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.)
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
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")
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
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:
N.C. Alliance for Transp. Reform v. U.S. Dep't of Transp., No. 1:99cv134 (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.
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
On January 11, 2007, after considering the public comments it received on the DEIS for the Eastern Section, Defendants issued a Supplemental FEIS/FEIS for the entire Northern Beltway ("SFEIS/FEIS").
On August 13, 2008, Plaintiffs filed case 1:08cv570 in this court, alleging that the Northern Beltway SFEIS/FEIS violates NEPA and NCEPA because it fails to evaluate greenhouse gas emissions and lacks consideration of proposed highway projects for a southern beltway loop ("Southern Loop") and a connector to the Piedmont Triad International Airport ("Airport Connector"). On June 1, 2009, Plaintiffs filed a motion for summary judgment. (Doc. 19.) Federal and State Defendants each filed an opposition to Plaintiff's motion and a cross-motion for summary judgment on July 8, 2009. (Docs.27, 30.) Additionally, Federal Defendants seek to strike certain documents Plaintiffs filed with their motion for summary judgment as appendices on the grounds they improperly expand the record (Doc. 32); Plaintiffs have filed an opposition (Doc. 34). Briefing was completed September 2009, and the court heard oral argument on all motions on March 26, 2010.
All motions before the court are considered below.
The merits of whether or not to build the Northern Beltway are not before the court; rather, the court's inquiry is limited to whether Defendants have complied with NEPA. Nat'l Parks & Conservation Ass'n v. U.S. Dep't of Transp., 222 F.3d 677, 680 (9th Cir.2000) (noting that "[w]e need not agree with the agency's conclusions; we must approve the EIS if we are satisfied that the EIS process fostered informed decision-making and public participation" (internal citation omitted)).
NEPA sets a national policy of protecting and promoting environmental quality. See 42 U.S.C. §§ 4321, 4331(a). Its purposes are two-fold: "to ensure that agencies will carefully consider detailed information concerning significant environmental impacts and to guarantee that the relevant information will be made available
42 U.S.C. § 4332(2)(C); see Hughes River Watershed Conservancy v. Glickman, 81 F.3d 437, 443 (4th Cir.1996) ("Hughes River/Glickman"). NEPA does not mandate any particular substantive result. 81 F.3d at 443. Rather, it focuses on procedure and "requires that an agency take a `hard look' at the environmental consequences of a proposed action, not that the agency select the most environmentally benign alternative." N.C. Alliance, 151 F.Supp.2d at 678.
To implement NEPA's provisions, Congress created the Council on Environmental Quality ("CEQ"), which in turn promulgated implementing regulations. See 40 C.F.R. §§ 1501.1-1508.28. CEQ regulations "are binding on all federal agencies, and CEQ's interpretation of NEPA is entitled to substantial deference." Sugarloaf Citizens Ass'n v. Fed. Energy Regulatory Comm'n, 959 F.2d 508, 512 n. 3 (4th Cir. 1992) (citing Andrus v. Sierra Club, 442 U.S. 347, 358, 99 S.Ct. 2335, 60 L.Ed.2d 943 (1979)).
NEPA contains no independent private right of action, but final agency actions are subject to judicial review under the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 702, 706; Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 882, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). The court's scope of review is to determine whether the challenged agency action was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" or whether the agency undertook action "without observance of procedure required by law." 5 U.S.C. § 706(2)(A), (D). In other words, the court's role is to assess whether the agency's decision is "within the bounds of reasoned decisionmaking." Balt. Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 105, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983). The court must base its decision on the administrative record and "is not generally empowered to conduct a de novo inquiry into the matter being reviewed and to reach its own conclusions based on such an inquiry." Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985).
Deference to agency expertise does not "shield [an agency] from a thorough, probing, in-depth review," however. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), abrogated on other grounds, Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). An agency violates the APA if it relied upon "factors that Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Hughes River Watershed Conservancy v. Johnson, 165 F.3d 283, 287-88 (4th Cir.1999) ("Hughes River/Johnson"). A court must decide if the agency's decision "was based
Defendants first seek dissolution of the Order of Dismissal in case 1:99cv134. More accurately, they seek to dissolve that portion which enjoined them from taking any further action relating to the Winston-Salem Beltway 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." (Doc. 21.) Defendants contend that these conditions have been met (Doc. 122 at 2-3) and that compliance has eliminated any "case or controversy" within the meaning of Article III, section 2, of the Constitution, consequently divesting this court of jurisdiction to enforce the injunction any further. (Id. at 3.)
Plaintiffs oppose this request for relief, asserting that Defendants have not complied with the terms of the injunction. Specifically, Plaintiffs contend that the new environmental analysis—the SFEIS/FEIS—contains a "seriously flawed safety analysis" that renders the ROD not issued in accordance with NEPA and thus not "pursuant to applicable law." (Doc. 126 at 2.) Defendants respond that the injunction requires only reissuance of the environmental documentation and does not contemplate substantive compliance with the environmental laws and, even if it did, the documentation passes muster under NEPA. (Doc. 132.)
Defendants have not identified any specific legal basis for their motion, other than the terms of the Order of Dismissal. The Order of Dismissal appears not to be a final order insofar as it dismissed the complaint in case 1:99cv134, but not the action, without prejudice. See Chao v. Rivendell Woods, Inc., 415 F.3d 342, 345 (4th Cir. 2005) (distinguishing between an order dismissing an action without prejudice and one dismissing a complaint without prejudice, stating that the latter order is generally not appealable); Domino Sugar Corp. v. Sugar Workers Local Union 392, 10 F.3d 1064, 1067 (4th Cir.1993) (holding that "a plaintiff may not appeal the dismissal of his complaint without prejudice unless the grounds for dismissal clearly indicate that `no amendment [in the complaint] could cure the defects in the plaintiff's case'"). It is undeniable that the court has the inherent authority to consider and alter its non-final orders. Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 12, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983) (noting that "every order short of a final decree is subject to reopening at the discretion of the district judge"); Fayetteville Investors v. Commercial Builders, Inc., 936 F.2d 1462, 1469 (4th Cir.1991) (concluding that "[a]n interlocutory order is subject to reconsideration at any time prior to the entry of a final judgment"); Fed.R.Civ.P. 54(b) (providing that interlocutory orders that resolve fewer
The injunctive provisions of the Order of Dismissal, however, do not fall neatly into the category of interlocutory orders. Unlike interlocutory orders that are in effect during the pendency of the action, the injunctive provisions extend beyond the dismissal of the complaint (albeit without prejudice) and proscribe further activity indefinitely into the future. Indeed, in this case those proscriptions have operated continuously for over a decade. To this end, they operate more like a consent decree. It is not surprising, therefore, that when the parties have reached agreement in the past that Defendants could engage in certain limited activity despite the proscriptions of the Order of Dismissal, they have styled their consent requests as seeking relief from judgment under Rule 60(b). (See, e.g., Docs. 31-43.)
