Defenders of Wildlife v. North Carolina Department of Transportation ( 2014 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-2215
DEFENDERS OF WILDLIFE; NATIONAL WILDLIFE REFUGE ASSOCIATION,
Plaintiffs – Appellants,
v.
NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; ANTHONY J.
TATA, Secretary, North Carolina Department of
Transportation; FEDERAL HIGHWAY ADMINISTRATION; JOHN F.
SULLIVAN, III,
Defendants – Appellees,
and
CAPE HATTERAS ELECTRIC MEMBERSHIP CORPORATION,
Intervenor/Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Elizabeth City. Louise W.
Flanagan, District Judge. (2:11-cv-00035-FL; 2:12-mc-00001-FL)
Argued: May 13, 2014 Decided: August 6, 2014
Before DUNCAN and WYNN, Circuit Judges, and J. Michelle CHILDS,
United States District Judge for the District of South Carolina,
sitting by designation.
Affirmed in part, reversed in part, and remanded by published
opinion. Judge Wynn wrote the opinion, in which Judge Duncan
and Judge Childs joined.
ARGUED: Julia Furr Youngman, SOUTHERN ENVIRONMENTAL LAW CENTER,
Chapel Hill, North Carolina, for Appellants. Robert Lundman,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; John
Foster Maddrey, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh,
North Carolina, for Appellees. ON BRIEF: Nicholas S. Torrey,
SOUTHERN ENVIRONMENTAL LAW CENTER, Chapel Hill, North Carolina;
Jason C. Rylander, DEFENDERS OF WILDLIFE, Washington, D.C., for
Appellants. Ethan G. Shenkman, Acting Principal Deputy
Assistant Attorney General, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C.; Thomas G. Walker, United States Attorney,
Matthew L. Fesak, Assistant United States Attorney, Environment
& Natural Resources Division, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina; Roy Cooper, Attorney General,
Scott T. Slusser, Special Deputy Attorney General, Thomas D.
Henry, Assistant Attorney General, Colin A. Justice, Assistant
Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh,
North Carolina, for Appellees.
2
WYNN, Circuit Judge:
At the heart of this case are the past and future of the
Outer Banks, barrier islands along North Carolina’s Atlantic
coast. For decades, the Herbert C. Bonner Bridge (“Bonner
Bridge”) has provided highway access between mainland North
Carolina and the Outer Banks’s Hatteras Island. But the effects
of time threaten the structural integrity of the Bonner Bridge,
while large storms and changing coastal conditions threaten the
viability of the non-elevated portions of North Carolina Highway
12 (“NC 12”) south of the Bonner Bridge.
The North Carolina Department of Transportation (“NCDOT”)
and the Federal Highway Administration (“FHWA”) (collectively,
“Defendants”) sought a long-term transportation solution to
these problems and settled on a plan that essentially mirrors
what currently exists: replacing the Bonner Bridge and
maintaining NC 12 on Hatteras Island.
Defenders of Wildlife and the National Wildlife Refuge
Association (“Plaintiffs”) responded with this lawsuit.
Plaintiffs claim that Defendants violated the National
Environmental Policy Act (“NEPA”) and Section 4(f) of the
Department of Transportation Act of 1966 by, among other things,
committing to the construction of only one segment of the
transportation project—namely the replacement bridge—and denying
the public the full review of the entire project and its
3
environmental impact, as NEPA requires. Plaintiffs also contend
that Defendants violated Section 4(f) by, among other things,
improperly rejecting alternatives that would not have used
protected wildlife refuge land.
The district court brought Plaintiffs’ suit to a halt by
granting summary judgment in favor of Defendants. The district
court held, in part, that Defendants complied with NEPA and
Section 4(f) in researching, designing, and selecting their
project.
On appeal, we do not decide whether we agree with
Defendants’ policy choices or project preferences. Rather, we
must determine whether Defendants have complied with the law in
reaching their decisions. This has been no easy task, given the
tortured decisionmaking history of this project, the difficulty
of determining exactly what Defendants intend to construct, and
the extensive administrative record underlying the district
court’s decision. Nevertheless, for the reasons that follow, we
affirm the district court’s determination that Defendants
complied with NEPA, reverse the district court’s determination
that a special exception frees Defendants from complying with
Section 4(f), and remand for further proceedings.
4
I.
A.
