Wilds v. South Carolina Department of Transportation , 9 F. App'x 114 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
NANCY WILDS, individually and on 
behalf of all others similarly
situated,
Plaintiff-Appellant,
v.
 No. 00-1808
SOUTH CAROLINA DEPARTMENT OF
TRANSPORTATION; NORMAN Y.
MINETA, SECRETARY, UNITED STATES
DEPARTMENT OF TRANSPORTATION,
Defendants-Appellees.

Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Dennis W. Shedd, District Judge.
(CA-97-1608-8-13BD)
Argued: March 1, 2001
Decided: May 9, 2001
Before NIEMEYER, LUTTIG, and WILLIAMS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Charles Russell Horner Shearer, CADWALADER,
WICKERSHAM & TAFT, Washington, D.C., for Appellant. John
Luther Smeltzer, UNITED STATES DEPARTMENT OF JUSTICE,
2 WILDS v. SOUTH CAROLINA DOT
Washington, D.C., for Appellees. ON BRIEF: Geraldine E. Edens,
CADWALADER, WICKERSHAM & TAFT, Washington, D.C., for
Appellant. Lois J. Schiffer, Assistant Attorney General, Environment
& Natural Resources Division, UNITED STATES DEPARTMENT
OF JUSTICE, Washington, D.C.; Kenneth W. Ebener, S. Jahue
Moore, WILSON, MOORE, TAYLOR & THOMAS, P.A., West
Columbia, South Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Nancy Wilds filed suit in the United States District Court for the
District of South Carolina against United States Transportation Secre-
tary Norman Mineta1 and the South Carolina Department of Transpor-
tation (SCDOT) (collectively, the DOT) challenging two federal-aid
highway projects in Aiken, South Carolina — the "Eastern Connec-
tor" and the "Pine Log" projects. On appeal from the district court’s
grant of summary judgment in favor of the DOT, Wilds argues that
the DOT improperly segmented its environmental analysis into two
projects; that the DOT improperly undertook the Pine Log project
without issuing a final environmental assessment (EA); that the DOT
failed properly to determine whether the Eastern Connector project
would have significant induced growth and air quality impacts; that
the DOT failed adequately to consider alternatives to the Eastern Con-
nector project; and that the DOT improperly issued the EA and find-
ing of no significant impact (FONSI) for the Eastern Connector
project on the same day and without giving proper notice or consider-
ing relevant new information. Finding no reversible error, we affirm.
1
The case was originally captioned against Rodney Slater, who is no
longer the United States Secretary of Transportation.
WILDS v. SOUTH CAROLINA DOT 3
I.
The City of Aiken, South Carolina, is served by two major high-
ways that intersect downtown — U.S. Route 78, which is an east-west
route, and S.C. Route 19, which is a north-south route. These two
intersecting highways connect to, inter alia, a series of roads that form
an "Outer Loop" around Aiken. The roads in the Outer Loop include
Rutland Drive, University Parkway, Richard M. Bell Parkway, Hitch-
cock Parkway, and Pine Log Road. Although termed the "Outer
Loop," the series of roads does not form a continuous loop. Rather,
the loop lacks a direct connection between the intersection of Route
78 and Pine Log Road, where the loop ends, and the Route 1 and Rut-
land Drive intersection, where the loop begins. Route 19 also con-
nects to Interstate 20, a freeway that connects Atlanta, Georgia and
Columbia, South Carolina.
In 1975, the SCDOT, in conjunction with the Federal Highway
Administration (FHWA) and local government officials, prepared an
"Aiken Area Transportation Study," which recommended improve-
ments to the Outer Loop in order to divert traffic from downtown
Aiken. In November 1989, the Aiken Comprehensive Plan incorpo-
rated these recommendations. The Plan recommended constructing
the Eastern Connector and widening Pine Log Road.
A. The Eastern Connector
The Eastern Connector project is designed to improve SC Route
118 between SC Route 19 and US Route 78 by (1) widening Rutland
Drive from a four-lane to a five-lane roadway and (2) building a new
five-lane connecting roadway from the end of Rutland Drive to the
intersection of Route 78 and Pine Log Road. The new roadway would
remove another road, Beaufort Street, from the bypass system and
make the Outer Loop more or less continuous. The purpose of the
project is to address traffic and circulation difficulties in the project
area, to handle projected traffic levels,2 and to improve traffic flow
2
The traffic volume as of July 7, 1995, the date of the final EA for the
Eastern Connector, ranged from 10,100 vehicles per day to 16,400 vehi-
cles per day. This exceeds the desired traffic volume of 7,800 vehicles
per day. It is projected that the route will see 21,300 to 26,600 vehicles
per day by the year 2015.