While "[a]n injunction prohibiting a federal project until the filing of an impact statement does not precisely fit the models to which ... Rule 60(b)(5) [is] directed," Sierra Club v. Mason, 365 F.Supp. 47, 49 (D.Conn.1973) (applying Rule 60(b)), the court finds that the rule provides the appropriate framework within which to assess the question before it. When the court raised this issue at oral argument, the parties agreed that analysis under Rule 60(b) would be appropriate.
Under Rule 60(b), a party may be afforded relief from an injunction that "has been satisfied" or where prospective application of the order is "no longer equitable." Fed.R.Civ.P. 60(b)(5); Thompson v. U.S. Dep't of Hous. & Urban Dev., 404 F.3d 821, 826 (4th Cir.2005) (stating that "[t]he court's inherent authority to modify a consent decree or other injunction is now encompassed in Rule 60(b)(5)"); Transp., Inc. v. Mayflower Servs., Inc., 769 F.2d 952, 954 (4th Cir.1985) (per curiam) (stating that "[d]istrict courts have inherent equitable power to modify their injunctions to ensure that any injunctive relief granted fully vindicates the rights accorded by the underlying judgment"). Rule 60(b) motions are committed to the sound discretion of the trial court. Nat'l Org. for Women v. Operation Rescue, 47 F.3d 667, 669 (4th Cir.1995) (per curiam).
Before consideration of the merits, a Rule 60(b) movant must generally satisfy three threshold conditions: (1) timeliness of the motion, (2) existence of a meritorious claim or defense, and (3) absence of unfair prejudice to the opposing party. Park Corp. v. Lexington Ins. Co., 812 F.2d 894, 896 (4th Cir.1987). Defendants meet these threshold requirements. First, as to timing, their motion was filed on Feb. 19, 2009 (Doc. 122), just four days after the signing of the ROD that approved the SFEIS/FEIS issued on Jan. 11, 2007. See Fed.R.Civ.P. 60(c)(1) ("A motion under Rule 60(b) must be made within a reasonable time ...."). Second, Defendants have offered facts to support their claim that the conditions of the injunction—namely, the issuance of environmental analysis and a new ROD—have been satisfied and, as such, the injunction should be lifted. See Augusta Fiberglass Coatings, Inc. v. Fodor Contracting Corp., 843 F.2d 808, 812 (4th Cir.1988) (noting that "[a] meritorious defense requires a proffer of evidence which would permit a finding for the ... party"). Third, while "[t]he prejudice factor is of lesser importance," Nat'l Credit Union Admin. Bd. v. Gray, 1 F.3d 262, 265 (4th Cir.1993) (citing Compton v. Alton Steamship Co., 608 F.2d 96,
Having found those threshold conditions satisfied, the court turns to consideration of the merits.
Under Rule 60(b)(5), the court may relieve a party of the obligations of an injunction where its conditions have been satisfied. Defendants contend that satisfaction requires that they have engaged in the procedural steps of conducting the necessary environmental analysis, obtained an approved LRTP and TIP, issued a SFEIS/FEIS, and adopted a ROD—all of which they have done. Defendants contend therefore that the court lacks jurisdiction to review the SFEIS/FEIS and ROD to determine their compliance with federal law, including NEPA. Plaintiffs contend that this is a misreading of the Order of Dismissal, whose terms requiring that the ROD be issued "pursuant to applicable federal law" mandate that this court examine Plaintiffs' additional challenges to its safety analysis under NEPA.
The court concludes that Plaintiffs read too much into the Order of Dismissal. While the Order of Dismissal was entered by a judge other than the undersigned, consideration of the events leading to its entry convinces the court that the injunctive provisions were not intended to remain in effect until entry of another judicial decree that considered new, not yet brought, challenges to the subsequent ROD. After Plaintiffs brought their case in 1999, Defendants agreed before even filing an answer to "reopen the NEPA process" and "effectively withdrew the previously issued ROD." N.C. Alliance, 151 F.Supp.2d at 671. Though no party could point the court to any filing or document that shed any light on the parties' intentions in seeking the Order of Dismissal, it is noteworthy that Judge Bullock specifically cited FHWA's instructions to NCDOT in acknowledging the events precipitating the Order of Dismissal and Defendants' decision to reopen the NEPA process. FHWA stated:
N.C. Alliance, 151 F.Supp.2d at 672. This language tracks nearly identically that found in the Order of Dismissal and clearly conditions future project approvals on the issuance of the ROD (and not on resolution of any subsequent challenges to it). In the Order of Dismissal, the court further found that "the final agency action which was challenged in this case had been superseded" and dismissed the complaint without prejudice. (Doc. 21.) Therefore, there is no complaint before the court, although the Order of Dismissal left Plaintiffs free to re-file their complaint to bring new challenges to the new ROD. Instead of doing so, Plaintiffs chose to file a new complaint in the related case of 1:08cv570.
Other courts have likewise indicated that plaintiffs must institute separate proceedings to challenge the adequacy of the environmental documents filed in response to an injunction. See Hunt v. N.C. Dep't of Transp., 299 F.Supp.2d 529, 532 (E.D.N.C.2004) (noting in NEPA case that the court "entered an order dissolving the injunction, with the understanding that plaintiffs would be allowed to file a new suit and challenge the `adequacy' of the
The Order of Dismissal requires that a "new environmental analysis and documentation process be completed" and that Defendants "issue a new Record of Decision pursuant to applicable federal law." The reference to "pursuant to applicable federal law" does not contemplate retention of jurisdiction to consider further challenges in the absence of a new complaint. Where that retention is intended, courts have so stated. See, e.g., Nat'l Audubon Soc'y v. Butler, 160 F.Supp.2d 1180, 1191 (W.D.Wash.2001) (ordering that the court will "retain jurisdiction to dissolve the injunction upon a showing the defendants have prepared an adequate EIS"). Nor does the injunction require that it remain in place until "adequate" documentation has been prepared. Cf. N. Alaska Envtl. Ctr. v. Lujan, 961 F.2d 886, 887, 889-90 (9th Cir.1992) (enjoining mining operations "until adequate environmental impact statements [were] prepared"); Sierra Club v. Callaway, 499 F.2d 982, 994 (5th Cir. 1974) (ordering that the injunction "will continue in force pending the determination of the sufficiency of the respective [environmental] statements"). Rather, the court and parties intended that a wholly new ROD would be issued, which would include NEPA analyses for the Eastern Section—a section that was not part of the final agency action in case 1:99cv134. Indeed, the challenge Plaintiffs now raise (the safety analysis) relates to the Eastern Section, which was not the basis of the dismissed complaint but is part of a separate, subsequent lawsuit—case 1:08cv570.
