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Environmental – Administrative – NEPA Review – Toll Road

North Carolina Wildlife Federation v. North Carolina Department of Transportation (Lawyers Weekly No. 11-02-1085, 28 pp.) (James C. Dever III, Ch.J.) E.D.N.C.

Holding: Even though defendants analyzed the impact of highway-building and no-build scenarios using socioeconomic data that already contemplated building the highway, defendants took extensive steps to ensure that the data constituted an appropriate baseline for the no-build scenario. Multiple investigations by an engineering firm confirmed the propriety of the data and the accuracy of defendants’ analyses. Defendants’ use of and reliance on these data were reasonable and did not violate defendants’ obligations under the National Environmental Policy Act of 1969 (NEPA).

Defendants’ motion for summary judgment is granted.

Plaintiffs argue that defendants’ final environmental impact study “simply assumes that the [project] area will continue to urbanize whether or not new highways are built.” To the contrary, defendants conducted a study that proved that growth and urbanization would continue apace with or without the proposed highway.

Where all of defendants’ highway-building alternatives covered almost the exact same path, when defendants’ 2010 quantitative indirect cumulative effect analysis compared the no-build scenario to one build scenario, it essentially compared the no-build scenario with all 16 build alternatives. Defendants acted reasonably in comparing the no-build alternative with only one build alternative.

Defendants considered nine different alternatives: (1) a ‘’No-Build or No-Action Alternative”; (2) a ‘’Transportation Demand Management Alternative”; (3) a “Transportation System Management Alternative”; (4) a “Mass Transit/Multi-Modal Alternative”; (5) an Improve Existing U.S. 74 Alternative (Standard Arterial Widening); (6) an Improve Existing U.S. 74 Alternative (Superstreet); (7) an Improve Existing U.S. 74 Alternative (Controlled-Access Highway); (8) a ‘’New Location Alternative”; and (9) a “New Location/Improve Existing Roadways Hybrid Alternative.”

Defendants’ alternatives analysis complies with NEPA and with governing regulations. Although plaintiffs would like for defendants to have considered more alternatives, an environmental impact statement need not consider every conceivable alternative.

Motion granted.

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