Since the early 1990s, Defendants have been developing
plans to replace portions of NC 12, a two-lane highway that
traverses the Outer Banks. We refer to Defendants’ chosen plan—
the one currently under review by this Court—simply as “the
Project.” The Project involves the fifteen-mile portion of NC
12 running from the southern tip of Bodie Island, across the
Oregon Inlet, to the Village of Rodanthe, the northernmost
population center on Hatteras Island. The Oregon Inlet is a
relatively narrow and shallow channel of water formed in the
mid-1800s by severe storms.
Before 1963, when the Bonner Bridge was constructed over
the Oregon Inlet, motorists relied on ferries to travel between
Hatteras Island and the mainland. The two-lane Bonner Bridge is
approximately 2.4 miles long and carries over ten thousand
vehicles per day during the area’s busy summer tourist season.
After crossing the Oregon Inlet but before reaching
Rodanthe, NC 12 passes through thirteen miles of the Pea Island
National Wildlife Refuge (“Refuge”) and the Cape Hatteras
National Seashore (“Seashore”). These two natural areas are
owned and managed by the federal government, and they are major
destinations for many of the tourists who visit Hatteras Island.
5
Although the boundaries of the Seashore and the Refuge generally
overlap in the Project area, they are two distinct entities.
In 1938, President Roosevelt established the Refuge
pursuant to Executive Order 7864, issued under the Migratory
Bird Conservation Act. The Order stated that the land was to be
reserved “as a refuge and breeding ground for migratory birds
and other wildlife” and that “any private lands within the area
described shall become a part of the refuge hereby established
upon the acquisition of title thereto or lease thereof by the
United States[.]” Exec. Order No. 7864, 3 Fed. Reg. 734–35
(Apr. 12, 1938). During 1937 and 1938, the United States
government used condemnation proceedings to acquire the property
for the Refuge directly from the previous land owners. The
Refuge is managed by the United States Fish and Wildlife
Service, a bureau of the Department of the Interior (“DOI”).
In 1937, Congress created the Seashore as a protected
environment separate and distinct from the Refuge. Act of Aug.
17, 1937, Pub. L. No. 311, 50 Stat. 669. The Seashore contains
approximately 100 square miles of “primitive wilderness” on the
coast, “set apart . . . for the benefit and enjoyment of the
people[.]” Id. at 669. The United States government acquired
the land for the Seashore through several deeds from the State
of North Carolina. Today, the Seashore “is a publicly owned
6
park and recreation area that is owned by the federal government
and administered by the [National Park Service].” J.A. 1413.
When the Seashore was created, Congress emphasized the need
to protect it from development, stating that “no development of
the project [Seashore] or plan for the convenience of visitors
shall be undertaken which would be incompatible with the
preservation of the unique flora and fauna” in the area. Act of
Aug. 17, 1937, Pub. L. No. 311, § 4, 50 Stat. 669, 670. The
Seashore remains “72 miles . . . of open, virtually unspoiled
beach and scenic drive.” J.A. 1413.
During the 1940s, paved roads were built between the
villages on Hatteras Island, and in 1952, “a paved road was
constructed through Hatteras Island to the village of Hatteras.”
J.A. 1910. Exactly when and how the public right-of-way south
of the bridge was established is a matter of dispute discussed
in detail below. But the record reflects that it was not until
1951 that Congress authorized DOI to grant “a permanent easement
for the construction of a public road through . . . the Pea
Island National Wildlife Refuge” to the State of North Carolina.
Act of Oct. 29, 1951, Pub. L. No. 229, 65 Stat. 662. And it was
not until 1954 that DOI formally deeded the easement to North
Carolina.
Unfortunately, both the Bonner Bridge and the road have
suffered from the effects of time, ocean overwash, and erosion.
7
NCDOT has deemed the condition of the Bonner Bridge “poor” and
given it a “sufficiency rating of two out of 100.” J.A. 1256.
The condition of the surface road is no better. In its
narrowest places in the Refuge, Hatteras Island is just one-
quarter mile wide, and even under normal weather conditions,
portions of NC 12 are “threatened by shoreline erosion and
overwash.” J.A. 1256.
Despite moving NC 12 as far west as possible, 1 and
notwithstanding valiant efforts by its civil engineers and road
crews, NCDOT has not been able to ensure the uninterrupted
operation of the highway in recent years. In November 2009, for
example, Tropical Storm Ida rendered NC 12 impassable just north
of Rodanthe. Less than two years later, Hurricane Irene created
two breaches that closed NC 12 from August 2011 until October
2011. And in 2012, Hurricane Sandy “tore up the roadbed,
leveled the dunes, and damaged the sandbags” north of Rodanthe.