Plaintiffs rely on Public Service Co. of Colorado v. Batt, 67 F.3d 234 (9th Cir. 1995), for the contention that the court intended to retain jurisdiction and require the injunction to remain in place until any further challenges to the new ROD have been resolved. Batt is readily distinguishable, however, because there the injunction expressly provided that it would remain in place until "the comprehensive environmental impact statement is completed, reviewed, and any challenges to the statement are resolved." Id. at 235. The injunction also expressly retained jurisdiction to resolve disputes "regarding the adequacy of the final environmental impact statement." Id. The Order of Dismissal contains no such terms.
Ordinarily, the proper remedy for Plaintiffs would have been to have filed a new complaint in case 1:99cv134 (putting Defendants on notice of their claims) or including their safety analysis claims in case 1:08cv570. For some unexplained reason, Plaintiffs did neither. But because the court concludes that Plaintiffs' safety analysis arguments lack merit, and considering the need for judicial efficiency given the length of time since the onset of litigation over the Northern Beltway, the court will address, on an alternative ground, the arguments raised by Plaintiffs on the merits. Cf. Habitat Educ. Ctr., Inc. v. Kimbell, 250 F.R.D. 397, 401 (E.D.Wis.2008) (noting that "[t]o require plaintiffs to file new suits under these circumstances would engender multiplicitous litigation and make little sense").
NEPA requires federal agencies to carefully consider all significant environmental impacts of a proposed action. See Robertson v. Methow Valley Citizens
In opposing Defendants' motion to dissolve the Order of Dismissal, Plaintiffs argue that the SFEIS/FEIS, which justified the Eastern Section in part on safety considerations, contains a "seriously flawed" crash analysis in Table 1-12, and that the analysis was revised but "not entirely corrected" in the ROD. (Doc. 127 at 7.) Plaintiffs contend that by signing off on the changed table in the ROD, Defendants based the ROD on a "flawed SFEIS/FEIS" that violated NEPA. (Id. at 8.) Defendants concede that the analysis of Table 1-12 in the SFEIS/FEIS contained errors but argue that, in response to comments received, they were corrected in the ROD before it was approved and nevertheless did not constitute a significant change so as to require a supplemental environmental impact statement. (Doc. 132 at 5-10.)
NEPA requires an agency to take a hard look at the environmental consequences of its proposed action even after an environmental impact statement is prepared. Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 373-74, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). Generally, "an agency takes a sufficient hard look when it obtains opinions from its own experts, obtains opinions from experts outside the agency, gives careful scientific scrutiny and responds to all legitimate concerns that are raised." Hughes River/Johnson, 165 F.3d at 288. An agency must supplement a draft or final environmental impact statement where it "makes substantial changes in the proposed action that are relevant to environmental concerns" or "[t]here are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts." 40 C.F.R. § 1502.9(c)(1)(i) & (ii). Thus, an agency need not supplement an otherwise finalized environmental impact statement each time new information comes to light. Marsh, 490 U.S. at 373, 109 S.Ct. 1851. Rather, it "should apply a `rule of reason'" regarding the value of the new information to the decision-making process. Id. at 373-74.
The court "must take a holistic view of what the agency has done to assess environmental impact" and not look "for any deficiency, no matter how minor." Nat'l Audubon, 422 F.3d at 186. Otherwise, "[a]llowing courts to seize upon any trivial inadequacy in an EIS as reason to reject an agency decision would permit undue intrusion into an agency's decisionmaking authority." Id. In order to trigger the supplementation requirement "the new circumstance must present a seriously different picture of the environmental impact of the proposed project from what was previously envisioned." Hickory Neighborhood Def. League v. Skinner, 893 F.2d 58, 63 (4th Cir.1990) (emphasis in original) (quoting Sierra Club v. Froehlke, 816 F.2d 205, 210 (5th Cir.1987)); see Marsh, 490 U.S. at 374, 109 S.Ct. 1851 (providing that supplementation is required where "new information is sufficient to show that the remaining action will `affec[t] the quality of the human environment' in a significant manner or to a significant extent not already considered"). Thus, the court's inquiry is two-fold: whether the agency took a hard look at the new information and, if so, whether its decision not to prepare a supplemental environmental impact statement was arbitrary or capricious. Hughes
Table 1-12 provides accident data for the years 1999-2002 for thirteen road segments in the study area for the Eastern Section of the Northern Beltway. (SFEIS/FEIS, vol. 1, at 1-46.) In order to determine if the roadways in the study areas sustain a higher than average accident rate, the total accident rate for each roadway segment in Table 1-12 was compared to a calculated "critical crash rate" for each roadway segment. (Id. at 1-43.) The critical crash rate was calculated using a formula that considers the statewide crash rate, vehicle exposure, and a probability constant. (Id. at 1-47.) Safety ratios were then calculated by "dividing the total accident rate for the roadways by the critical crash rates." (Id. at 1-43.) Defendants state, and Plaintiffs do not dispute, that "[s]afety ratios over 1.00 indicate the roadway accident rate exceeds the critical rate for that type of facility." (Id.) Thus, the critical crash rate is a statistical tool that helps analyze whether a segment's actual crash rate is higher than its critical rate and, if so, identifies the possibility that the location may have a safety deficiency that could be examined further. (Id. at 1-47.) The critical crash rate was calculated only for the Eastern Section "since safety is part of the Eastern Section purpose and need." (Id. at 1-43.)
Table 1-12 in the SFEIS/FEIS denoted six of thirteen road segments with a safety ratio greater than 1.00 (two segments of U.S. 52, one segment of U.S. 311, and three segments of N.C. 66).
Plaintiffs argue first that Defendants' Table 1-12 in the ROD "significantly lowered twelve of the thirteen safety ratios given in the SFEIS/FEIS" Table 1-12. (Doc. 126 at 2 n. 2.) Because these changes were made in the ROD and well after the SFEIS/FEIS was issued, Plaintiffs maintain, Defendants violated NEPA's requirement that an environmental impact statement be prepared before a decision. See Sierra Club v. Peterson, 717 F.2d 1409, 1414 (D.C.Cir.1983) (noting that an environmental impact statement is a decisionmaking
While it is true that twelve of the thirteen safety ratios were lowered as a result of Defendants' corrections, nowhere do Plaintiffs offer any evidence that the changes were in fact significant in an engineering or statistical sense. Defendants, on the other hand, have presented evidence that they are not. Mr. Lacy, a thirteen-year employee of NCDOT and manager of its Traffic Engineering and Safety Systems Branch, testified in his affidavit as follows:
(Lacy Aff. ¶ 18.) While all safety ratios were reduced (in several cases by mere hundredths of points), only one segment no longer remained greater than 1.00 (the 7.87 mile segment of U.S. 311 between I-40 and N.C. 66), and one segment (the 5.46 mile segment of U.S. 158 between U.S. 421/I-40 and N.C. 66) rose from .42 to 1.3. (ROD at 65.) Defendants also submitted the declaration of Mr. Joseph Geigle, a traffic operations and safety engineer for FHWA, who opined that the errors in the SFEIS/FEIS that were corrected in the ROD were not considered to be significant by FHWA under NEPA and were disclosed and corrected in the ROD.