4 WILDS v. SOUTH CAROLINA DOT
along the existing bypass system. The Eastern Connector would also
provide a northeast bypass for drivers traveling between Route 78 and
Interstate 20 interchanges.
In January 1994, the DOT issued its draft EA3 for the Eastern Con-
nector. On February 11, 1994, the FHWA approved the draft EA. The
DOT sent notice to city, county, and state officials announcing the
public availability of the EA and a public hearing on the Eastern Con-
nector project, and on May 3, 1994, the DOT also published notice
in the Aiken Standard, a local newspaper. On May 24, 1994, the DOT
held a public hearing on the project. On January 10, 1995, the DOT
forwarded its final EA to the FHWA. On July 7, 1995, the FHWA
approved the location and preliminary design of the Eastern Connec-
tor project, approved the final EA, and issued a FONSI. On October
6, 1995, the DOT published notice in a local newspaper, the Aiken
Standard, announcing public availability of the FONSI.
B. Pine Log Road
The Pine Log Road project is designed to widen S.C. Route 302
from two lanes to four lanes and add a median strip and a fifth multi-
purpose lane. There also would be a slight relocation of the end of the
3
40 C.F.R. § 1508.9 (2000) provides that
Environmental Assessment:
(a) Means a concise public document for which a Federal agency
is responsible that serves to:
(1) Briefly provide sufficient evidence and analysis for
determining whether to prepare an environmental impact
statement or a finding of no significant impact.
(2) Aid an agency’s compliance with the Act when no envi-
ronmental impact statement is necessary.
(3) Facilitate preparation of a statement when one is neces-
sary.
(b) Shall include brief discussions of the need for the pro-
posal, of alternatives as required by section 102(2)(E), of the
environmental impacts of the proposed action and alterna-
tives, and a listing of agencies and persons consulted.
WILDS v. SOUTH CAROLINA DOT 5
roadway where it intersects with Route 78 to allow for a direct con-
nection with the proposed Eastern Connector. The project is designed
to relieve congestion and improve traffic flow between Route 19 and
Route 78 and would also help complete the Outer Loop.
On March 19, 1996, the DOT issued a draft EA that evaluated
potential impact of the project. On May 16, 1996, the FHWA sent a
letter to the DOT recognizing that the DOT’s draft EA had success-
fully addressed certain key concerns raised by the FHWA prior to
submission of the draft EA. On the same day, the FHWA approved
the draft EA. On July 18, 1996, after issuing a public notice, the DOT
held a public hearing on the Pine Log project. On September 13,
1996, the DOT notified the FHWA that it had complied with the
National Environmental Policy Act, 42 U.S.C.A. § 4332 (NEPA) and
that NEPA review was complete. On September 19, 1996, the FHWA
approved the location and preliminary design of the Pine Log project,
and issued a FONSI for the project.
C.
In 1995, Wilds began lobbying to stop the highway projects
because she believed that her property would be adversely impacted.
On September 20, 1995, the South Carolina subcommittee of the
Augusta Regional Transportation Study held a special meeting on the
Eastern Connector project at Wilds’s request. Approximately 80 other
area residents attended the meeting and many of them objected to the
project. Despite the objections, the subcommittee found no reason to
alter the proposed project.
On June 2, 1997, Wilds filed suit against the Secretary of Transpor-
tation and the SCDOT.4 She simultaneously filed a motion for prelim-
inary injunction seeking to enjoin the Eastern Connector project
pending further NEPA evaluations. The district court denied the
motion for preliminary injunction. After the parties filed cross-
motions for summary judgment, the magistrate judge issued a report
recommending that summary judgment be granted in favor of the
DOT. The district court accepted the magistrate judge’s recommenda-
tion and granted the DOT’s motion for summary judgment.
4
Wilds filed suit pro se but later obtained counsel.