DOT struggling with Highway 12 repairs at the S-curves; more
ferries added for holiday, Island Free Press, Nov. 16, 2012,
http://islandfreepress.org/2012Archives/11.16.2012-DOTStruggling
WithHighway12RepairsAtTheScurvesMoreFerriesAddedForHoliday.html.
(saved as ECF opinion attachment).
1
NCDOT has had to seek DOI approval to reconstruct NC 12
west of its original right-of-way and outside the bounds of its
easement.
8
In light of the impact of storm events such as these,
merely replacing the Bonner Bridge would not achieve the central
purpose of the Project, which is to “[p]rovide a new means of
access from Bodie Island to Hatteras Island for its residents,
businesses, services, and tourists prior to the end of the
Bonner Bridge’s service life.” J.A. 2486. Indeed, as
Defendants’ own NEPA documents have put it: “Building Phase I
[the bridge replacement] alone would not meet the purpose and
need of the project[.]” J.A. 2493. Therefore, the Project now
“also includes NC 12 between the community of Rodanthe and
Oregon Inlet, a section of roadway that is at risk because of
shoreline erosion.” J.A. 2486.
B.
In 1991, NCDOT designated several “hot spots” along NC 12:
areas with a high rate of erosion and a high likelihood of
overwash creating a new inlet. That same year, transportation
officials began to plan for the replacement of the Bonner
Bridge. They completed a feasibility study and selected as
their NEPA preferred alternative 2 the “1993 Parallel Bridge
Corridor.” J.A. 785. This alternative consisted only of a
2
“Preferred alternative” is a NEPA term of art. An agency
must identify its preferred alternative “if one or more exists,
in the draft statement and . . . in the final statement unless
another law prohibits the expression of such a preference.” 40
C.F.R. § 1502.14(e).
9
replacement bridge. In 1993, Defendants completed a Draft
Environmental Impact Study and a Section 4(f) analysis for this
bridge-only preferred alternative.
However, nine years later, in 2002, officials decided “that
the 1993 Parallel Bridge Corridor was no longer a viable Bonner
Bridge replacement alternative,” J.A. 787, due in large part to
the ongoing beach erosion and “increased problems with ocean
overwash along NC 12 south of Bonner Bridge” that often rendered
the highway impassable. J.A. 786. Defendants perceived the
need to “lengthen the project limits . . . . [T]he prevailing
logic being that if those hot spots are impassible, [sic] what
good is the bridge?” J.A. 1787.
Accordingly, Defendants began assessing different
alternatives that addressed both the bridge and certain segments
of NC 12, preparing a Supplemental Draft Environmental Impact
Statement, and performing a new Section 4(f) Evaluation. These
assessments were consolidated into one document that was signed
and released to the public on September 12, 2005 (the “2005
Supplemental Draft Environmental Impact Statement/4(f)
Evaluation”).
The 2005 Supplemental Draft Environmental Impact
Statement/4(f) Evaluation analyzed five alternatives that were
located within two different geographic corridors. The first
corridor was described as the “Pamlico Sound Bridge Corridor,”
10
and the two alternatives within this corridor involved an 18-
mile-long bridge that extended from Bodie Island in the north to
Rodanthe in the south. Both of these alternatives, titled
“Pamlico Sound Bridge Corridor With Curved Rodanthe Terminus”
and “Pamlico Sound Bridge Corridor With Intersection Rodanthe
Terminus,” J.A. 781, avoided almost all of the Refuge and the
Seashore by making a large sweeping curve approximately five
miles west of Hatteras Island into Pamlico Sound before
rejoining existing NC 12 in Rodanthe.
The remaining three alternatives were located within the
“Parallel Bridge Corridor.” J.A. 781–82. These alternatives
all consisted of a replacement bridge that would span the Oregon
Inlet parallel to the existing Bonner Bridge, coupled with a
strategy for keeping “NC 12 open from the community of Rodanthe
to the Oregon Inlet bridge’s southern terminus[.]” J.A. 783.
These alternatives differed in their respective strategies for
keeping NC 12 open on Hatteras Island.
The first alternative—titled “The Nourishment Alternative”—
involved “beach nourishment plus dune enhancement . . . to
maintain a minimally adequate beach and dune system.” J.A. 783.