The record indicates, moreover, that FHWA in fact reviewed and considered these corrections to the SFEIS/FEIS before issuing the ROD, its formal agency action. The corrections were specifically discussed in the ROD, and a corrected Table 1-12 was presented. Immediately above the signature line of the ROD is a statement that FHWA independently evaluated the comments to the SFEIS/FEIS "along with revisions to the document." (ROD at 92.) Thus, the final environmental impact statement was in fact prepared and considered (with corrections based in part on public comment) before the agency rendered its decision. The record therefore demonstrates that the agency took a hard look at the comments and made corrections to its analysis. The court cannot say that the corrections presented a "seriously different picture" of the environmental impact of the proposed project from that previously presented in the SFEIS/FEIS. Consequently, the agency's decision not to issue a supplemental environmental impact statement based on these corrections was not "a clear error in judgment" so as to render it arbitrary or capricious. Marsh, 490 U.S. at 378, 109 S.Ct. 1851.
Plaintiffs' argument as to the significance of the corrections is rebutted, moreover, by their own analysis. Plaintiffs contend that, despite Defendants' corrections, the safety analysis remains incorrect. (Doc. 127 at 7.) In support of their claims, Plaintiffs submitted the declaration of David Robertson, P.E., a retired NCDOT employee. (Doc. 126, Ex. 3, Declaration of David W. Robertson, P.E. ("Robertson
Robertson's analysis, if credited, results in the same number of segments having a safety ratio greater than 1.00 when compared to those in the SFEIS/FEIS. It also results in a nearly identical number of miles of roadway having a safety ratio greater than 1.00 (36.51 miles or approximately 43% of the studied roadway, compared to 38.92 or 46% of the studied roadway in the SFEIS/FEIS).
Defendants, moreover, defend their use of a 95% confidence level for this analysis based on NCDOT's "engineering judgment." (Lacy Aff. ¶ 11.) Acknowledging that a 99.95% confidence level is commonly used for urban areas in general (and a 95% level for rural areas), NCDOT's engineer Lacy states that NCDOT "typically" uses a probability value for a 95% confidence level because "using the 99.95% confidence level would imply greater precision than we can likely expect in screening for high accident locations." (Id.) Lacy testified further: "While our results when using the 99.95% confidence level could be considered correct from a mathematical or statistical perspective, the amount of engineering judgment that should be applied, the use of estimated exposure values, and the intent of our application of critical crash
"Agencies are entitled to select their own methodology as long as that methodology is reasonable." Hughes River/Johnson, 165 F.3d at 289. Moreover, "[w]hen specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive." Marsh, 490 U.S. at 378, 109 S.Ct. 1851. Here, the agency has adequately explained its reasoning for selecting its methodology, and this court will not second-guess an agency's exercise of judgment in its area of expertise. See Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233, 1244 (9th Cir.2005) (finding, in the context of a NEPA challenge, that because the agency had provided a "thorough and reasoned explanation" for its position, the court would not "take sides in a battle of the experts" (internal quotations omitted)). In the end, Robertson paints a picture very similar to that offered in both the SFEIS/FEIS and the ROD. As a consequence, the court cannot say that Table 1-12 in the ROD depicts an analysis so seriously different from that in the SFEIS/FEIS to warrant a supplemental environmental impact statement.
During oral argument, Plaintiffs raised arguments not made in the briefing to attack the SFEIS/FEIS. Raising such new arguments for the first time at oral argument undermines the purpose of orderly briefing and risks subjecting an opponent to an unfair disadvantage. It is odd, moreover, that Plaintiffs devoted such time and energy to having their expert, Mr. Robertson, analyze the various road segments in his proffered version of Table 1-12 only to shift the emphasis of their attack. None of these other arguments, however, saves Plaintiffs' claims.
Plaintiffs argue that the SFEIS/FEIS was misleading because its analysis was "meaningless." First, they contend that the ROD admits that two of the U.S. 52 segments in the Table 1-12 analysis, which showed a safety ratio greater than 1.00, were made safer by a specific safety improvement, project U-2826B. (See ROD at 54; SFEIS/FEIS, vol. 1 at 2-5 to 2-6.) This cast doubt, Plaintiffs claim, on the ROD's conclusion that these two segments were unsafe. Plaintiffs originally made this argument during the comment period. (ROD at 54.) It lacks merit, as Defendants determined, because the SFEIS/FEIS clearly noted that project U-2826B was slated to widen and upgrade the U.S. 52 roadway and interchanges between I-40 and the Northern Beltway interchange. (Id.; SFEIS/FEIS, vol. 1 at 1-23.) The ROD noted Plaintiffs' objection and explained that the improvements "address short-term safety and operations issues only" and that the "Northern Beltway is relevant regarding safety improvements because it will provide a safer option for travelers." (ROD at 54.) In reality, Plaintiffs' objections do not undermine the agencies' calculation of a safety ratio for the U.S. 52 segments (based on historical figures) but rather challenge the weight it contends the agencies should give the calculation on a going forward basis in light of planned improvements. The agencies' judgment is entitled to deference, and this court will not second-guess it. Mooreforce, Inc. v. U.S. Dep't of Transp., 243 F.Supp.2d 425, 442 (M.D.N.C.2003) (noting that "the agencies' actions are entitled to deference by the court absent a clear error of the agencies' judgment"); accord Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land Mgmt., 387 F.3d 989, 993 (9th Cir.2004) (acknowledging that the court is not empowered to substitute its judgment for that of the agency).
Finally, Plaintiffs point to the SFEIS/FEIS statement that a purpose of the project was to enhance safety, which provided:
(SFEIS/FEIS, vol. 1 at 1-11 (emphasis added).) Plaintiffs argue that the second sentence is misleading because it was revised in the ROD to eliminate any prediction of any quantifiable increase of safety, and was replaced with the following:
(ROD at 63-64.) The ROD explains that "[a]lthough a 2025 projected accident analysis was included in the SFEIS/FEIS, it was determined by NCDOT not to be a valid analysis, and was removed from the SFEIS/FEIS (as discussed further in Section 2.10.5)." (ROD at 63.)
Plaintiffs argue that the ROD's elimination of the reference to an 11 to 17 percent reduction in the accident rate and the admission that the 2025 projected accident analysis was not valid demonstrates that the safety analysis presented is seriously different from that contained in the
In sum, considering all Plaintiffs' arguments, the court concludes that Defendants did not violate NEPA with respect to their treatment of the safety analysis. The ROD reflects that the agency took a hard look at the corrected safety ratio analysis and reasonably concluded that the proposed project was not significantly affected by it.
