SAVE OUR SOUND OBX, INC.; MARK HAINES; JER MEHTA; GLENN STEVENS; DAVID HADLEY; THOMAS ASCHMONEIT; RICHARD AYELLA, Plaintiffs - Appellants,
NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; FEDERAL HIGHWAY ADMINISTRATION; JOHN F. SULLIVAN, III, in his official capacity as Division Administrator for the Federal Highway Administration; JAMES H. TROGDON, III, in his official capacity as Secretary of the North Carolina Department of Transportation, Defendants - Appellees, and DEFENDERS OF WILDLIFE; NATIONAL WILDLIFE REFUGE ASSOCIATION, Intervenors/Defendants - Appellees.
Argued: December 11, 2018
from the United States District Court for the Eastern
District of North Carolina, at Elizabeth City. Louise W.
Flanagan, District Judge. (2:17-cv-00004-FL)
Ari Schnitzer, GIBSON, DUNN & CRUTCHER LLP, Washington,
D.C., for Appellants.
Hansen-Young, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C.; Colin Justice, NORTH CAROLINA DEPARTMENT OF
JUSTICE, Raleigh, North Carolina, for Appellees.
Michael K. Murphy, Kyle N. Guest, GIBSON, DUNN & CRUTCHER
LLP, Washington, D.C., for Appellants.
Jeffrey H. Wood, Acting Assistant Attorney General, Eric
Grant, Deputy Assistant Attorney General, Andrew C. Mergen,
Robert J. Lundman, Carter F. Thurman, Appellate Section,
Environment and Natural Resources Division, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C.; Josh Stein, Attorney
General, OFFICE OF THE ATTORNEY GENERAL OF NORTH CAROLINA,
Raleigh, North Carolina; Scott T. Slusser, Special Deputy
Attorney General, Mollie Cozart, Assistant Attorney General,
NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North
Carolina, for Appellees North Carolina Department of
Transportation, Federal Highway Administration, John F.
Sullivan, III, and James H. Trogdon, III. Kimberley Hunter,
Nicholas S. Torrey, SOUTHERN ENVIRONMENTAL LAW CENTER, Chapel
Hill, North Carolina, for Appellees Defenders of Wildlife and
National Wildlife Refuge Association.
NIEMEYER, DUNCAN, and QUATTLEBAUM, Circuit Judges.
DUNCAN, CIRCUIT JUDGE
Save Our Sound OBX, Inc. and its members, residents and
vacationers from North Carolina's Outer Banks,
(collectively "SOS") challenge the decision of the
North Carolina Department of Transportation (the
"NCDOT"), the Federal Highway Administration (the
"FHWA"), and their administrators (collectively
"the Agencies") to replace a segment of North
Carolina Highway 12 ("NC-12") with a bridge across
the Pamlico Sound (the "Jug-Handle Bridge"). The
district court granted the Agencies' motion for summary
judgment, finding that they did not violate the National
Environmental Policy Act (the "NEPA"), 42 U.S.C.
§ 4321 et seq., or the Department of
Transportation Act (the "DTA"), 49 U.S.C. §
301 et seq., when they approved the bridge. SOS
challenges that ruling on appeal. For the reasons that
follow, we affirm.
case involves a segment of NC-12, which is the main roadway
passing through the Outer Banks of North Carolina. State and
federal agencies have been working for several years to
update and improve NC-12 because of its susceptibility to
weather damage and erosion.
many highway construction projects, the NC-12 project
required cooperation among state and federal agencies. For
instance, in North Carolina, NCDOT has authority over highway
construction, while FWHA supplies federal funds for highway
projects. The agencies tasked with improving NC-12, including
NCDOT and FHWA, formed a Merger Team to coordinate
decisionmaking and regulatory compliance for the NC-12
project. The Merger Team was responsible for
ensuring that the NC-12 project complied with the
requirements of NEPA and the DTA, among other regulations.
challenges certain agency decisions in the NC-12 project
under NEPA and the DTA. Accordingly, we first provide a brief
overview of the requirements of those statutes before turning
to the specific facts and procedural history of this appeal.
first statute at issue in this appeal is NEPA. Pursuant to
NEPA, 42 U.S.C. § 4321 et seq., and its
implementing regulations, government agencies considering
certain projects must evaluate whether the project would have
a significant impact on the environment by preparing an
Environmental Assessment (an "EA"). Id.
§ 4332(C); 40 C.F.R. § 1508.9; see id.
§ 1508.18 (defining the types of federal actions to
which NEPA applies). If the project would have a significant
impact, the agency must prepare an Environmental Impact
Statement (an "EIS"). 42 U.S.C. § 4332(C). The
agency is responsible for ensuring that the EIS complies with
various regulatory requirements. See 40 C.F.R.
§ 1502.1 et seq. For instance, the EIS must
"provide full and fair discussion" of any
significant environmental impacts of a proposed action. 40
C.F.R. § 1502.1. Additionally, the agency must
"[r]igorously explore and objectively evaluate all
reasonable alternatives" that could "avoid or
minimize adverse impacts." Id. §§
1502.1, 1502.14. The agency is permitted, however, to
identify a preference among alternatives based on
non-environmental considerations, such as economic factors or
the agency's statutory mission. Id. §
1505.2(b). If the agency has a preferred alternative, NEPA
requires the agency to identify that preference in the EIS.
Id. § 1502.14. NEPA also requires the agency to
prepare a supplemental EIS (an "SEIS") if
significant new information or environmental changes come to
light after the agency prepares an EIS. Id. §
1502.9(c). After the agency makes its final decision about
which alternative to pursue, it publishes a record of
decision (an "ROD") explaining its choice.