6 WILDS v. SOUTH CAROLINA DOT
Wilds raises several issues on appeal. First, Wilds argues that the
DOT improperly segmented its environmental analysis for the Eastern
Connector and Pine Log projects from each other and from the Outer
Loop. Second, Wilds argues that the DOT improperly undertook the
Pine Log project without issuing a final EA. Third, Wilds argues that
the DOT failed properly to determine whether the Eastern Connector
project would have significant induced growth and air quality
impacts. Fourth, Wilds argues that the DOT failed adequately to con-
sider alternatives to the Eastern Connector project. Finally, Wilds
argues that the DOT improperly issued the EA and the FONSI for the
Eastern Connector project on the same day and that the DOT failed
to give proper notice or to consider relevant new information.
II.
We review the district court’s grant of summary judgment de novo.
We must determine whether the DOT’s decision was "arbitrary, capri-
cious, or otherwise not in accordance with law, or unsupported by
substantial evidence." Roanoke River Basin Ass’n. v. Hudson, 940
F.2d 58, 61 (4th Cir. 1991) (internal quotation marks omitted). "To
apply the standard, we must make a searching and careful inquiry into
the facts and a review of whether the decision was based on a consid-
eration of the relevant factors and whether there has been a clear error
of judgment, although naturally we are not empowered to substitute
[our] judgment for that of the agency." City of Alexandria v. Fed.
Highway Admin., 756 F.2d 1014, 1017 (4th Cir. 1985) (internal quo-
tation marks omitted). Rather, our role is "to see that the official or
agency take[s] a ‘hard look’ at all relevant factors." Coalition For
Responsible Reg’l Dev. v. Coleman, 555 F.2d 398, 400 (4th Cir.
1977) (internal quotation marks omitted).
NEPA provides that "all agencies of the Federal Government shall"
(C) include in every recommendation or report on proposals
for legislation and other major Federal actions significantly
affecting the quality of the human environment, a detailed
statement by the responsible official on—
(i) the environmental impact of the proposed
action,
WILDS v. SOUTH CAROLINA DOT 7
(ii) any adverse environmental effects which can-
not be avoided should the proposal be imple-
mented,
(iii) alternatives to the proposed action,
(iv) the relationship between local short-term uses
of man’s environment and the maintenance and
enhancement of long-term productivity, and
(v) any irreversible and irretrievable commitments
of resources which would be involved in the pro-
posed action should it be implemented.
42 U.S.C.A. § 4332(2)(C)(i)-(v) (West 1994).
"NEPA declares a national policy of protecting and promoting
environmental quality. To implement this policy, NEPA requires fed-
eral agencies to follow certain procedures before undertaking projects
that will affect the environment." Hughes River Watershed Conser-
vancy v. Glickman, 81 F.3d 437, 443 (4th Cir. 1996) (Hughes River
I). "Thus, although NEPA establishes environmental quality as a sub-
stantive goal, it is well settled that NEPA does not mandate that agen-
cies reach particular substantive results. Instead, it simply sets forth
procedures that agencies must follow." Id. (internal citations omitted).
"In other words, if the adverse environmental effects of . . . proposed
actions are adequately identified and evaluated, agencies are not con-
strained by NEPA from deciding that other values outweigh the envi-
ronmental costs." Id. (internal quotation marks and alterations
omitted). "Central to NEPA’s procedural focus is the requirement that
federal agencies prepare [environmental impact statements (EIS)] to
be included in every recommendation or report on proposals for . . .
major Federal actions significantly affecting the quality of the human
environment." Id. (internal quotation marks omitted). "Preparation of
an EIS serves the national policy of protecting and promoting envi-
ronmental quality in two ways." Id. "First, it ensures that an agency,
when deciding whether to approve a project, will carefully consider,
or take a ‘hard look’ at, the project’s environmental effects." Id. "Sec-
ond, it ensures that relevant information about a proposed project will
be made available to members of the public so that they may play a
8 WILDS v. SOUTH CAROLINA DOT
role in both the decisionmaking process and the implementation of the
decision." Id. (internal citations omitted). In reviewing the agency’s
decision to issue a FONSI rather than perform an EIS, a court must
determine whether the agency took a "hard look" at the project’s
effects and whether the decision was arbitrary or capricious. See id.(addressing "hard look" in context of whether agency should have
issued a supplemental EIS). "[A]n agency takes a sufficient ‘hard
look’ when it obtains opinions from its own experts, obtains opinions
from experts outside the agency, gives careful scientific scrutiny and
responds to all legitimate concerns that are raised." Hughes River
Watershed Conservancy v. Johnson, 165 F.3d 283, 288 (4th Cir.