This conclusion is consistent with an analysis of the equitable considerations involved. Rule 60(b)(5) also permits relief from a prospective injunction where "applying it prospectively is no longer equitable." The Fourth Circuit has explained that when considering this remedial provision, "a district court's task is to determine whether it remains equitable for the judgment at issue to apply prospectively and, if not, to relieve the parties of some or all of the burdens of that judgment on `such terms as are just.'" Alexander v. Britt, 89 F.3d 194, 197 (4th Cir.1996). While most cases involve injunctions under different circumstances, courts have identified a non-exhaustive list of factors to consider in determining whether to dissolve an injunction, which include the following: circumstances leading to the injunction and nature of conduct to be prevented; length of time since issuance; whether compliance has occurred; likelihood that the conduct sought to be prevented will recur absent the injunction; and whether the objective of the injunction has been achieved. See Crutchfield v. U.S. Army Corps of Eng'rs, 175 F.Supp.2d 835, 844 (E.D.Va.2001); accord Thompson, 404 F.3d at 827; MicroStrategy, Inc. v. Bus. Objects, S.A., 369 F.Supp.2d 725, 734-36 (E.D.Va.2005).
In summary, upon review of the merits of Plaintiffs' NEPA challenge to the SFEIS/FEIS and ROD, and balancing the policies of finality of judgments and of justice, the court concludes that Defendants' motion to dissolve the injunction within the 1999 Order of Dismissal should be granted because Defendants have complied with its terms and continued application would no longer be equitable.
In case 1:08cv570, Plaintiffs challenge the SFEIS/FEIS on two grounds. (See Doc. 21.) First, they contend that Defendants violated NEPA by not considering the effect the Northern Beltway would have on global climate change through the production of greenhouse gases. Second, they contend that Defendants failed to account for the impact of two future, proposed connecting road construction projects, the Southern Loop and Airport Connector, not contained in the current project. Each is addressed below.
Because claims brought under the APA are adjudicated on the basis of an existing administrative record, they are properly decided on summary judgment. Citizens for the Scenic Severn River Bridge, Inc. v. Skinner, 802 F.Supp. 1325, 1332 (D.Md.1991), aff'd, 972 F.2d 338 (4th Cir.1992); see also Pit River Tribe v. U.S. Forest Serv., 469 F.3d 768, 777 (9th Cir. 2006); 10B Wright, Miller & Kane, Federal Practice and Procedure § 2733 (3d ed. 2007). The administrative record, subject to any supplementation permitted by the court, serves as the complete factual predicate for the court's review. Krichbaum v. Kelley, 844 F.Supp. 1107, 1110 (W.D.Va. 1994), aff'd, 61 F.3d 900 (4th Cir.1995). To prevail on summary judgment, a party must identify facts—or factual failings—in the administrative record that support its claims under NEPA and the APA. See id. Thus, summary judgment is appropriate where there is no genuine issue of material fact whether the agency violated NEPA and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
Before reaching the merits, a preliminary matter must be resolved: Defendants' motion to strike appendices Plaintiffs filed to supplement the record.
Federal Defendants move to strike several documents Plaintiffs attached to their motion for summary judgment and reply brief, specifically appendices 1, 5, 8, 9, 13, and 16 through 22. (Doc. 41 at 1-2.) Federal Defendants contend that Plaintiffs have not demonstrated that the extra-record documents fall within any exception to the record review rule. Though conceding that the APA generally limits judicial review to the administrative record, Plaintiffs contend that extra-record evidence should be considered in this case for three reasons: (1) to demonstrate that the agency failed to consider factors relevant to its final decision, (2) the case is complex and involves technical issues, and (3) there was evidence arising after the final agency action demonstrating that the decision is erroneous. These factors are especially applicable, Plaintiffs argue, in NEPA cases, where the issue is whether the agency properly considered all relevant factors. (Doc. 35 at 13.)
Under the APA, "the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court." Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973) (per curiam). The Supreme Court has noted two situations where extra-record material may be admitted: (1) where there is a "strong showing of bad faith or improper behavior" and (2) where "the bare record [does] not disclose the factors that were considered or the Secretary's construction of the evidence." Overton Park, 401 U.S. at 420, 91 S.Ct. 814.
In addition, the Fourth Circuit has "acknowledg[ed] the importance of extra-record evidence in NEPA cases to inform the court about environmental factors that the agency may not have considered." Ohio Valley Envtl. Coalition, 556 F.3d at 201. Indeed, "in the NEPA context, `courts generally have been willing to look outside the record when assessing the adequacy of an EIS or a determination that no EIS is necessary.'" Id. (quoting Webb v. Gorsuch, 699 F.2d 157, 159 n. 2 (4th Cir.1983)). This is due in part to the fact that "a NEPA suit is inherently a challenge to the adequacy of the administrative record," which is subject to challenge by the evidence the agency failed to consider. Id. Not surprisingly, therefore, district courts
Plaintiffs' appendix 1 is a fact sheet from the EPA entitled "Greenhouse Gas Emissions from a Typical Passenger Vehicle." Plaintiffs contend this fact sheet provides a simple formula for quantifying increased greenhouse gas emissions based upon vehicle miles traveled that should have been used in the SFEIS/FEIS. According to Plaintiffs' argument, because the SFEIS/FEIS evaluated vehicle miles traveled for the Northern Beltway but failed to apply this formula, all relevant factors were not considered. Federal Defendants argue that, because the broader decision not to evaluate greenhouse gases was reasonable, there was no need to consult such data. Because Plaintiffs allege that Defendants failed to consider all relevant factors in arriving at its decision not to evaluate greenhouse gases, the court will consider this document, and Federal Defendants' motion to strike will be denied.
The remaining challenged appendices all involve the proposed Airport Connector.
The court finds that, although there appears to be some duplication between the challenged appendices and record evidence (compare app. 12 (recording the minutes and vote at a June 15, 2005, NCTA meeting to study the Airport Connector as a toll road) with app. 13 (acknowledging the June 15, 2005, NCTA vote)), these documents will be considered in support of Plaintiffs' claim that the impact of the
Plaintiffs also seek, however, to have the court draw inferences from statements of those in attendance at various meetings reflected in the appendices and from the omission of these documents (which Defendants assert they did not rely upon) to conclude that, despite Defendants' representations, Defendants were engaged in a coordinated effort to secure funding for the Airport Connector in the near future and therefore omitted the project from the SFEIS/FEIS solely out of concern that its inclusion would delay approval of the Northern Beltway. To the extent Plaintiffs seek to argue a bad faith exception to the record evidence rule, the court finds these documents inadequate for that purpose. See Overton Park, 401 U.S. at 420, 91 S.Ct. 814 (requiring a "strong showing" of bad faith). Rather, as discussed below, these documents demonstrate only that Defendants were coordinating with NCTA in the event the Airport Connector ever received funding in the future. They do not show, much less make a strong showing, that Defendants were scheming to avoid analysis of the Airport Connector in the SFEIS/FEIS and thereby circumvent their NEPA obligations.
For the above reasons, therefore, Defendants' motion to strike Plaintiffs' extrarecord appendices will be denied.