The protection afforded by the beach and dunes—which would need
to be replenished with dredged sand every few years—would
ostensibly allow NC 12 to remain in place.
11
The second alternative—titled “Road North/Bridge South”—
involved placing NC 12 “on a bridge west of Hatteras Island
beginning at a new intersection in Rodanthe and continuing to a
point approximately 2 miles . . . north of the Refuge’s southern
boundary where the project would meet existing NC 12.” J.A.
783. After that point, NC 12 would
then remain unchanged for 2.6 miles [and] . . . would
be relocated to a point 230 feet . . . west of the
forecast worst-case 2060 shoreline. This relocation
would continue 7.1 miles . . . north until the
relocated NC 12 would meet the Oregon Inlet bridge.
Three 10-foot-high dunes, totaling 2,100 feet . . .
would be built when needed as the shoreline erodes
towards the relocated road.
J.A. 783.
The final alternative within the Parallel Bridge Corridor
was called the “All Bridge Alternative,” in which “NC 12 would
be constructed on a bridge to the west of the existing road.”
J.A. 783. Notwithstanding its name, the All Bridge Alternative
would also include two surface road segments—one near the Oregon
Inlet and another “just north of the Refuge’s ponds where access
from NC 12 to the Refuge would be provided.” J.A. 783. The
2005 Supplemental Draft Environmental Impact Statement/4(f)
Evaluation explained that although all of the Parallel Bridge
Corridor alternatives were described and addressed “as three
separate alternatives, their components could be mixed and
12
matched geographically along the length of NC 12 to create other
variations.” J.A. 783.
The 2005 Supplemental Draft Environmental Impact
Statement/4(f) Evaluation did not select a preferred
alternative, and Defendants never issued a Final Environmental
Impact Statement. Instead, Defendants issued another supplement
in 2007. They titled this document the “Supplement to the 2005
Supplemental Draft Environmental Impact Statement and Draft
Section 4(f) Evaluation” (the “2007 Supplement”). The 2007
Supplement explains that it was issued to address the
“characteristics and potential direct, indirect, and cumulative
impacts of two additional detailed study alternatives.” J.A.
1091. These two new alternatives were titled: (1) “Parallel
Bridge Corridor With Phased Approach/Rodanthe Bridge;” and (2)
“Parallel Bridge Corridor With Phased Approach/Rodanthe
Nourishment.” J.A. 1096. The 2007 Supplement also explicitly
stated that “[u]nless otherwise noted, information presented in
the 2005 [Supplemental Draft Environmental Impact Statement] has
not changed and is not reproduced in this Supplement.” J.A.
1093.
The 2007 Supplement’s two new alternatives were variations
on a “Phased Approach” to the Project. Both alternatives
included “an Oregon Inlet bridge and elevating portions of NC 12
through the Refuge and northern Rodanthe on new bridges within
13
the existing NC 12 easement.” J.A. 1097. Both alternatives
were proposed to be built in four phases, with the construction
of the new Oregon Inlet bridge as the first phase. The
remaining phases would be constructed “as necessitated by
shoreline erosion.” J.A. 1097.
The only difference between the two new “Phased Approach”
alternatives was the manner in which NC 12 would be protected
from erosion. Under the “Phased Approach/Rodanthe Bridge
Alternative, the [new] bridge in the existing NC 12 easement
would begin in Rodanthe . . . and extend north to Oregon Inlet
except for the 2.1 mile . . . length of NC 12 in the southern
half of the Refuge that would not be threatened by erosion prior
to 2060.” J.A. 1097. “The Phased Approach/Rodanthe Nourishment
Alternative would be similar except the southern end of the NC
12 bridge would begin 0.3 mile . . . south of the
Refuge/Rodanthe border. Beach nourishment would be used to
protect NC 12 in Rodanthe.” J.A. 1097. And like the 2005
Supplemental Draft Environmental Impact Statement, the 2007
Supplement explained that all of the Parallel Bridge
Alternatives “could be mixed and matched geographically along
the length of NC 12 to create other variations.” J.A. 1097.
To review, then, the 2005 Supplemental Draft Environmental
Impact Statement and its 2007 Supplement analyzed in detail
seven alternatives: (1) Pamlico Sound Bridge Corridor With
14
Curved Rodanthe Terminus; (2) Pamlico Sound Bridge Corridor With
Intersection Rodanthe Terminus; (3) Parallel Bridge Corridor
With Nourishment; (4) Parallel Bridge Corridor With Road
North/Bridge South; (5) Parallel Bridge Corridor With All
Bridge; (6) Parallel Bridge Corridor With Phased
Approach/Rodanthe Bridge; and (7) Parallel Bridge Corridor With
Phased Approach/Rodanthe Nourishment.
