expired.

II. STANDARD OF REVIEW

The purpose of a Rule 12(b)(6) motion "is to test the sufficiency of the complaint," not to decide the merits of the action. Edwards v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir.1999). At this stage of the litigation, a plaintiff's well pleaded allegations are taken as true, and the complaint, including all reasonable inferences, is liberally construed in the plaintiff's favor. See McNair v. Lend Lease Trucks, Inc., 95 F.3d 325, 327 (4th Cir.1996). Dismissal under Rule 12(b)(6) is generally regarded as appropriate only "if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984). Generally, the court looks only to the complaint itself to ascertain the propriety of a motion, to dismiss. See Colleton Reg'l Hosp. v. MRS Med. Review Sys., Inc., 866 F.Supp. 891, 893 (D.S.C.1994). A plaintiff need not plead detailed evidentiary facts, and a complaint is sufficient if it will give a defendant fair notice of what the plaintiffs claim is and the grounds upon which it rests. See Bolding v. Holshouser, 575 F.2d 461, 464 (4th Cir.1978). Nonetheless, the court cannot ignore a clear failure in the pleadings to allege any facts that set forth a claim. See Migdal v. Rowe Price-Fleming Int'l, Inc., 248 F.3d 321, 325 (4th Cir.2001) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)).

III. DISCUSSION

In support of their motion to dismiss, defendants argue: (1) that plaintiffs lack standing to assert their claims; (2) that plaintiffs' claims are not yet ripe for adjudication; (3) that the Eleventh Amendment and the doctrine of sovereign immunity bar plaintiffs' claims; (4) that NEPA does not apply to state agencies; and (5) that even assuming NEPA applies, plaintiffs lack a private right of action to enforce it against the state agency.

A. Standing

"[T]he question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues." Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). To have standing, a plaintiff must establish three well-known elements: (1) that plaintiff has suffered an "injury in fact" that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as, opposed to merely speculative, that the injury will be redressed by a favorable decision. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). Although plaintiffs bear the burden of proving standing requirements to the same extent as any other element of their case, on a motion to dismiss the "general factual allegations of injury resulting from the defendant's conduct may suffice" to demonstrate standing. Lujan, 504 U.S. at 561, 112 S.Ct. 2130.

1. Injury in Fact

Defendants first argue that plaintiffs have not or will not suffer an injury in fact. A plaintiff cannot show injury in fact by simply pointing to an agency's failure to follow a federal procedural statute. See Lujan, 504 U.S. at 572-74, 112 S.Ct. 2130; Sierra Club v. Morton, 405 U.S. 727, 734-35, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). Rather, "the `injury in fact' test requires more than an injury to a cognizable interest. It requires that the party seeking review be himself among the injured." Sierra Club, 405 U.S. at 734-35, 92 S.Ct. 1361. Thus, an agency's harmless failure to follow an administrative procedure does not confer standing, nor does harm only to the environment itself. Plaintiffs must demonstrate that they would personally be injured in some individual and particularized way by the defendants' actions. See Piney Run Pres. Ass'n v. County Comm'rs, 268 F.3d 255, 263 (4th Cir.2001).

Although procedural violations and environmental harm alone are not enough for standing purposes, the injury in fact requirement is not hard for plaintiffs to meet. The injury in fact requirement includes...