Plaintiffs seek summary judgment on their claim that Defendants' failure to evaluate greenhouse gas emissions in the SFEIS/FEIS violated NEPA's requirement that the agencies evaluate indirect effects and cumulative impacts of the proposed action. (Doc. 21 at 11-14.) Plaintiffs argue that merely because greenhouse gas emissions may affect global climate change only slightly does not abrogate the agencies' requirement to evaluate it as an unknown or uncertain impact under Council on Environmental Quality ("CEQ") regulations. (Doc. 21 at 11.) Moreover, Plaintiffs argue, the SFEIS/FEIS concludes that the Northern Beltway, when viewed with other projects, will increase vehicle miles traveled in Forsyth County and will result in an increased release of greenhouse gases. Finally, Plaintiffs cite to proposed EPA reporting regulations for businesses and an analysis for vehicle greenhouse gas emissions contained in the EPA's "Greenhouse Gas Emissions from a Typical Passenger Vehicle" in appendix 1. Employing such analyses, Plaintiffs contend, "would have allowed the decision-maker and the public to understand the correlation between new highway construction and the problem of global climate change." (Doc.39 at 7.)
State and Federal Defendants have filed cross-motions for summary judgment. State Defendants assert that summary judgment is appropriate because greenhouse gas evaluation is not mandated by NEPA, air quality review agencies were consulted in order to determine the scope of review for the project, and public comment regarding the omission of greenhouse gas analysis was adequately addressed. (Doc. 28 at 29-36.) Federal Defendants
Under NEPA, Defendants had an obligation to take a "hard look" at "any adverse environmental effects" of the project. 42 U.S.C. § 4332(2)(C). The CEQ regulations explain that these include "indirect effects," which are those that "are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable." 40 C.F.R. § 1508.8.
"[I]nherent in NEPA and its implementing regulations is a `rule of reason,' which ensures that agencies determine whether and to what extent to prepare an EIS based on the usefulness of any potential new information to the decisionmaking process." Dep't of Transp. v. Pub. Citizen, 541 U.S. 752, 767, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004); see Coalition on Sensible Transp., Inc. v. Dole, 826 F.2d 60, 66 (D.C.Cir.1987) ("[T]he NEPA process involves an almost endless series of judgment calls.... The line-drawing decisions necessitated by this fact of life are vested in the agencies, not the courts."); 40 C.F.R. § 1500.1(b) ("NEPA documents must concentrate on the issues that are truly significant to the action in question, rather than amassing needless detail."). NEPA "does not require agencies to analyze the environmental consequences of alternatives it has in good faith rejected as too remote, speculative, or ... impractical or ineffective." Colo. Envt'l Coalition v. Dombeck, 185 F.3d 1162, 1174 (10th Cir. 1999) (quoting All Indian Pueblo Council v. United States, 975 F.2d 1437, 1445 (10th Cir. 1992)).
The SFEIS/FEIS devotes approximately twenty pages to analysis of air quality issues. (SFEIS/FEIS, vol. 1, at 3-50 to 3-53, 4-85 to 4-102.) Here, Defendants involved EPA, the North Carolina Division of Air Quality, and the Forsyth County Environmental Affairs Department in the initial scoping of the NEPA process. (SFEIS/FEIS, vol. 3, app. D, sec. 6; AR
The SFEIS/FEIS also concluded that the Northern Beltway complies with the Clean Air Act's requirement that the project conform to the approved State Implementation Plan (an EPA-approved plan for complying with federal law and mitigating air quality impacts). See 40 C.F.R. §§ 51.854, 51.858 to 51.860. As noted in the SFEIS/FEIS, this conformity is "intended to ensure that a state does not undertake federally funded or approved transportation projects, programs, or plans that are inconsistent with the state's obligations to meet and maintain the NAAQS." (SFEIS/FIES vol. 1 at 4-93.) Thus, even with the potential additional vehicle miles traveled, the levels of these six pollutants will be less than the caps set in the state implementation plan. (Id. at 4-94 to 4-102.)
During the public comment period, Plaintiffs submitted comments to the SFEIS/FEIS (see ROD app. C), contending that vehicle miles traveled from the Northern Beltway would increase up to seven percent and cause a detrimental effect on global warming. FHWA responded in the ROD as follows:
(ROD at 57.)
NEPA requires an analysis of air quality. See 40 C.F.R. §§ 1502.16, 1508.8(b). However, it does not expressly refer to climate change or greenhouse gas emissions. Nor are Plaintiffs able to identify any case holding that NEPA requires analysis of the potential impact of greenhouse gas emissions on overall global climate change in connection with a proposed highway project. Plaintiffs rely, rather, on Massachusetts v. EPA, 549 U.S. 497, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007), and Center for Biological Diversity v. National Highway Traffic Safety Administration, 538 F.3d 1172 (9th Cir.2008), both of which discuss greenhouse gases and global climate change in other contexts. In the former, the Supreme Court held that EPA acted arbitrarily and capriciously in rejecting a rulemaking petition seeking to require it to regulate greenhouse gas emissions for new motor vehicles under the Clean Air Act. 549 U.S. at 534-35, 127 S.Ct. 1438. Plaintiffs here seize upon the Court's characterization of a "well-documented rise in global temperatures [that has] coincided with a significant increase in the concentration of carbon dioxide in the atmosphere" and note that "[r]espected scientists believe the two trends are related." Id. at 504, 127 S.Ct. 1438. In the latter case, the Ninth Circuit held that the National Highway Traffic Safety Administration acted arbitrarily and capriciously in failing to set certain standards for reductions of greenhouse gas emissions from light trucks. 538 F.3d at 1200. Here, too, Plaintiffs point to the court's discussion of the environmental effects of global warming cited by various studies made a part of the record in that case.
These two cases are readily distinguishable and cannot be read to impose a duty on Defendants to consider the potential contribution a federal highway project may have to global climate change. Plaintiffs' challenge is more like that raised in Audubon Naturalist Society of The Central Atlantic States, Inc. v. U.S. Department of Transportation, 524 F.Supp.2d 642, 708 (D.Md.2007). There, plaintiffs alleged a violation of NEPA in a federal highway project for defendants' failure to consider its impact on global climate change. The court found that the government agencies did consider this issue but concluded that analysis of greenhouse gas emissions on a project-level basis was not useful because no national regulatory thresholds had been established. Id. The court concluded that the defendants did not act arbitrarily or capriciously in concluding that no mitigation was needed "for the supposed impacts of a single stretch of highway on the global problem of climate change."
