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Case Law Updates on the Environment (CLUE)

Case Law Update Details

Case Title

Save Our Sound OBX v. North Carolina DOT

Case No.

914 F.3d 213

Court

U.S. Court of Appeals - D.C. Circuit

State

North Carolina

Date

1/23/2019

Project

NC 12 Phase IIb

Project Type

Highway

Project Description

The project involved improvements to North Carolina Highway 12 (NC 12) in the Outer Banks. FHWA and the North Carolina Department of Transportation (NCDOT) issued a final EIS and Section 4(f) evaluation for the NC 12 project in 2008, and a revised Section 4(f) evaluation in 2009. The agencies then decided to proceed with construction in phases: Phase I replaced the Bonner Bridge between Bodie and Hatteras Islands; Phase IIa involved improvements to NC 12 south of the Bonner Bridge, in Pea Island National Wildlife Refuge; Phase IIb involved improvements to NC 12 in the southern portion of Pea Island Wildlife Refuge and the village of Rodanthe. The agencies issued an EA for Phase IIb in 2010, followed by a revised EA in 2013 to account for environmental changes to Hatteras Island that occurred due to a hurricane.

In response to litigation brought by two environmental groups, the agencies and the environmental groups entered into a settlement agreement in 2015 that required NCDOT to seek approval for a new “jug-handle” bridge in Pamlico Sound as the preferred alternative, including using good-faith efforts to obtain concurrence from other agencies that the jug-handle bridge was the least environmentally damaging practicable alternative (LEDPA). The jug-handle bridge would bypass two miles of Pea Island Wildlife Refuge, and the existing roadway through the wildlife refuge would be removed. In May 2016, the agencies issued a revised EA that evaluated the jug-handle bridge as the preferred alternative for Phase IIb and a ROD that selected the jug-handle bridge alternative as the LEDPA.

Case Summary

The plaintiffs sued NCDOT and FHWA in 2017 following the agencies’ issuance of the Phase IIb ROD. The district court ruled in favor of the agencies. On appeal, the plaintiffs alleged that the agencies violated NEPA by failing to prepare a supplemental EIS, failing to adequately analyze construction impacts, and by predetermining their selection of the jug-handle bridge alternative before completing the environmental review process. The plaintiffs also argued that the agencies violated Section 4(f) because the project would harm a historically significant shipwreck. The court of appeals ruled in favor of the agencies on all issues.

Key Holdings

NEPA
Supplementation

Changed Alignment. The court ruled that a supplemental EIS was not required due to differences in the final alignment of the jug-handle bridge and the alternatives studied in the 2008 EIS and the 2010 Phase IIb EA. The court explained that the 2016 Revised Phase IIb EA compared in detail the changes between the final alignment and the alignment studied in prior environmental documents. The Revised EA discussed the reasons the agencies shifted the alignment (which included avoiding underwater vegetation and reducing impacts on communities). Furthermore, the court explained, the changes to the alignment described in the Revised EA did not involve any significant environmental concerns that would require a supplemental EIS.

Reconsideration of Beach Nourishment Alternatives. The plaintiffs argued that the agencies should have prepared a supplemental EIS to reconsider alternatives involving beach nourishment. In the 2008 EIS, the agencies decided to eliminate those alternatives based on cost, limited supply of sand, inadequate protection against future breaches, risks of overwash of the roadway, and incompatibility with the mission of Pea Island Wildlife Refuge. The plaintiffs claimed that new information—improved erosion projections and the results of an emergency beach nourishment project in 2014—indicated that there was an adequate supply of sand and that erosion would no longer threaten beach nourishment. The court held that a supplemental EIS was not required because the new information did not implicate the other independently adequate reasons for rejecting beach nourishment (such as protection against future breaches, risks of overwash, and compatibility with the wildlife refuge’s mission).

Construction Impacts.  The court rejected the plaintiffs’ argument that the agencies did not adequately consider impacts of construction traffic and haul roads in Rodanthe. The 2013 Revised EA and 2016 Revised EA compared the construction traffic impacts of the jug-handle bridge and other alternatives. The 2016 ROD explained that a temporary construction easement would be necessary to support construction traffic and that the land would be restored after construction was completed. The 2008 EIS analyzed the impacts of haul roads generally (but not specifically in the Rodanthe area). The court held that this analysis was sufficient, noting that NEPA only requires impacts to be discussed in proportion to their significance.

Predetermination.  The plaintiffs claimed that the agencies’ selection of the jug-handle bridge alternative was predetermined by the 2015 settlement agreement. The court explained that its predetermination inquiry was limited to whether the environmental documents demonstrated the agencies had objectively considered reasonable alternatives. The court concluded that the environmental documents—some of which were prepared before the 2015 settlement agreement—showed that the agencies comprehensively evaluated the jug-handle bridge and other alternatives. Even if it could look beyond the environmental documents, the court explained, the settlement agreement did not support the plaintiffs’ argument: The agreement allowed for the possibility of a different alternative if the environmental analysis did not support selecting the jug-handle bridge as the LEDPA.

Section 4(f)
New Information About Historic Shipwreck.  The plaintiffs argued that FHWA violated Section 4(f) because the project would harm a historically significant shipwreck in Pamlico Sound. The court held that FHWA complied with Section 4(f) by determining, based on the information available at the time of the 2016 ROD, that the shipwreck did not merit preservation in place and ordering data recovery. The court further held that any argument based on information discovered through the data recovery project was not yet ripe for judicial review until FHWA issued a final decision about the significance of that new information.

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