In 2008, Defendants issued a Final Environmental Impact
Statement (“2008 Final Environmental Impact Statement”) that
analyzed the seven alternatives covered by the 2005 and 2007
documents. The Final Environmental Impact Statement stated that
the preferred alternative was the Parallel Bridge Corridor With
Phased Approach/Rodanthe Bridge. J.A. 1229. The Final
Environmental Impact Statement clearly explained that the
preferred alternative and the other Phased Approach alternative
that was added in the 2007 Supplement—the Parallel Bridge
Corridor With Phased Approach/Rodanthe Nourishment—would remain
“within the existing NC 12 easement.” J.A. 1230. The Final
Environmental Impact Statement noted that Defendants chose the
preferred alternative based on several factors, including: “the
ability of the alternatives considered to meet the project’s
purpose and need; environmental consequences; opportunities
available to mitigate impacts; cost; public and agency comment
[on the 2005 Supplemental Draft Environmental Impact
15
Statement/4(f) Evaluation and the 2007 Supplement]; and other
findings presented in this [Final Environmental Impact
Statement].” J.A. 1231.
But at the end of the comment period, Defendants did not
issue a Record of Decision. 3 Instead, sometime between late 2008
and early 2009, Defendants decided “to revisit” their preferred
alternative “because of consideration and evaluation given to
comments received on the [Final Environmental Impact Statement]
and the Section 4(f) Evaluation included in the [Final
Environmental Impact Statement].” J.A. 1812. Defendants also
claimed to have “obtained additional information, which also
contributed to the re-evaluation” of the preferred alternative.
J.A. 1812. This “additional information” consisted of what
Defendants characterized as “substantial evidence that a public
vehicular thoroughfare existed across the length of the project
area before the Refuge and Seashore were established.” J.A.
3
An agency must “prepare a concise public record of
decision.” 40 C.F.R. § 1505.2. The Record of Decision must
“[s]tate what the decision was[,]” id. § 1505.2(a), “[i]dentify
all alternatives considered . . . specifying the alternative or
alternatives which were considered to be environmentally
preferable[,]” id. § 1505.2(b), and “[s]tate whether all
practicable means to avoid or minimize environmental harm from
the alternative selected have been adopted, and if not, why they
were not[,]” id. § 1505.2(c). Until an agency issues its Record
of Decision, “no action concerning the proposal shall be taken
which would: (1) [h]ave an adverse environmental impact; or (2)
[l]imit the choice of reasonable alternatives” for the project.
Id. § 1506.1(a).
16
1814. Defendants explained that “[t]his new information changes
[the] FHWA analysis required by Section 4(f).” J.A. 1814.
To support their assertions regarding the history of the NC
12 right-of-way, Defendants created a document titled “NC 12
Right-of-Way Timeline.” J.A. 1834–48. In the spring of 2009,
Defendants distributed this document at a meeting with
representatives of state and federal agencies involved in the
Project. The meeting agenda for that day indicates that
Defendants planned to designate the Road North/Bridge South
Alternative as the new Preferred Alternative. 4 J.A. 1811.
During that meeting, a representative from the
Environmental Protection Agency (“EPA”) put forth the idea of
first building the replacement for the Bonner Bridge and then
examining the rest of the Project “in more detail when future
4
The Road North/Bridge South Alternative was first
introduced in the 2005 Supplemental Draft Environmental Impact
Statement/4(f) Evaluation. As discussed ante at 12, it involved
a complicated mix of a new bridge west of Hatteras Island near
Rodanthe, a road both in the existing easement and well into the
Refuge, several dunes, and a new bridge parallel to the Bonner
Bridge. Defendants’ stated reasons for favoring this
alternative in 2009 were (1) improved public access to the
Refuge; (2) consistency with the historic landscape; (3) ability
to mitigate significant impacts on the “wildlife features of the
Refuge;” (4) substantial cost difference; (5) less impact on
waterfowl; and (6) shorter construction timeframe and fewer
construction impacts. J.A. 1821–23.
17
conditions are more known.” J.A. 1886. The EPA representative
characterized this idea as “adaptive management[.]” 5 J.A. 1886.
