NEPA

Safety Analysis. The plaintiffs claimed that the FEIS included flawed safety analysis for the project’s eastern section, which had been justified in part based on safety considerations. FHWA and NCDOT acknowledged that the safety data in the FEIS contained errors, but said the errors had been corrected in the ROD, and were not great enough to require a supplemental EIS. The changes involved “safety ratios” for existing road segments. Under NCDOT’s methodology, a ratio of greater than 1.00 indicated that a safety need existed. The changes in the ROD reduced the safety ratios for several road segments, but in for all segments except one, the ratio remained above 1.00. The court upheld FHWA’s determination that these corrections were not significant: “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.” The court also took note of the fact that FHWA had reviewed and corrected the errors in the ROD. Based on the explanation provided by FHWA, the court held that the safety analysis in the EIS was sufficient to satisfy NEPA.

Greenhouse Gas Emissions Analysis. The EIS did not include a quantitative analysis of the project’s potential to increase greenhouse gas emissions. The plaintiffs argued that a quantitative greenhouse gas emissions analysis should have been performed, because the project would increase vehicle miles traveled and thus would increase greenhouse gas emissions, thereby contributing incrementally to global climate change. The court upheld FHWA’s determination that a quantitative greenhouse gas emissions analysis was not required:

“NEPA requires an analysis of air quality. 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.”
“In the present case, Defendants clearly examined the issue of climate change and acknowledged their decision not to evaluate greenhouse gas emissions in the environmental impact statements. Defendants cited the lack of either national standards or EPA criteria or thresholds, and they concluded they could not usefully evaluate any impact on a project-level basis such as this given the interactions of the elements of the transportation system. Plaintiffs attack Defendants’ conclusion that no national standards exist for evaluating the issue, arguing that Defendants should have considered proposed EPA rules requiring annual greenhouse gas reports from certain stationary facilities. But as Defendants aptly point out, these were only proposed regulations at the time, do not apply to highway projects, and post-date the ROD. Defendants’ failure to employ them did not violate NEPA.”
“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. Under NEPA, EPA is the agency charged with determining whether a federal activity will adversely impact the “public health or welfare or environmental quality.” 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.”
“Plaintiffs also contend that the SFEIS/FEIS projects that the Northern Beltway will increase vehicle miles traveled by 1.8 percent … 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. 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…. Defendants concluded that, based on their modeling, the amount of induced travel resulting from the Northern Beltway is ‘not appreciable.’ Where an agency is making predictions based on its expertise, a reviewing court is at its most deferential. Thus, this court finds that Defendants did not violate NEPA by failing to address global climate change based on vehicle miles traveled for the project.” Segmentation. The plaintiffs claimed that two other projects – the Southern Beltway and the Airport Connector – should have been treated in the EIS as “cumulative actions” because they are “proposals” and are “reasonably foreseeable.” The court concluded that neither action was sufficiently definite to constitute a proposal, and that neither action was reasonably foreseeable.
Southern Beltway. At the time of the ROD, the Southern Beltway was included in the metropolitan area’s long-range transportation plan as an unfunded project (not part of the fiscally constrained plan). Based on the lack of funding, FHWA concluded that the project was not reasonably foreseeable. The plaintiffs contended that, despite the lack of funding, the project was reasonably foreseeable because of its long history of being considered. The court rejected that argument: “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. 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…. The court finds that the Southern Loop fails to constitute a proposal and cannot be deemed to be a cumulative action.” Airport Connector. At the time of the ROD, the Airport Connector project was included in the metropolitan area’s long-range plan and was included in the transportation improvement program (TIP) as ‘programmed for planing and environmental study’ by the North Carolina Turnpike Authority (NCTA). It also had been identified by NCDOT as a statewide strategic corridor. In addition, the Northern Beltway project was configured to accommodate a potential interchange with the Airport Connector. Nonetheless, FHWA determined that the Airport Connector was not reasonably foreseeable because construction funding had not been identified and the project was not currently being studied by NCTA. The court upheld FHWA’s decision:
“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.”
“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 record reflects that when authorizing the Northern Beltway, however, FHWA declined to include an interchange because it concluded that the Airport Connector was too speculative. That the agency left spacing for an interchange should the Airport Connector be funded and developed indicates merely smart design to avoid unnecessary rework if funding is ever authorized and the project materializes beyond the preliminary incubation stage.” Administrative Procedure Act

Administrative Record. The plaintiffs sought to have the court consider extra-record evidence – that is, documents that were not part of FHWA’s administrative record. These documents included (1) an EPA fact sheet, which the plaintiffs claimed would help to show that a greenhouse gas emissions analysis was feasible, and (2) documents that the plaintiffs claimed would show that the Airport Connector was reasonably foreseeable and should have been considered as part of the EIS for the Northern Beltway. The court agreed to consider both sets of documents, even though they were not part of FHWA’s administrative record. The court did not find that the defendants had intentionally omitted documents or shown any bad faith.

Litigation Procedure

Dissolution of Injunction. FHWA and NCDOT asked the court to dissolve an order entered in the previous lawsuit, which prohibited the agencies from implementing the project until they had completed a new NEPA study. They argued that the injunction should be automatically lifted as soon as the new study was completed. The plaintiffs opposed that motion, arguing that the injunction should remain in place until the court had reviewed the new study and determined that it had addressed the flaws found in the previous study. The court concluded that the injunction from the previous case should be dissolved upon the completion of the new study, and that any decision to re-impose an injunction should only be made as part of the new lawsuit.