NEPA

Purpose and Need

The plaintiff argued that FHWA and SCDOT inappropriately defined the purpose of the project as an “interstate link,” which resulted in a biased alternatives analysis that rejected non-interstate highway alternatives. The court held that the challenge to the statement of purpose and need was untimely because it was essentially a challenge to the 2008 FEISs and RODs. The court explained that any challenge to the 2008 environmental documents exceeded the applicable 6-year statute of limitations, as the lawsuit was filed in 2017.

Supplementation

The plaintiff asserted that FHWA and the Corps should have supplemented FHWA’s 2008 FEISs. A supplemental EIS is required when there are either substantial changes in the proposed action that are relevant to environmental concerns, or there are significant changed circumstances or new information that are relevant to environmental concerns and bear on the proposed project or its impacts. The court rejected the plaintiff’s multiple arguments for supplementation:

• Possibility of Tolling. The plaintiff claimed that the agencies changed the project to potentially include tolls, which represented a fundamental change in the project and its environmental impacts. The court found that there was no final federal agency action authorizing construction of tolls on I-73. Even though the environmental documents acknowledged the possibility of tolling and FHWA had conditionally accepted SCDOT’s application to designate I-73 as a toll project, SCDOT had not taken steps to obtain final approval from FHWA, and neither FHWA nor the Corps had authorized tolling as part of the project.
• New Information about Wetlands Impacts. The plaintiff argued that the Reevaluations disclosed new information pertaining to the project’s wetlands impacts, which required a supplemental EIS. However, the court held that the new information about wetlands was not significant enough to require a supplemental EIS: the Reevaluations indicated that while wetlands and stream impacts increased in some areas, they decreased in other areas, and the total impacts actually decreased. The court also found that the changes to wetland and stream impacts identified in the Reevaluations were largely due to changes in how the aquatic resources were classified and delineated, rather than actual changes in the project or circumstances on the ground—such changes in the legal status of a resource, as opposed to physical changes on the ground, did not constitute a changed circumstance requiring supplementation.
• New Information about Non-Selected Alternative. The plaintiff also asserted that a supplemental EIS was warranted because expert reports that it had submitted to the agencies in 2011 and 2012 allegedly called into question the analysis in the FEISs. These reports concluded that upgrading existing roads could meet the region’s transportation needs with fewer impacts and at a lower cost. The court found that the reports did not contain any new information about the selected alternative; rather, they merely contained “novel analyses . . . of non-selected alternatives” that were “repackaged versions of criticism” that the plaintiff had raised earlier in the NEPA process. The court further explained that a supplemental EIS is not required for new information about a non-selected alternative: “Plaintiff’s argument for supplementation fails because it is premised on the reports containing new information not about the chosen action, but about impacts of alternatives FHWA did not choose. . . . If all it took to trigger a SEIS was for a dissatisfied party to commission a study regarding a rejected or novel alternative, NEPA review would never be finished. Because Plaintiff’s reports relate to alternatives that the Agencies did not select, rather than I-73 itself, NEPA does not require supplementation.”
• Noise Impacts from Additional Traffic and New Residences. The plaintiff argued that a supplemental EIS was required due to additional noise impacts that would result from new residential construction near the highway alignment and updated traffic models that predicted an increase in truck traffic on I-73. The Reevaluations considered both of these factors, identified additional noise impacts at residential receptors, and concluded that noise barriers would not be cost-effective mitigation and there was no other reasonable mitigation. The court held that FHWA reasonably determined that the additional noise impacts were not so significant as to change the appropriate mitigation response, and therefore a supplemental EIS was not required.
• Air Quality Impacts from Additional Traffic. The plaintiff also claimed that the increase in predicted truck traffic on I-73 would significantly increase air quality impacts. Modeling in FHWA’s Reevaluations indicated that stricter federal vehicle regulations would cause emissions of mobile source air toxics (MSAT) to decrease substantially from existing levels under both the no-action alternative and with I-73. The Reevaluation for the northern section of I-73 concluded that there would be no appreciable difference in MSAT emissions between the no-build alternative and the selected alternative. The Reevaluation for the southern portion of I-73 concluded that MSAT emissions for the selected alternative could be higher than the no-build alternative, but would be offset by lower emission rates due to increased traffic speeds and reduced congestion on local roads. The court concluded that FHWA had thoroughly evaluated the air quality impacts of increased truck traffic and reasonably determined that they were not significant; therefore, a supplemental EIS was not required for this issue.
• Induced Growth. The plaintiff asserted that supplementation was required because the project would induce development. The court held that this potentiality was not new information because it was analyzed already in the FEISs, and therefore a supplemental EIS was not required.