Not everyone at the meeting was completely on board with
this idea, however. Specifically, Pete Benjamin, a
representative with the U.S. Fish and Wildlife Service stated
that “he was trying to decide if adaptive management was
appropriate for this project” but had reservations regarding
“whether or not [the agencies] could identify in the future a
solution through the Refuge that is legal from the perspective
of all of the agencies involved.” J.A. 1887. He went on to say
that the agencies “need[ed] more than just the ‘hope’ [of
finding] an appropriate future solution.” J.A. 1887. After the
meeting, Mr. Benjamin sent NCDOT a letter explaining that the
information that Defendants presented to the meeting
participants “contained many incorrect statements and findings
5
Adaptive management is “a set of policy tools” directed at
“ensuring the sustainability” of natural resources within
distinct ecosystems. J.B. Ruhl et al., The Practice and Policy
of Environmental Law 140 (2d ed. 2010). It allows agencies to
“‘continually research[], monitor[], and evaluat[e] the
ecological conditions of ecosystems’” and to modify their
efforts to restore those ecosystems based on that research. Id.
(quoting U.S. Gen. Accounting Office, Ecosystem Management,
Additional Actions Needed to Adequately Test a Promising
Approach 49 (1994). Agencies may use adaptive management to
mitigate adverse environmental impacts. See, e.g., Theodore
Roosevelt Conservation P’ship v. Salazar, 616 F.3d 497, 517
(D.C. Cir. 2010). But adaptive management is not a method
through which agencies can defer decisionmaking about how a
resource will be used. See id. at 505-06, 516.
18
that have the potential to improperly influence decision-making
as the process moves forward.” J.A. 1892. He took issue with
Defendants’ assessments regarding the environmental impact on
the Refuge, and he expressed the belief that “NCDOT cannot
demonstrate that it has a right to move its easement for NC-12
to any other location within the Refuge.” J.A. 1896.
Notwithstanding such reservations, Defendants began to
pursue yet another new multi-phase alternative—one that differed
from the previously studied alternatives. In October 2009, FHWA
released a “Revised Final Section 4(f) Evaluation” (“2009
Section 4(f) Evaluation”). This document provided the public
with its first notice of “the new Preferred Alternative—the
‘Parallel Bridge Corridor with NC 12 Transportation Management
Plan.’” J.A. 1904. Defendants explained it as follows:
This alternative would replace the current [Bonner
Bridge] with a new bridge located to the west of the
existing bridge (Phase I). The replacement bridge
location in the Refuge is limited to the area
necessary to safely construct and tie-in the new
bridge to NC 12. Under the Parallel Bridge Corridor
with NC 12 Transportation Management Plan Alternative,
later phases of actions to manage NC 12 through 2060
would be decided based on actual conditions existing
on Hatteras Island at the point in time that
additional action becomes necessary. These later
phases could consist of, but would not be limited to,
one or more components of any of the alternatives
already studied as part of the environmental review
process[.]”
J.A. 1904-05 (emphasis added).
19
FHWA also explained that “[b]ased on . . . newly obtained
information,” its determinations regarding the applicability of
Section 4(f) had changed. J.A. 1907. Specifically, FHWA stated
that Section 4(f) applied only to the Pea Island National
Wildlife Refuge “as a historic property[,]” rather than “as a
refuge.” 6 J.A. 1913-14. FHWA based this assertion on evidence
that it claimed “demonstrate[d] that the Federal and State
governments preserved the Hatteras Island area with an
understanding that vehicular passage would be accommodated, and
that the vehicular passage has not been fixed to one location.”
J.A. 1913.
FHWA went on to state that “the history indicates that the
Refuge, transportation facility and existing Bonner Bridge were
concurrently and jointly planned and developed by the Federal
and State governments working together to preserve the land for
6
The distinction between a refuge and a historic property
can be significant. For example, before making a finding of de
minimis impact regarding refuge property, the Secretary must
provide an opportunity for public review and comment. 49 U.S.C.
§ 303(d)(3). There is no similar requirement for historic
sites. 49 U.S.C. § 303(d)(2). See also 23 C.F.R. §
774.5(b)(1)(iii) (imposing no public participation requirement
beyond the minimal encouragement of public involvement included
in the National Historic Preservation Act and 36 C.F.R. §
801.8). Also, refuges are presumed to be significant resources
unless the official with jurisdiction over the property makes an
express determination to the contrary. 23 C.F.R. § 774.11(c).
