NEPA Alternatives Screening – Changed Conditions. The plaintiffs contended that FHWA and NCDOT erred by failing to revisit a Transportation System Management (TSM) alternative that had been eliminated earlier in the original EIS. In essence, they claimed that the TSM alternative had become a reasonable alternative because travel conditions in the project corridor had improved, so that improvements to the existing arterial (US 74) could meet the Purpose and Need. The court found that FHWA and NCDOT had properly concluded that the TSM Alternative still did not meet the Purpose and Need: “In the initial DEIS, defendants eliminated, among other possible alternatives, TSM improvements because they would not meet the project needs. In the DSFEIS, defendants acknowledged the improvement in travel times and average speeds on the U.S. 74 corridor as a result of TSM improvements, but defendants also noted that the current average speeds still did not meet the project need and that future growth would lead to increased traffic volumes and more congestion. … Defendants’ reliance on prior explanations for ruling out certain alternatives … is not arbitrary and capricious or irrational when the basis for eliminating those alternatives remains valid. … Defendants eliminated TSM improvements because they would not meet the project need of creating a high-speed corridor, with average speeds of at least 50 miles per hour. Although the average peak speed on U.S. 74 has improved considerably, the TSM improvements still have not met the project need, and defendants reasonably eliminated that alternative in the DSFEIS.” No Build – Stale Data. The plaintiffs claimed that the alternatives analysis in the SEIS was flawed because the SEIS continued to use the 2007 No Build conditions rather than updating the No Build to reflect 2012 conditions. FHWA and NCDOT explained that, because there was data showing no growth in traffic volumes between 2007 and 2012, it was reasonable to assume that an updated No Build forecast “would generally be equal” to the 2007 No Build forecast. While the court expressed some skepticism about this assumption, it found that “defendants repeatedly tested their forecasts with sensitivity analyses using new data and concluded that their forecasts remained valid.” Further, the court found that FHWA and NCDOT had responded to an expert’s comments in which the expert challenged the use of the 2007 No Build forecasts. Based on this record, the court upheld the use of the 2007 No Build forecasts. Traffic Forecasts – No Build vs. Build Comparison. The plaintiffs claimed, as they had in their original lawsuit, that the traffic forecasts were flawed because the No Build and Build forecasts were based on a single set of socio-economic forecasts. The plaintiffs pointed to the district court’s decision in the Gaston East-West Connector case (Catawba Riverkeeper Foundation v. NCDOT, decided March 13, 2015), where the court had found that the use of a single set of socio-economic forecasts violated NEPA. The court found that the forecasts in this case were not flawed, because they differed “in a critical fashion” from the forecasts used in the Catawba case: “The socioeconomic data in that case, however, assumed construction of the Garden Parkway in the top-down approach and merely reallocated the same projected growth in the No Build and Build conditions through the use of a gravity model. Here, in contrast, the same socioeconomic data did not include the Monroe Bypass; therefore, the [modeling] represented the No Build scenario. … This new analysis, and its later use in the updated ICE [indirect and cumulative effects] analysis, properly represented the No Build scenario.” Indirect Effects. The plaintiffs challenged the analysis of indirect effects in the SEIS, claiming that it failed to account for the “growth inducing impact of the Bypass.” The court found that FHWA and NCDOT had specifically analyzed the amount of growth that would occur in the region if the Bypass were not built, and had reasonably concluded that the amount of growth under the No Build would be the same as under the Build condition.

Cumulative Effects . The plaintiffs also challenged the analysis of cumulative effects by failing to consider the effects of certain other road improvements planned for the Charlotte region, including “superstreet” improvements along US 74 and the widening of I-485 (with which US 74 and the Bypass intersect); the court held that the cumulative effects analysis did include an analysis of these improvements, citing specific pages in the cumulative effects analysis. The plaintiffs also argued that the cumulative effects analysis was flawed because it failed to consider certain projects that were outside the geographic boundaries of the cumulative effects analysis; the court rejected this argument because it found that plaintiffs had not shown that the definition of the cumulative effects study area was arbitrary. Integrity of NEPA Process. The plaintiffs claimed that “plaintiffs argue that defendants “[f]ostered a [c]limate of [m]isinformation and [u]ndermined the NEPA [p]rocess.” The court considered each of the alleged misstatements, and found no evidence that FHWA and NCDOT had actively misled the public. Further, the court found that FHWA and NCDOT had responded in detail to public comments on the Supplemental DEIS. Therefore, the court rejected the plaintiffs’ claim that the defendants had fostered a climate of misinformation in the NEPA process. Single FEIS and ROD. The plaintiffs claimed that FHWA and NCDOT had violated NEPA by issuing the Supplemental FEIS and ROD as a single document. Section 1319 of MAP-21 (codified in 42 USC 4332a) required FHWA to issue the FEIS and ROD as a single document, except under certain conditions, including situations where “there are significant new circumstances or information relevant to environmental concerns and that bear on the proposed action or the impacts of the proposed action.” Noting the absence of any case law interpreting this provision, the court held that “significant new circumstances” has the same meaning in Section 1319 as in the standard for preparing a Supplemental EIS. Therefore, the court held that “significant new circumstances” preclude issuing a combined FEIS and ROD only if those circumstances “rise to the level of requiring a supplemental EIS.” The court then considered the new information cited by the plaintiffs, which involved new data from 2014 regarding traffic volumes. The court found that FHWA and NCDOT had analyzed the new information and concluded that the updated data did not change their conclusions. The court held that FHWA and NCDOT “had a rational basis for their conclusion and did not clearly err in their decision to issue a combined FSFEIS and ROD.”