1999) (Hughes River II). "Although an agency should consider the
comments of other agencies, it does not necessarily have to defer to
them when it disagrees." Id. "Agencies are entitled to rely on the view
of their own experts. As long as the adverse environmental effects of
a proposed action are sufficiently identified and evaluated, an agency
is vested with discretion to determine under NEPA that other values
outweigh the environmental costs." Id. (internal quotation marks and
citations omitted).
In determining whether a project has a significant environmental
impact, an agency may not avoid significant environmental impact by
improperly "segmenting" a project by dividing the NEPA analysis of
a larger action with significant impacts into smaller actions with
insignificant impacts. Save Barton Creek Ass’n v. Fed. Highway
Admin., 950 F.2d 1129, 1140 (5th Cir. 1992). "Segmentation analysis
functions to weed out projects which are pretextually segmented, and
for which there is no independent reason to exist. When the segmenta-
tion project has no independent jurisdiction, no life of its own, or is
simply illogical when viewed in isolation, the segmentation will be
held invalid." Id. at 1139 (internal quotation marks and emphasis
omitted); 23 C.F.R. § 771.111(f) (2000).5 "Segmentation becomes
5
23 C.F.R. § 771.111(f) provides:
(f) In order to ensure meaningful evaluation of alternatives and
to avoid commitments to transportation improvements before
they are fully evaluated, the action evaluated in each EIS or find-
ing of no significant impact (FONSI) shall:
(1) Connect logical termini and be of sufficient length to
address environmental matters on a broad scope;
WILDS v. SOUTH CAROLINA DOT 9
suspect, however, only after an evaluation of such factors as whether
the proposed segment (1) has logical termini; (2) has substantial inde-
pendent utility; (3) does not foreclose the opportunity to consider
alternatives; and (4) does not irretrievably commit federal funds for
closely related projects." Save Barton Creek Ass’n, 950 F.2d at 1140.
"In the context of a highway within a single metropolitan area, as the
case at issue — as opposed to projects joining cities — courts have
focused more on the factor of ‘independent utility.’" Id.; see also
Coalition on Sensible Transp., Inc. v. Dole, 826 F.2d 60, 69 (D.C. Cir.
1987) (noting that courts focus more heavily on the independent util-
ity factor).
The magistrate judge, whose recommendation the district court
adopted, recognized the impermissibility of segmenting a project into
smaller parts in order to avoid preparing an EIS. He concluded, how-
ever, that the DOT did not improperly segment the projects because
the Eastern Connector had independent utility and logical termini and,
thus, was properly treated as a separate project from the Outer Loop
and the Pine Log project.6 The magistrate judge also concluded that
the EA for the Eastern Connector project adequately addressed air
quality and induced growth impacts for the project; that the EA for
the Eastern Connector project adequately considered alternatives to
the project; that the DOT gave proper notice of the public hearing;
and that the DOT did not act improperly by issuing its final EA on
(2) Have independent utility or independent significance,
i.e., be usable and be a reasonable expenditure even if no
additional transportation improvements in the area are made;
and
(3) Not restrict consideration of alternatives for other reason-
ably foreseeable transportation improvements.
6
It was likewise not improper for the DOT to segment the Pine Log
project from the Eastern Connector project and the Outer Loop. It is clear
that the widening of Pine Log Road will benefit traffic along Pine Log
Road regardless of whether the other projects are completed. Because the
Pine Log project merely widens a road that already exists, it is self-
evident that the Pine Log project has independent utility beyond its con-
nection to other projects.
10 WILDS v. SOUTH CAROLINA DOT
the same day as the FONSI because, among other reasons, the DOT
had issued its draft EA over a year before issuance of the FONSI.
We have reviewed the record, briefs, and pertinent case law on this
matter, and we have had the benefit of oral argument. Our careful
review persuades us that the rulings of the district court were correct.
See Wilds v. Slater, No. 3:97-1608-19BD (D. S.C. April 19, 2000).
Accordingly, we affirm the judgment of the district court.
AFFIRMED