Id. § 1505.2.
turn to the second statute at issue: the DTA. The DTA
contains substantive requirements for government
transportation projects. 49 U.S.C. § 301 et
seq. Relevant here, the so-called "§
4(f)" requirements concern transportation projects that
require the use of publicly owned land of a wildlife refuge
or a significant historic site. Id. § 303(c).
Historic sites include structures "included in, or
eligible for inclusion in," the National Register of
Historic Places. 23 C.F.R. § 774.17. The Secretary of
Transportation may only approve such projects if there is no
"feasible and prudent" alternative to using that
land and the "project includes all possible planning to
minimize harm . . . resulting from the use."
Id. § 303(c). If there is no feasible and
prudent alternative, the Secretary may only approve the
alternative that "[c]auses the least overall harm in
light of the [DTA's] preservation purpose." 23
C.F.R. § 774.3(c). Relevant considerations in selecting
the least harmful alternative include whether harm to the
land can be mitigated, whether harm to the land affects the
attributes qualifying that land for protection, and whether
the alternative meets the needs of the project. Id.
established the relevant framework, we consider the facts of
this case. SOS's claims in this litigation concern the
Agencies' environmental analysis under NEPA and the DTA
with respect to a segment of NC-12 that passes from the
southern edge of Bodie Island to the village of Rodanthe. For
this segment, the Merger Team was responsible for preparing
EAs and EISs pursuant to NEPA and for determining which
proposed plan for the project was the least
environmentally-damaging practicable alternative (the
"LEDPA") pursuant to section 404 of the Clean Water
Act, 33 U.S.C. § 1344, among other
requirements. See 40 C.F.R. § 230.10
(setting out the LEDPA requirement).
2008, the Merger Team issued an EIS and § 4(f)
evaluation (the "2008 EIS") for improving NC-12.
For the segment at issue here, the 2008 EIS included
discussion of several alternatives, including a proposed
bridge in the Pamlico Sound near Rodanthe (the "Bridge
South alternative") and proposals involving beach
nourishment. An EA in 2010 (the "2010 EA") further
developed these alternatives.
Merger Team released an updated EA in 2013 (the "2013
EA") to account for environmental changes after the 2010
EA, including the effects of Hurricane Irene in 2011. The
2013 EA identified four alternatives for the segment at
issue: (1) the so-called Jug-Handle Bridge, a bridge
extending out into the Pamlico Sound (also referred to in the
environmental analyses as the "Bridge on New
Location"); (2) an easement bridge on the existing
NC-12 location; (3) beach nourishment; and (4) an easement
bridge combined with beach nourishment. The Merger Team did
not study the beach nourishment alternatives in depth in the
2013 EA because, at a 2011 meeting, it had already determined
not to pursue them after experts reported on a "high
erosion rate and a lack of sand supply." J.A. 843. In
the 2013 EA, the Merger Team identified the easement bridge
as its preferred alternative under NEPA. However, certain
members of the Merger Team objected to finding that the
easement bridge was the LEDPA under the Clean Water Act,
citing concerns about its location within the surf zone,
additional permits associated with erosion setback
requirements, and its impact on a nearby wildlife refuge.
See J.A. 1745-47.
meantime, environmental groups Defenders of Wildlife and the
National Wildlife Refuge Association (intervenors here,
collectively the "Environmental Groups") brought
suit in federal court to challenge the Agencies' NEPA and
§ 4(f) determinations with respect to a different
segment of NC-12 in the Outer Banks--the Bonner Bridge, which
connects Bodie Island and Hatteras Island to the north of
Rodanthe. See Defs. of Wildlife v. N.C. Dep't of
Transp., 762 F.3d 374 (4th Cir. 2014). The Environmental
Groups and the Agencies eventually reached an agreement in
2015 (the "Settlement").The Settlement required NCDOT
to identify the Jug-Handle Bridge as its preferred
alternative for the segment of NC-12 at issue in this case.
It also required NCDOT to seek Merger Team concurrence that
the Jug-Handle Bridge was the LEDPA. In doing so, it stated
that nothing in the Settlement "requires or should be
interpreted to predetermine the choice" of the
Jug-Handle Bridge as the final selected alternative. J.A.
1090. In exchange, the Environmental Groups dismissed the
Bonner Bridge suit and agreed not to challenge the Agencies
in court if the Jug-Handle Bridge was determined to be the
LEDPA and was ultimately selected in the ROD for this
2015 meeting, the Agencies identified the Jug-Handle Bridge
as their preferred alternative. Following public comment and
detailed studies, the Merger Team determined that the
Jug-Handle Bridge was the LEDPA. In 2016, the Merger Team
released a revised EA (the "2016 EA") to evaluate
the environmental impacts of the Jug-Handle Bridge and its
associated construction activities. Later that year, the
Merger Team issued an ROD (the "2016 ROD") formally
approving the Jug-Handle Bridge.
addition to authorizing construction of the Jug-Handle
Bridge, the 2016 ROD also addressed concerns relating to a
shipwreck in the proposed bridge's path known as the
Pappy's Lane Wreck. The shipwreck is eligible for listing
on the National Register of Historic Places. Because of the
shipwreck's historical significance, the 2016 ROD ordered
a data recovery project on the shipwreck, which later
uncovered evidence that the shipwreck was a World War II
assault vessel. The Merger Team has not yet determined how it
will respond to this new information.
turn to the procedural history of this litigation, which
began when SOS sued the Agencies on February 2, 2017. A month
later, the Environmental Groups intervened in the suit in
support of the Agencies. In its complaint, SOS alleged, as
relevant here, that the Agencies' approval of the
Jug-Handle Bridge violated NEPA because that decision was
predetermined by the Settlement. To show evidence of
predetermination, SOS moved to supplement the administrative
record before the district court to include documents related
to the negotiation of the Settlement on the ...