Historic sites, on the other hand, are considered significant
only if they are included in, or are eligible for, the National
Register of Historic Places. 23 C.F.R. § 774.11(e).
20
wildlife while maintaining a means for safe and efficient
vehicular transportation.” J.A. 1913. The 2009 Section 4(f)
Evaluation explained that “it is FHWA’s revised determination
that Section 4(f) is not applicable to the Refuge (as a refuge),
as the impacts resulting from relocating NC 12 from its current
alignment through the Refuge would not be considered a use as
defined in 23 C.F.R. § 774.17.” J.A. 1913. FHWA concluded that
it “is not required to make a specific Section 4(f) approval for
use prior to approving the project.” J.A. 1913.
On May 7, 2010, Defendants issued an Environmental
Assessment 7 that “identifie[d] and assesse[d] changes that have
occurred since the approval of the Final Environmental Impact
Statement/Final Section 4(f) Evaluation on September 17, 2008.”
J.A. 2151. The Environmental Assessment broadly described the
Project as “the construction of a bridge to replace the Herbert
7
An Environmental Assessment is “a concise public document”
intended to “provide sufficient evidence and analysis for
determining whether to prepare an environmental impact statement
or a finding of no significant impact.” 40 C.F.R. §
1508.9(a)(1); see also Friends of Back Bay v. U.S. Army Corps of
Eng’rs, 681 F.3d 581, 584 (4th Cir. 2012) (noting that an EA is
used “[t]o determine whether a particular action meets the
threshold of significantly affecting environmental quality” such
that an agency is required to complete an Environmental Impact
Statement pursuant to 40 C.F.R. § 1502.3) (internal quotation
marks omitted). An Environmental Assessment is “more limited”
than an Environmental Impact Statement in its analysis of the
potential environmental impacts. Dep’t of Transp. v. Pub.
Citizen, 541 U.S. 752, 757 (2004).
21
C. Bonner Bridge in Dare County, the demolition and removal of
Bonner Bridge, and improvements to NC 12 between the community
of Rodanthe and Oregon Inlet.” J.A. 2151. The Environmental
Assessment was intended to provide the public with notice under
NEPA of “the new Preferred Alternative, eventually titled the
Parallel Bridge Corridor with NC 12 Transportation Management
Plan[.]” J.A. 2178.
In approximately seven short pages of text and three maps,
Defendants explained that the new preferred alternative would
consist of multiple phases. The first phase would be the
construction of a new Oregon Inlet bridge “as soon as possible,”
J.A. 2177, and in a slightly different location from that which
had previously been evaluated. Defendants clarify in their
appellate brief that “the replacement bridge would use the
existing Highway 12 easement.” Appellees’ Br. at 37 (citing
J.A. 2493). The amorphously titled “Later Phases”—also
sometimes referred to as the “NC 12 Transportation Management
Plan”—“would be finalized through commitments made in the Record
of Decision.” J.A. 2182–83.
The Environmental Assessment went on to explain that, with
respect to the “Later Phases,” the “Parallel Bridge Corridor
with NC 12 Transportation Management Plan Alternative
(Preferred) does not specify a particular action at this time on
Hatteras Island beyond the limits of Phase I because of the
22
inherent uncertainty in predicting future conditions within the
dynamic coastal barrier island environment.” J.A. 2182.
Rather, “the alternative addresses the study and selection of
future actions on Hatteras Island . . . through a comprehensive
NC 12 Transportation Management Plan.” J.A. 2182.
The Environmental Assessment does not contain a
“transportation management plan” as that term is typically
understood. 8 Rather, it contains approximately four pages that
describe how the “plan” consists of “a comprehensive coastal
monitoring program,” J.A. 2183, “[e]nvironmental [r]eview for
[f]uture [p]hases,” J.A. 2185, and the “[s]election of [f]uture
[p]hases for [i]mplementation,” J.A. 2185. Defendants’ “plan”
8
The term “transportation management plan” refers to a
comprehensive document that “lays out a set of strategies for
managing the work zone impacts of a project.” Transportation
Management Plan Examples—FHWA Work Zone, http://www.ops.fhwa.
dot.gov/wz/resources/final_rule/tmp_examples.htm. (saved as ECF
opinion attachment). A reasonable reader might expect to find
such a document somewhere in the record, given statements made
in the Record of Decision, such as: “The Transportation
Management Plan will guide the implementation of future phases
of the project through 2060.” J.A. 2497. “The NC 12
Transportation Management Plan . . . provides a detailed plan to
closely monitor the coastal conditions for environmental changes
over the next 50 years along with changes in associated road
maintenance activities.” J.A. 2497–98. “The NC 12
Transportation Management Plan then describes the process for
decision-making regarding the future phase actions.” J.A. 2498.
