N.C. Wildlife Fed'n v. N.C. Dep't of Transp.

575 F.Supp.3d 584

NORTH CAROLINA WILDLIFE FEDERATION and No Mid-Currituck Bridge-Concerned Citizens and Visitors Opposed to the Mid-Currituck Bridge, Plaintiffs,

v.NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; Federal Highway Administration ; Edward T. Parker, in his official capacity as Assistant Division Administrator, Federal Highway Administration ; and Eric Boyette, in his official capacity as Secretary, North Carolina Department of Transportation, Defendants.

NO. 2:19-CV-14-FL

United States District Court, E.D. North Carolina, Northern Division.

Signed December 13, 2021

Ramona H. McGee, Nicholas S. Torrey, Kimberley Hunter, Southern Environmental Law Center, Chapel Hill, NC, for Plaintiffs.

Kacy Lynn Hunt, Scott T. Slusser, Colin Justice, NC Dept. of Justice Transportation Section, Raleigh, NC, for Defendants North Carolina Department of Transportation, Eric Boyette.

Elizabeth R. McGurk, United States Department of Justice, Washington, DC, Neal Fowler, United States Attorney's Office, Raleigh, NC, for Defendants Federal Highway Administration, Edward T. Parker.

ORDER

LOUISE W. FLANAGAN, United States District Judge

This matter is before the court on the parties’ cross-motions for summary judgment. (DE 88, 90, 92). The motions have been briefed fully, and in this posture the issues raised are ripe for decision. For reasons that follow, summary judgment is granted in favor of defendants.

STATEMENT OF THE CASE

Plaintiffs seek judicial review of defendant Federal Highway Administration's ("Highway Administration") final decision to allow defendant North Carolina Department of Transportation ("Department of Transportation") to construct a $600 million toll bridge across the Currituck Sound near North Carolina's Outer Banks ("Mid-Currituck Bridge"). Plaintiffs are, respectively, the state's oldest and largest statewide non-profit conservation organization and a Currituck County-based membership organization aimed at opposing the construction of the instant transportation project. Plaintiffs initiated this action April 23, 2019, pursuant to the Administrative Procedure Act, 5 U.S.C. § 701 et seq., asserting that defendants violated the National Environmental Policy Act, 42 U.S.C. § 4331 et seq.

Plaintiffs claim that defendants’ decision to construct the Mid-Currituck Bridge impermissibly rests upon an arbitrary and capricious analysis of alternatives under the National Environmental Policy Act and that they have violated the act's procedural requirements. Plaintiffs seek a declaration that defendants have violated the Administrative Procedure Act and National Environmental Policy Act, vacatur of the record of decision approving the Mid-Currituck Bridge, and an injunction preventing defendants from proceeding with the Mid-Currituck Bridge until they have complied with the relevant statutory requirements.

Defendant Highway Administration is an operating administration within the United States Department of Transportation, and defendant Edward T. Parker is an assistant division administrator for defendant Highway Administration (collectively "federal defendants"). Defendant Department of Transportation is an agency of the State of North Carolina, and defendant Eric Boyette is its Secretary (collectively "state defendants"). Defendants were involved in preparing and overseeing the completion of the statutorily required environmental impact statement and record of decision.

After filing of the administrative record by federal defendants, (see Administrative Record (DE 21-45)), pursuant to the court's case management order, plaintiffs moved to complete and supplement the administrative record. In its August 26, 2020, order, the court allowed, as supplementation of the administrative record, a 1995 Alternative Study Report, a 1998 draft environmental impact statement, and certain letters sent by plaintiffs to an office of defendant Highway Administration, allowed, as extra-record evidence, correspondence from plaintiff requesting a supplemental environmental impact statement, and denied the motion in remaining part. N.C. Wildlife Fed'n v. N.C. Dep't of Transp., No. 2:19-CV-14-FL, 2020 WL 5044465, at *2-5 (E.D.N.C. Aug. 26, 2020). Thereafter, federal defendants filed the supplemented administrative record. (See Supplemented Administrative Record (DE 77-86)).¹

The administrative record contains over 78,000 pages of documents involving the administrative decisionmaking process for the Mid-Currituck Bridge, including stakeholder technical reports; miscellaneous communications; records from the scoping process; internal drafts, comments, and revisions; a 1998 draft environmental impact statement; alternative screening reports; a 2010 draft environmental impact statement; public notice and comment on that draft environmental impact statement; various agency consultations; updated technical reports; a 2012 final environmental impact statement; public notice and comment on that final environmental impact statement; a reevaluation of the final environmental impact statement; a related reevaluation study report; and a record of decision.

