Virginia Lawyers Weekly VA Lawyers Weekly
Where plaintiffs argued that a new Environmental Impact Statement, or EIS, is required from an agency reviewing a proposed toll bridge across North Carolina’s Currituck Sound, their arguments were rejected. Although the plaintiffs pointed to new information about traffic forecasts, growth and development patterns and sea-level projections, none of these developments compelled the agency to publish a supplemental EIS.
Background
This case is about a proposed toll bridge across North Carolina’s Currituck Sound that would connect the northern Outer Banks with the state mainland. For an action “significantly affecting the quality of the human environment,” the National Environmental Policy Act requires an agency to prepare a detailed EIS.
Here, the agencies took a first step toward the Currituck Sound bridge project in 2008 when they published a “Statement of Purpose and Need” detailing why another bridge was necessary. Next, the agencies circulated a draft EIS for public comment. After receiving and incorporating comments, they published a final EIS in 2012.
But before the agencies could issue a record of decision memorializing their choice, North Carolina put the project on hold. By the time the state recommitted the funds, more than three years had passed since the publication of the final EIS. Without soliciting further public input, the agencies completed their reevaluation in 2019. After the agencies published the record of decision, plaintiffs filed this suit. The district court granted summary judgment for the defendants.
Analysis
Plaintiffs first contend that the agencies violated the Act by failing to prepare a supplemental EIS where significantly changed circumstances demanded it. They point to three areas where they claim significant new information had emerged since the EIS: (1) traffic forecasts, (2) growth and development patterns and (3) sea-level projections. This court disagrees that any of these developments compelled the agency to publish a supplemental EIS.
First, plaintiffs argue that the agencies’ previous predictions of heavy traffic were rendered obsolete by new forecasts, which “showed significantly lower expectations of future traffic.” Plaintiffs note that the average daily traffic expected on the proposed bridge decreased 39% in the agencies’ reevaluation, dropping from 12,600 cars (in 2035) to 7,700 (in 2040). For a summer weekday, the projection decreased from 14,500 cars to 8,600. At the same time, reduced highway traffic would “lower[] the travel time savings associated with” using the bridge. The court finds that its clear from the reevaluation report that the agencies took a “hard look” at the traffic issue.
Second, plaintiffs argue that “[s]ignificant changes to anticipated growth and development patterns” demanded a supplemental EIS. Plaintiffs claim that the agencies originally assumed “full build-out” of the Outer Banks areas accessible by N.C. 12 and used that development to justify the bridge project. But, they argue, in the years after the EIS issued, population growth, tourism and home construction slowed in the area. This court finds that the agencies adequately considered and found insignificant the changes in projected traffic. Standing alone, slowed development on the Outer Banks isn’t a reason to require a supplemental EIS.
Next, plaintiffs claim that the agencies ignored the most up-to-date data on sea-level rise, which (according to plaintiffs) show that the bridge “may become inaccessible” under new projections. The agencies had always acknowledged that the bridge would “be at risk during a storm surge,” but concluded that rising sea levels would inundate the roads even sooner, making the bridge “the only way off the Currituck County Outer Banks.” The court finds that the agencies’ decision not to issue a supplemental EIS addressing the issue further wasn’t arbitrary or capricious.
Plaintiffs also argue that “[w]hen considered together,” the changes in traffic forecasts, expected growth and sea-level rise projections obligated the agencies to reevaluate whether non-bridge alternatives could better meet the project’s purposes. The court disagrees. The agencies took a hard look at the new information proffered, and their decision to not prepare a supplemental EIS wasn’t arbitrary or capricious.
Next, plaintiffs argue that the agencies started by assuming full development of the Outer Banks—which would only happen if the bridge were constructed—and used that assumption to justify the bridge. The agencies reply that they reasonably chose to use local land-use plans as the starting point for their analyses, and made clear that maximum development would only occur if a bridge were built. The agencies have the better argument.
Affirmed.
No-mid Currituck Bridge v. North Carolina Department of Transportation, Case No. 22-1103, Feb. 23, 2023. 4th Cir. (Diaz), from WDNC at Elizabeth City (Flanagan). Kimberley Hunter for Appellants. Sommer H. Engels and Colin Justice for Appellees. VLW 023-2-059. 21 pp.
