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Case Law Updates on the Environment (CLUE)

Case Law Update Details

Case Title

Save Our Sound OBX, Inc. v. North Carolina DOT

Case No.

324 F. Supp. 3d 597

Court

U.S. District Court - North Carolina

State

North Carolina

Date

6/4/2018

Project

Bonner Bridge / NC 12

Project Type

Highway

Project Description

The case arose from plans to replace the Bonner Bridge, which carries North Carolina Highway 12 between Bodie and Hatteras Islands in the Outer Banks. The southern end of the Bonner Bridge lies in Pea Island National Wildlife Refuge, which extends from the northern tip of Hatteras Island to the village of Rodanthe. The North Carolina Department of Transportation (NCDOT) had concluded that the 2.5-mile bridge was approaching the end of its useful life and needed to be replaced. Beginning in the early 1990s, FHWA and NCDOT studied options to replace the Bonner Bridge and make other improvements to NC 12 between the Bonner Bridge and Rodanthe.

FHWA and NCDOT issued a final EIS and Section 4(f) evaluation in 2008, and a revised final Section 4(f) evaluation in 2009. The agencies then planned to proceed with construction in phases. Phase I involved replacement of the Bonner Bridge, while later phases would involve improvements to NC 12 south of the Bonner Bridge, in Pea Island Refuge and Rodanthe. The agencies issued a Phase I EA in May 2010 and FHWA issued a Phase I ROD in December 2010. Phase IIa involved improvements to NC 12 in Pea Island Refuge; the agencies issued a Phase IIa EA in February 2013 and FHWA issued a Phase IIa ROD in October 2013.

Phase IIb involved improvements to NC 12 in Rodanthe and the southern part of Pea Island Refuge, an area which was susceptible to breaches and erosion. The agencies issued a Phase IIb EA in December 2013, in which the preferred alternative was a 2-mile bridge in the existing NC 12 easement to replace the existing surface road (called the “existing easement bridge”). In response to litigation brought by two conservation groups, the agencies and the conservation groups entered into a settlement agreement in April 2015 that required NCDOT to seek approval for a new “jug-handle” bridge in Pamlico Sound as the preferred alternative for Phase IIb, including using good faith efforts to obtain concurrence from other agencies that it was the least environmentally damaging practicable alternative (LEDPA). The jug-handle bridge in Pamlico Sound would bypass the southern 2 miles of Pea Island Refuge, and the existing roadway for those 2 miles would be removed. Other agencies identified the jug-handle bridge as the LEDPA in June 2015, and FHWA and NCDOT issued a Revised Phase IIb EA in May 2016 and a Phase IIb ROD in December 2016.

Case Summary

Plaintiffs sued NCDOT and FHWA following FHWA’s issuance of the Phase IIb ROD, which approved construction of the jug-handle bridge in Pamlico Sound. The plaintiffs alleged that the agencies violated NEPA by failing to analyze impacts from transporting construction materials to the project site, failing to analyze socioeconomic effects on Rodanthe, and failing to reconsider beach nourishment alternatives that had previously been eliminated. The plaintiffs also claimed that the agencies’ decision was predetermined by the 2015 settlement agreement that ended the earlier lawsuit. The plaintiffs also alleged that the agencies violated Section 4(f) by failing to consider impacts on Pea Island Refuge. The court ruled in favor of the agencies and upheld the ROD. As of December 2018, an appeal was pending in the U.S. Court of Appeals for the Fourth Circuit.

Key Holdings

NEPA

Construction Impacts.  The plaintiffs argued that the agencies did not adequately consider environmental impacts from transporting construction materials to the project site. The Phase IIb ROD and EA described, for each alternative, the location of construction activity, the size of temporary construction easements, and how long construction would last. The EA also discussed any changes in construction-related impacts relative to impacts for similar alternatives analyzed in the 2008 FEIS. The court concluded that the agencies adequately analyzed construction impacts. The court noted that the administrative record indicated that construction methods would be the same for each alternative under consideration. The court explained that the agencies were not required to conduct a detailed comparative analysis of impacts from hauling construction materials where there was no basis to conclude that the alternatives differed with respect to those impacts. The court also explained that the agencies had discretion to determine the methodology for analyzing construction impacts, and NEPA did not require the agencies to consider hauling impacts separately from other construction impacts:

“The administrative record discloses affirmatively that the Agencies considered construction methods, noted that construction methods for any alternative under consideration would be the same, and chose to focus the majority of analysis at the conceptual level of ‘construction’ generally, rather than at a more specific level of ‘hauling.’ . . . [The agencies’] decision to consider ‘construction’ as the relevant unit of analysis cannot be deemed arbitrary where, in light of the agencies’ determination that construction methods would be the same for any alternative, the administrative record does not compel any conclusion that hauling, as a category distinct from construction more generally, was in itself, ‘an important aspect of the problem’ that required a separate analysis from the more general category of ‘construction’ to which it belongs.”

