North Carolina Lawyers Weekly
Years after the defendant-agencies developed their original environmental impact statement (EIS) for a proposed bridge over Currituck Sound, the state renewed its plans to build the bridge. In the interim, coastal development and traffic projections decreased, and expected sea level rises increased. Nevertheless, since the agencies took a “hard look” at the changes’ effects on how the bridge would affect the environment before finding that they did not need to prepare a new EIS, the agencies followed the procedures laid out in the National Environmental Policy Act.
We affirm summary judgment for defendants.
When the bridge was first proposed in 2008, the agencies identified three project purposes: (1) improving traffic flow on U.S. 158 and N.C. 12, (2) reducing travel time between the mainland and the Outer Banks and (3) reducing evacuation times for Outer Banks visitors and residents.
A supplemental EIS is required if new information shows that the action will affect the quality of the human environment in a significant manner or to a significant extent not already considered.
We determine whether an agency should have prepared a supplemental EIS in two steps. First, we must consider whether the agency took a hard look at the proffered new information. Second, if the agency did take a hard look, we determine whether its decision not to prepare a supplemental EIS was arbitrary or capricious.
Since the Federal High Administration’s regulations don’t require a supplemental EIS where new information solely results in a “lessening of adverse environmental impacts,” 22 C.F.R. § 771.130(b)(1), it is unclear why reduced traffic over the bridge – which would seem to decrease the bridge’s environmental footprint – would require a supplemental EIS.
In any event, the agencies prepared new traffic forecasts and network congestion measures, and they conceded that travel-time benefits associated with the bridge might be lower than originally predicted. But even so, the updated analysis “found that the main thoroughfares are still congested . . . and forecast to become worse.”
The agencies reasonably concluded that the bridge would still meet its purposes as well as (or better than) the other alternatives even if traffic on it were moderately reduced. The new traffic forecasts did not call into question the entirety of the bridge, the choice of the bridge over alternatives, or the bridge’s environmental impact—or at least the agencies were entitled to so conclude. So the agencies weren’t required to issue a supplemental EIS to address them.
Plaintiffs point to 2017 sea-level rise data from the National Oceanic and Atmospheric Administration to argue that, within 30 years, the bridge may become inaccessible. However, the agencies were entitled to rely on a 2016 report from the North Carolina Coastal Resources Commission Science Panel, whose forecasts were within the range the agencies originally considered. The sea-level rise is a factual dispute the resolution of which implicates substantial agency expertise, so we defer to the informed discretion of the responsible federal agencies. At most, the new sea-level projections may make a bridge a less wise choice, but the NEPA merely prohibits uninformed, rather than unwise, agency action.
The new sea-level data only confirmed concerns that the EIS already articulated and considered. The agencies’ decision not to issue a supplemental EIS addressing the issue further wasn’t arbitrary or capricious.
The agencies reasonably concluded that, even if the benefits of the bridge were marginally diminished, the bridge still met its purposes as well as or better than the other alternatives. In sum, 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.
Plaintiffs also argue that the “no build” alternative in the EIS impermissibly assumed full development of the Outer Banks – which would only happen if the bridge were constructed – and used that assumption to justify the bridge. However, the agencies were entitled to use local land-use plans as the starting point for their analyses, and they worked backward from those plans to estimate the development that would occur without the bridge, making clear that there would be less development in that scenario. Thus, the agencies no-build baseline properly reflected the lower level of development that would result without the bridge.
Affirmed.
No Mid-Currituck Bridge-Concerned Citizens v. North Carolina Department of Transportation (Lawyers Weekly No. 001-027-23, 21 pp.) (Albert Diaz, J.) No. 22-1103. Appealed from USDC at Elizabeth City, N.C. (Louise Flanagan, J.) Kimberley Hunter, Ramona McGee, Nicholas Torrey and Hanna Nelson for appellants; Sommer Engels, Todd Kim, Andrew Mergen, Robert Lundman, Elizabeth McGurk, Daniel Covas and Scott Slusser for appellees; John Leidy for amici curiae. 4th Cir.
