N.C. Wildlife v. N.C. Dept. of Transp., No. 11-2210

Decided: May 3, 2012

The North Carolina Wildlife Federation, Clean Air Carolina, and Yadkin Riverkeeper (“the Conservation Groups”) appealed the grant of summary judgment in favor of the North Carolina Department of Transportation and Federal Highway Administration (“the Agencies”).  The conservation groups filed an action seeking to enjoin construction of the Monroe Connector, a new twenty mile toll road in North Carolina, contending that the process by which the agencies approved the road violated the National Environmental Protection Act (NEPA).  On appeal, the Fourth Circuit reversed the district court, holding that the Agencies did indeed violate NEPA.

The Agencies began with creating a statement of purpose and need, evaluating the region’s existing transportation network.  In evaluating possibilities to help solve traffic problems, the Agencies created an Environmental Impact statement as required by NEPA.  After considering economic impacts and traffic projections, the agency carried forward “build” alternatives for new paths to construct the Monroe Connector as well as a “no build” alternative, a scenario without major improvements.  The purpose of the “no build” alternative was to provide a baseline for comparison with the “build” alternatives.  The agencies compared traffic projections as well as indirect and cumulative environmental effects in year 2035 for the build alternatives against the “no build” baselines.  The accuracy of the “no build” baseline was critically important given its widespread use in the Impact Statement.  The agencies relied on a report from the Mecklenburg-Union Metropolitan Planning Organization (“MUMPO”) for information to create the “no build” baseline.  The critical problem with MUMPOs report was that part of the data depended on the anticipated roadway network, which actually assumed construction of the proposed Monroe Connector.  By using this data, the Agencies incorporated “build” assumptions into the “no build” baseline.  Throughout the process, public commentators repeatedly asked the Agencies whether the “no build” baseline assumed construction of the Monroe Connector.  In their responses, the Agencies either failed to address the issues or incorrectly stated that the Monroe Connector was not factored into the “no build” baseline.  After issuing the Agencies’ Record of Decision, the final component of the NEPA process, the conservation groups again asked whether the underlying data was a true “no build” scenario, again receiving a response by the Agencies that the “no build” scenario did not include the Monroe Connector.

The conservation groups filed suit shortly after the Record of Decision, asserting violations of NEPA by: failing to analyze the environmental impacts of the Monroe Connector, conducting a flawed analysis of the alternatives, and presenting materially false and misleading information to other agencies and to the public.  For the first time, the Agencies admitted that the “no build” baseline assumed the existence of the Monroe Connector.  The district court nonetheless granted the Agencies’ motion for summary judgment, reasoning that their use and reliance on MUMPO’s data was reasonable and did not violate their NEPA obligations.  A reviewing court is permitted to set aside an agency action if that action was arbitrary, capricious, an abuse of discretion, or otherwise not accordance with law.  A reviewing court must avoid automatically approving agency action, and must ensure that the agency has examined the relevant data and articulated an adequate explanation for its actions.

The broad dissemination of information required by NEPA permits the public and other government agencies to react to the effects of a proposed action at a meaningful time and play a role in the decision-making process.  The heart of NEPA is the requirement of a detailed environmental impact statement which must include alternatives to the proposed action as well as the environmental impact of the proposed action.  The range of reasonable alternatives must include the alternative of “no build.”  Without accurate baseline data, an agency can not carefully consider information about significant environmental impacts.  Not only did the Agencies confuse the “no build” and “build” scenarios, making it impossible to accurately isolate and assess the environmental impacts of the Monroe Connector, they refused to acknowledge their error to the public and maintained that the “no build” baseline did not assume the existence of the Monroe Connector until litigation actually began.  The agencies asserted that the admission of their mistake during litigation cured the missteps previously made, an assertion the Fourth Circuit did not find compelling.

NEPA procedures emphasize clarity and transparency of process over particular substantive outcomes, thus agencies violate NEPA when they fail to disclose that their analysis contains incomplete information.  Because the Agencies failed to disclose critical assumptions underlying their decision to build the road and instead provided the public with incorrect information, the Fourth Circuit held that they did indeed violate NEPA, vacating the judgment of the district court and remanding the case so that the Agencies could fully and publicly evaluate the “no build” data.

Full Opinion

-Nora Bennani

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