Section 4(f)

The plaintiff asserted that FHWA should have prepared an updated Section 4(f) analysis due to increased noise, vibration, and air quality impacts. The Reevaluations determined that the only additional noise impacts were to residential properties, not to any parks, refuges, or historic sites protected by Section 4(f). Further, the court held that potential air quality and other impacts were adequately evaluated, and an updated Section 4(f) analysis was not required for the same reasons a supplemental EIS was not required under NEPA.

Clean Water Act Section 404

Duty to Independently Analyze Impacts

The plaintiff argued that the Corps violated the Clean Water Act by relying on FHWA’s NEPA analysis instead of performing its own independent evaluation when issuing the Section 404 permit. The court held that the Corps was not only permitted to rely on FHWA’s FEISs but was encouraged to do so by Congress. The court explained that under 23 U.S.C. § 139, federal agencies are required to rely on a single environmental document for federal approvals for highway projects to the maximum extent practicable. The court found that the Corps clearly explained how its decision was based upon the alternatives analysis in FHWA’s FEISs. The court also found that the record demonstrated the Corps had played an active role in the NEPA process as a cooperating agency: the Corps attended dozens of meetings with FHWA, SCDOT, and other agencies at which the Corps reviewed and critiqued draft statements of the project’s purpose and need and insisted that certain alternatives be considered in the NEPA process in order to support its future Section 404 permitting decision.

Statement of Project Purpose

Relatedly, the plaintiff argued that the Corps impermissibly based its statement of overall project purpose on SCDOT’s “overly narrow” statement of purpose and need, such that non-interstate alternatives were rejected as not meeting the project’s purpose of being an “interstate link.” The court held that the Corps rightfully considered the applicant’s stated purpose and need in its permitting decision. The court further held that it was reasonable for FHWA and SCDOT to define the project as an “interstate link” because Congress had passed multiple laws that supported planning and funding for a new interstate highway between North Carolina and Myrtle Beach. The court concluded that “the Corps could not reasonably reject FHWA and SCDOT’s deference to congressional intent,” and therefore the Corps had not defined the project’s purpose too narrowly as a mere pretense to evade environmental review of non-interstate alternatives.

Alternatives Analysis

The plaintiff also argued that the FEISs “overstated the environmental impacts of upgrading existing roadways” and that the Corps erred in accepting this biased alternatives analysis. The court rejected the plaintiff’s assertions that the analysis was flawed by relying on broad-scale wetlands data (rather than site-specific analysis) and assuming a 600-foot corridor for the project. The court found that the agencies reasonably explained why the wetlands data was the best tool for analyzing wetlands impacts in a large (2,200 square miles) study area. The court also found that the agencies’ use of a conservative 600-foot corridor was reasonable for screening alternatives given the level of design at the time. Finally, the court observed that the wetlands data, corridor width, and computer program algorithm were applied consistently to all alternatives and thus did not skew the alternatives analysis.

Least Environmentally Damaging Practicable Alternative

The plaintiff challenged the Corps’ determination that the selected alternative for the project was the LEDPA. The plaintiff claimed that improving existing highways would have less impacts on wetlands and other environmental resources and would have a lower cost. The court explained that the Corps reasonably determined that improving existing highways was not practicable because it would not meet the project purpose of creating an “interstate link” to Myrtle Beach. In addition, the court noted that upgrading existing highways was comparable to the no-build alternative studied in the FEISs, which would not meet the project needs of serving future transportation demand and improving hurricane evacuations. Furthermore, the court found that upgrading existing roads to an interstate would not be feasible because such a plan did not account for “the obvious impracticability” of building an interstate through small towns that were bisected by the existing roads. Finally, the court noted that SCDOT had explained why it was not reasonable to compare its own cost estimates for the project (which were based on site-specific engineering design) to the plaintiff’s cost estimates for improving existing highways. The court concluded that the Corps reasonably explained that the project was the LEDPA based on the extensive alternatives screening and analysis for the NEPA process, and the plaintiff did not show that the Corps had made a clear error of judgment.