Socioeconomic Effects.  The plaintiffs claimed that the agencies failed to consider socioeconomic effects on the community of Rodanthe as a distinct unit. The FEIS and the Phase IIb ROD and EA discussed impacts to kiteboarding and other recreational uses in Pamlico Sound, the number of homes and business that would be relocated and the associated impacts to the county’s tax revenue, and the economic effects at the county level from removing two miles of paved road connecting Rodanthe to Pea Island Refuge. The court held that the agencies sufficiently analyzed economic and social effects. Although the plaintiffs argued that the agencies should have evaluated effects on Rodanthe separately from other parts of the county or the Outer Banks, the court explained that “the Agencies have discretion to make policy judgments as to the proper geographic unit of analysis for economic and social effects.”

Reconsideration of Beach Nourishment Alternatives.  The plaintiffs argued that the agencies should have reconsidered alternatives involving beach nourishment, which had been eliminated from detailed study prior to the 2013 Phase IIb EA. In particular, the plaintiffs claimed that new information undermined two of the agencies’ reasons for eliminating beach nourishment alternatives from detailed consideration: availability of sand and costs. First, they claimed that the agencies’ prior determination that there was not enough sand available for nourishment was undermined by a recent discovery of a new source of sand and updated erosion projections that indicated less sand would be needed for nourishment. Second, they claimed that the agencies should have discounted future costs of beach nourishment to present value. The court held that the agencies were not required to reconsider beach nourishment alternatives because there were other still-valid reasons why the agencies had determined that beach nourishment would not meet the project purpose and need. These reasons included that nourishment would not adequately protect the existing roadway from future breaches and overwash during storms, would not allow natural erosion processes to occur, and would not likely be found compatible with Pea Island Refuge’s mission. “[E]ven assuming the Agencies’ erosion projections and cost calculations are outdated, where other considerations render beach nourishment an unsuitable option in light of the goals of the B-2500 project, a new consideration that undermines only a subset of multiple independent reasons to exclude beach nourishment is not significant for purposes of [NEPA].”

The court also upheld the agencies’ determination that the U.S. Fish and Wildlife Service might not issue a permit for a beach nourishment alternative because it would reduce available natural habitat for migratory birds and other wildlife and, therefore, would be incompatible with the purposes of Pea Island Refuge. Given this determination, the court held, it was appropriate for the agencies to eliminate the beach nourishment alternatives from further analysis. “Although NEPA requires the Agencies to assess all reasonable alternatives, NEPA does not require the Agencies to apply for a permit in spite of reasonable belief that such permit is likely to be denied nor include detailed analysis for a likely unsuccessful alternative in an EIS.”

Predetermination.  The plaintiffs alleged that the agencies’ selection of the jug-handle bridge in the Phase IIb ROD was predetermined by the settlement agreement with conservation groups. The court explained that evidence of predetermination consists of the environmental analysis itself: Because the administrative record supported the ROD and demonstrated that the agencies adequately evaluated environmental effects of various alternatives, the court refused to consider an inference of predetermination. The court also explained that predetermination requires a physical commitment of resources; here, the agencies did not engage in any groundbreaking activities before issuing the ROD. Moreover, the court explained, the settlement agreement was “conditional in nature” and contemplated that the agencies could comply with the terms of the settlement and still reject the jug-handle bridge alternative. The court also noted that the settlement agreement could not require the agencies to select an alternative that did not comply with NEPA and Section 4(f). For all these reasons, the court held that the agencies did not unlawfully predetermine the selection of the jug-handle bridge.

Section 4(f)

Impacts on Wildlife Refuge.  The plaintiffs claimed that the agencies failed to analyze environmental effects of the alternatives on Pea Island Refuge “as a refuge.” In particular, the plaintiffs argued that while the Section 4(f) analysis explained effects on the Refuge in terms of land area used by each alternative, it did not directly assess the effects of such loss of land on the wildlife that the Refuge was intended to protect. The Section 4(f) analysis explained that the jug-handle bridge alternative would permanently use 2.79 acres of Refuge land and would restore an additional 19.27 acres of Refuge land by removing the existing road through the Refuge (for a net gain of 16.48 acres of Refuge land). The Section 4(f) analysis also discussed constructive use of the Refuge by the existing easement bridge alternative. In addition, it explained visual impacts and temporary construction use for both alternatives. The court held that the Section 4(f) analysis was sufficient, explaining that it was “entirely reasonable” to select the jug-handle bridge alternative given its net increase in Refuge land and smaller visual impacts. The court also held that the agencies acted within their discretion to decide how to evaluate impacts to the Refuge:

“NEPA permits the Agencies discretion to make policy choices regarding the kinds of information to be viewed as environmentally significant. Here, NEPA does not prohibit the Agencies from measuring environmental costs and benefits to the Refuge in units of land area consumed or returned by alternatives under consideration. Therefore, the court will not require the Agencies to envision every conceivable metric to measure environmental effects germane to Refuge purposes and demand separate measurements on each metric.”

 

 

 

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