Plaintiffs also point to the 2005 EPA fact sheet submitted as appendix 1, which sets forth a formula for calculating greenhouse gas emissions for passenger vehicles. However, EPA was consulted during the scoping of the project and allowed to comment upon the SFEIS/FEIS. (See, e.g., ROD app. C.) Under NEPA, EPA is the agency charged with determining whether a federal activity will adversely impact the "public health or welfare or environmental quality." 40 C.F.R. 1504.1(b). At no time, however, did EPA suggest the need to study greenhouse gases. Additionally, it is not reasonable to expect Defendants to be on notice of the 2005 EPA document, especially where Plaintiffs themselves were unaware of it and did not present it during the comment review period. Cf. Linemaster Switch Corp. v. EPA, 938 F.2d 1299, 1306 (D.C.Cir.1991) (finding that EPA need not comb all relevant offices for potentially relevant data). This court finds that Defendants' failure to consider this EPA document was reasonable in light of its ROD explanation (see ROD at 57) and its reliance upon two FHWA documents in the SFEIS/FEIS (see SFEIS/FEIS, vol. 1 at 4-94 (referencing Discussion Paper on the Appropriate Level of Highway Air Quality Analysis for a CE, EA/FONSI, and EIS (April 7, 1986) and Technical Advisory (T 6640.8A Oct. 30 1987))), which direct that ozone and hydrocarbon production are not susceptible to meaningful evaluation on a project basis.
Plaintiffs also contend that the SFEIS/FEIS projects that the Northern Beltway will increase vehicle miles traveled by 1.8 percent (218,000 miles traveled countywide daily) which, they argue, will increase greenhouse gas emissions. However, as Defendants point out, the increase in induced travel (defined as increased vehicle traffic due to increased roadway capacity) by the Northern Beltway alone is 1.05 percent; the 1.8 percent figure relied on by Plaintiffs encompasses the expected increase in induced travel from all reasonably foreseeable projects in the study area by 2025. (SFEIS/FEIS, vol. 1, at 4-243.) Defendants also note that Plaintiffs' argument is based solely on vehicle miles traveled and fails to consider other important variables, including increased speeds on the Northern Beltway, improved vehicle fuel economy, and the use of cleaner fuels. Citing to the FHWA's Spreadsheet Model Induced Travel Estimation (known also as "SMITE") models, the SFEIS/FEIS shows that the increase in vehicle miles traveled will largely be absorbed by the new freeway components and shifting vehicles
Based on the above, the court concludes that Defendants reasonably considered the major environmental consequences of the Northern Beltway and have provided a rational basis for their decision not to quantitatively analyze the potential effect greenhouse gas emissions may have on global climate change. See Hughes River/Johnson, 165 F.3d at 288. Thus, the court finds, the omission of further analysis of greenhouse gases did not violate NEPA.
Plaintiffs allege that two road projects, the Southern Loop and the Airport Connector, should have been considered in the SFEIS/FEIS. Plaintiffs argue that both projects are cumulative actions that should be analyzed pursuant to 40 C.F.R. § 1508.25. Alternatively, Plaintiffs contend that both projects are reasonably foreseeable and thus should be acknowledged and analyzed pursuant to 40 C.F.R. § 1508.7. Defendants argue that both projects are too indefinite to constitute a proposal and consequently there is no obligation to assess their impact on the environment as a cumulative action. Defendants also contend that neither project is reasonably foreseeable because neither is funded, developed or imminent. (Doc. 31 at 35; Doc. 28 at 43.)
CEQ regulations provide that "[c]umulative actions, which when viewed with other proposed actions have cumulatively significant impacts," should be discussed in the same environmental impact statement. 40 C.F.R. § 1508.25(a)(2). An action is not required to be considered within a single environmental impact statement, however, unless it is sufficiently definite to constitute a "proposal." Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 20, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976); Mooreforce, 243 F.Supp.2d at 441 (holding that "[p]rojects that are not imminent are not considered proposals, and therefore, do not require an analysis of cumulative impacts"); see 42 U.S.C. § 4332(2)(C) (requiring detailed statement of environmental impacts in recommendations on proposals). A proposal exists "at that stage in the development of an action when an agency subject to [NEPA] has a goal and is actively preparing to make a decision on one or more alternative means of accomplishing that goal and the effects can be meaningfully evaluated." 40 C.F.R. § 1508.23. As noted, the scope of an environmental impact statement is committed to agency discretion as it implicates agency expertise. See Kleppe, 427 U.S. at 412-13, 96 S.Ct. 2718 (noting agency action should be upheld regarding the scope of the project absent evidence that is arbitrary and capricious); N.C. Alliance, 151 F.Supp.2d at 684 (noting agency given "considerable discretion" in scoping).
As noted earlier, an agency must also consider the cumulative impact "which results from [the] incremental impact of the action when added to other past, present, and reasonably foreseeable future actions."
In order to assess whether the effects of the Southern Loop and the Airport Connector should have been considered by Defendants, the different designations applied to highway projects and their associated ramifications must be considered. Generally, from the more visionary to the more specific, they are as follows:
With this background in mind, the court turns now to an examination of both road projects.
The Southern Loop in concept would be a ten-mile, four-lane divided highway connecting U.S. 311 to South Stratford Road. (Winston-Salem/Forsyth County Urban Area Thoroughfare Plan, Technical Report, Feb. 28, 2002, AR 18829.) It is not identified as a contemplated urban loop project in the Highway Trust Fund Act, N.C. Gen.Stat. § 136-180(a).
Defendants provided the following responses to Plaintiffs' comments that the SFEIS/FEIS should have considered the Southern Loop:
(ROD at 51.)
Plaintiffs point to the length of time that the Southern Loop has been discussed as an indication of the longevity, and implicitly the foreseeability, of the project such that it should have been included in the SFEIS/FEIS. (Doc. 21 at 19.) The length of time a project has been discussed, however, is not controlling. In fact, mere discussions even over a long period do not necessarily mean that a project has the funding or necessary studies performed such that a decision is fairly imminent. Plaintiffs seem to appreciate the weakness of their argument because their reply brief focuses solely on the foreseeability
The court finds that the Southern Loop fails to constitute a proposal and cannot be deemed to be a cumulative action. See Kleppe, 427 U.S. at 410 n. 20, 96 S.Ct. 2718. The court further finds that it is not a reasonably foreseeable future action under 40 C.F.R. § 1508.7. Defendants, therefore, did not violate NEPA by failing to assess its cumulative impacts.
The Airport Connector, also referred to as the I-73/I-74 Connector, is contemplated as an east-west four-lane divided highway running from Winston-Salem (connecting to the Eastern Section of the Northern Beltway) to Greensboro in the vicinity of the Piedmont Triad International Airport. (SFEIS/FEIS, vol. 2 at fig. 1-6.) In contrast to the Southern Loop, it has been the subject of further activity. The project is included in the Winston-Salem Thoroughfare Plan/CTP, the Winston-Salem 2030 LRTP, the 2006-2012 STIP, and the Winston-Salem and Greensboro MTIPs. In addition, the N.C. Board of Transportation identified the project as a "strategic corridor" in the Strategic Highway Corridor Vision Plan, the state's official map adopted by the N.C. Board of Transportation to identify corridors for long-term potential to serve passengers and freight movement. (Leggett Decl. ¶ 15; Doc. 39, app. 19.) Finally, the Northern Beltway is also being configured to accommodate a potential interchange with the Airport Connector, should the project ever materialize. Each of these potential indicators of foreseeability and/or proposed action will be considered.