In their instant motion for summary judgment, plaintiffs rely upon the completed administrative record, as well as declarations from several of their members. Subsequently, each set of defendants also moved for summary judgment, relying upon solely the administrative record. Plaintiffs filed a combined response to defendants’ motions and a reply in support of their motion. Thereafter, defendants filed replies in support of their motions for summary judgment.

STATEMENT OF FACTS

The undisputed facts may be summarized as follows. The setting of the instant dispute is the area surrounding the Currituck Sound in northeastern North Carolina, inclusive of the Currituck County mainland, the Currituck County portion of the Outer Banks, and the Dare County parts of the Outer Banks around Kitty Hawk, as displayed below.

(R. 4686). One of the primary ways to travel to and from the Outer Banks coastal barrier islands in North Carolina is the Wright Memorial Bridge that straddles the Currituck Sound and stretches from Currituck County into Dare County. (See R. 68868, 69448, 74487-88). The most recent version of proposed Mid-Currituck Bridge project would consist of

construction of a 4.7-mile-long, two lane toll bridge (the Mid-Currituck Bridge) across Currituck Sound between the communities of Aydlett on the mainland and Corolla on the Outer Banks, an interchange between US 158 and the mainland approach road to the bridge, a bridge across Maple Swamp as a part of the mainland approach road, limited improvements to existing NC 12 and US 158, and primarily reversing the center turn lane on US 158 to improve hurricane clearance times.

(R. 69447). A graphical representation of the project is displayed below.

(R. 69448).

The project's genesis was in 1975, (R. 74489), but defendants’ involvement began in the 1990s with defendant Highway Administration's notice of intent that "an environmental impact statement will be prepared for a Mid-Currituck Sound bridge in Currituck County, North Carolina." 60 Fed. Reg. 35255, 35255-56 (July 6, 1995) ; (R. 69449). Subsequently, in 1998, defendant Highway Administration alongside defendant Department of Transportation published an initial draft environmental impact statement. (R. 74560). The project received pushback from both regulatory agencies and the community. (See R. 69961).

The 1998 draft environmental impact statement was rescinded in 2008 due to "several changes in the project including the expansion of the project study area, modification of the purpose and need statement, and analysis of additional alternatives." See 73 Fed. Reg. 31733, 31733-34 (June 3, 2008). Thereafter, notice of intent to prepare a new environmental impact statement was entered. 73 Fed. Reg. 34065, 34065-66 (June 16, 2008).

A. Preliminary Processes, Drafting, and Scoping

A draft "statement of purpose and need" was published in April 2008 and finalized in October 2008. (R. 3073, 4588).² The finalized statement laid out the need for the Mid-Currituck Bridge as follows:

1) The need to substantially improve traffic flow on the ... throughfares (US 158 and NC 12 [on the Currituck County peninsula on the mainland and its Outer Banks, as well as the Dare County Outer Banks north of Kitty Hawk].

2) The need to substantially reduce travel time for persons traveling between the Currituck County mainland and the Currituck County Outer Banks.

3) The need to substantially reduce evacuation times from the Outer Banks for residents and visitors who use US 158 and NC 168 as an evacuation route.

(R. 4596). These needs were predicated by "[t]he project area's main thoroughfares (US 158 and NC 12) ... becoming increasingly congested," with "congestion ... becom[ing] even more severe in the future"; "[i]ncreasing congestion ... causing travel time between the Currituck County mainland and the Currituck County Outer Banks to increase, especially during the summer[ ]"; and "[e]vacuation times for residents and visitors who use US 158 and NC 168 as an evacuation route far exceed[ing] the State-designated standard of 18 hours." (R. 4595-96). The statement further explained that various courses of actions would be considered based on their ability to meet the three needs highlighted above through substantial improvements. (R. 4597). The document explains that "an improvement is considered substantial as opposed to minor if the improvement is great enough to be largely noticeable to typical users ... and if the improvement offers some benefit across much of the network as opposed to a few offering only localized benefits." (Id. ).

B. Alternatives Screening

In accordance with the foregoing statement of purpose and need, in October 2009, defendants prepared an "Alternatives Screening Report," which examined what alternatives in addition to the proposed action would be selected for more detailed study in a draft environmental impact statement. (...