Defendants provided the following responses to Plaintiffs' comments that the Airport Connector should have been considered in the SFEIS/FEIS:
(ROD at 51.)
The project's inclusion in the Winston-Salem Thoroughfare Plan/CTP and Winston-Salem and Greensboro MPO LRTPs are not argued as strong indicators of foreseeability. These are essentially visionary documents and require no source of funding where a project is listed for illustrative purposes. N.C. Gen.Stat. § 136-66.2; 23 U.S.C. § 134(i)(2)(C). The same is true of the project's listing as a "strategic corridor," as that plan is not financially constrained. (Leggett Decl. ¶ 15.)
Plaintiffs point to a June 15, 2005, meeting of the North Carolina Turnpike Authority ("NCTA"), which voted to perform a preliminary study of the Airport Connector "for feasibility purposes" as a potential turnpike project. (Doc. 39, app. 7.) Plaintiffs note that the NCDOT Secretary presided over the NCTA meeting when the vote to study funding occurred. (Id.) In a
Plaintiffs argue that inclusion in the 2006-2012 STIP and in the Winston-Salem and Greensboro MTIPs indicates its foreseeability such that it should have been included in the SFEIS/FEIS. (Doc. 21 at 19.) As Federal Defendants note, however, the project was listed in the STIP as "Programmed for Planning and Environmental Study Only by the Turnpike Authority." (Doc. 39, app. 12; SFEIS/FEIS, vol. 1 at 1-22, 6-110.) This listing, they argue, "in no way leads to the conclusion that further development of the project would be funded so as to make the Airport Connector reasonably foreseeable." (Doc. 31 at 40.) Indeed, where, as here, state law permits a listing in a STIP of a project beyond four years, N.C. Gen.Stat. § 143B-350(f)(4), its listing (for this limited purpose) is by regulation for illustrative or informational purposes only. 23 U.S.C. § 135(g)(4)(F). Accordingly, FHWA is not required to select any project, such as the Airport Connector, from the illustrative list. 23 U.S.C. § 135(g)(4)(G)(i).
The Winston-Salem MTIP and the Greensboro MTIP also list the Airport Connector as "programmed for planning and environmental study only." (Doc. 39, app. 15, 17.) Here, too, the listing as a project in an MTIP for this limited purpose, thus meaning it is unfunded for construction and will not be completed within the four-year planning period, renders it an illustrative listing only. 23 U.S.C. § 134(j)(2)(B) & (D); 23 C.F.R. § 450.324(a). Thus, the Airport Connector is not listed in the STIP or MTIPs as a financially constrained project.
Plaintiffs point further to several comments of Pat Ivey ("Ivey"), engineer for NCDOT, to argue that Defendants intend to move forward with the project. For example, in a meeting with the Town of Kernersville (which lies between the Northern Beltway and the Piedmont Triad International Airport) Ivey discussed the potential Airport Connector and commented that it may be possible to address the project "as a supplement" to the SFEIS/FEIS if the Airport Connector were ever funded. (Doc. 39, app. 4.) Plaintiffs seize on the Kernersville meeting agenda that stated that "[a] future interchange location should be considered now as part of this Beltway EIS document." (Doc. 39, app. 5.) However, in 2005 Ivey is reported to have stated that "any additions or deletions at this point would cause significant delays" and urged that connectivity concerns be addressed in the future with a supplemental resolution. (Doc. 39, app. 6.) The court finds that none of these statements indicates that the project is imminent or constitutes a proposal.
Plaintiffs rely upon Western North Carolina Alliance v. N.C. Department of Transportation, 312 F.Supp.2d 765 (E.D.N.C.2003), to argue that NEPA requires consideration of the Airport Connector (and Southern Loop) despite the
The court finds that the listing of the Airport Connector in the various transportation plans does not make it reasonably foreseeable or rise to the level of a proposal for purposes of inclusion in the SFEIS/FEIS for the Northern Beltway. The project has received no source of funding for construction in any plan in which it is listed. Though a feasibility/environmental study has been approved for the project, it is not even currently funded. Nor is the project listed in the Highway Trust Fund Act, N.C. Gen.Stat. § 136-180. Though it is listed in the Winston-Salem and Greensboro MTIPs and the STIP, its listing is by regulation for informational purposes only. Thus, the Airport Connector has many hurdles to leap before the requisite agencies will be making any decision regarding its ultimate development. As such, insufficient information exists as to its development that would permit decisionmakers to evaluate meaningfully its effects. See 40 C.F.R. § 1508.23.
Finally, Plaintiffs point to the fact that an interchange of the Northern Beltway has been configured to accommodate the Airport Connector in the event it is ever approved and constructed.
The court cannot say that the Airport Connector is sufficiently likely to occur such that Defendants should have taken it into account in reaching their decision. See Marsh, 976 F.2d at 767. Rather, it remains speculative and contingent. The court finds, therefore, that Defendants had no obligation to include the Airport Connector in the Northern Beltway SFEIS/FEIS. As such, Plaintiff's motion for summary judgment on this issue is denied and Defendants' motion is granted.
Finally, Plaintiffs seek in their reply brief to "preserve" their challenge to the Order of Dismissal in case 1:99cv134 by adopting their arguments from their briefing therein (Doc. 127 (case 1:99cv134)). (Doc. 39 at 23-24.) As Defendants rightly pointed out at oral argument, Plaintiffs never raised these issues in their complaint in case 1:08cv570, and thus there is no argument to "preserve" in this case. To the extent Plaintiffs seek to
For the foregoing reasons,
IT IS THEREFORE ORDERED as follows:
A Judgment in accordance with this Order will be filed contemporaneously in each case.
To demonstrate standing, a party must have an injury-in-fact that is fairly traceable to the defendant's conduct and likely to be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Under the APA, parties "adversely affected or aggrieved by an agency action within the meaning of a relevant statute" may seek judicial review. 5 U.S.C. § 702; see also Fed. Election Comm'n v. Akins, 524 U.S. 11, 19, 118 S.Ct. 1777, 141 L.Ed.2d 10 (1998) (the word "aggrieved" shows congressional intent to "cast the standing net broadly"). Here, members of the Plaintiff associations include property owners who will have their property bisected by the highway project, who will have their homes taken, and who will lose the pastoral feel of their property as a result of the highway project approved by the ROD. See, e.g., Doc. 19, app. 1 (stating project will take 21 acres of property and bisect 92-acre family farm); Doc. 19, app. 3 (noting home will be taken by Northern Beltway and bisect 12-acre tract of land); Doc. 19, app. 11 (claiming Northern Beltway will cross family property three times). As such, the court finds that Plaintiffs' alleged injuries are concrete in nature and traceable to the highway project; additionally, a favorable ruling could redress their claimed injuries because Defendants could be required to redo the environmental impact statement and reconsider whether to approve the project. Plaintiffs therefore have standing to present their current challenges.
40 C.F.R. § 1508.8(b). "Effects and impacts as used in these regulations are synonymous." Id.
40 C.F.R. § 1508.7.