Some of these statements also appear in the EA. See J.A. 2182–
83.
23
is simply to decide what to do with the remainder of NC 12 on
Hatteras Island at some point in the future. 9
Defendants claimed that “[b]y actively monitoring the
conditions and delaying decisionmaking, the environmental
impacts can be better quantified, minimized, and mitigated.”
J.A. 2182. Defendants also stated that “[t]his process is
somewhat analogous to a tiered NEPA study, in that the entire
end-to-end impacts have been studied but the detailed selection
of a portion of the action is being delayed.” J.A. 2182.
On December 20, 2010, FHWA issued a Record of Decision that
authorized NCDOT to construct, and FHWA to substantially fund,
the Project described in the revised Section 4(f) Evaluation and
the Environmental Assessment. The Record of Decision explains
that the Project “is a mix and match of the Parallel Bridge
Corridor alternatives assessed in the 2008 [Final Environmental
Impact Statement].” J.A. 2488. “It calls for Phase I (Oregon
Inlet bridge) to be built as soon as possible, followed by
construction of later phases whose details would be determined,
9
It seems that Defendants may already be proceeding with
future phases. See J.A. 2682, N.C. Dep’t of Transp., Bonner
Bridge Public Workshops Handout (2011) (“NCDOT has started work
on long-term solutions for [breached locations along N.C. 12 in
northern Rodanthe and the Pea Island National Wildlife Refuge],
which combined are considered Phase II of the Bonner Bridge
Replacement Project.”); see also J.A. 2693 (discussing NCDOT’s
plan to issue contracts for the two breach sites in August and
December 2012).
24
reevaluated, and documented through interagency collaboration as
project area conditions warrant.” J.A. 2488.
The Record of Decision also contains a section that
responds to comments made by government agencies regarding the
new preferred alternative. The Army Corps of Engineers
submitted a comment noting that the Final Environmental Impact
Statement (on which the Environmental Assessment was based)
“would confine future NC 12 maintenance in the Refuge, including
storm-related maintenance, to the existing NC 12 easement, after
the issuance of the Record of Decision for the project.” J.A.
2586–87. Defendants responded as follows:
The proposal in Section 4.6.8.6 of the Final
Environmental Impact Statement to confine future NC 12
maintenance activities within the existing easement
applied only to the Phased Approach Alternatives,
which were developed with the requirement that all
work within the Refuge must be confined within the
existing easement. That requirement does not exist
with the NC 12 Transportation Management Plan.
J.A. 2587 (emphasis added).
Given the foregoing, this Court understands the Project as
follows: Construction of a new two-lane bridge that runs
parallel to the existing Bonner Bridge and uses the existing NC
12 easement, followed by “the study and selection of future
actions on Hatteras Island beyond the limits of Phase I through
a comprehensive NC 12 Transportation Management Plan[,]” J.A.
2497, with the purpose of said Plan being to “guide the
25
implementation of future phases of the project through 2060,”
J.A. 2497, and with future phases not necessarily confined to
the existing NC 12 easement, J.A. 2587.
C.
Plaintiffs sued on July 1, 2011, and the parties filed
cross-motions for summary judgment in July and September of
2012. On September 16, 2013, the district court granted
Defendants’ motion and denied Plaintiffs’ motion. Defenders of
Wildlife v. N.C. Dep’t of Transp., 971 F. Supp. 2d 510, 513
(E.D.N.C. 2013).
1.
Regarding Plaintiffs’ NEPA claim, the district court
explained that Defendants did not violate NEPA by issuing an
“EIS [that] only covers the Bonner Bridge replacement, with
future studies planned for later construction phases along the
NC 12 corridor.” Id. at 526. It also noted that the bridge
project can stand alone “due to concerns as to changing
conditions and weather events impacting the shoreline on
Hatteras Island.” Id. at 524.
To reach this determination, the district court analyzed
whether the Project violated FHWA’s NEPA regulations pertaining
to segmentation, which require that a project have logical
termini and independent utility and not restrict the selection
of future phases. The district court explained that “the
26
factual circumstances surrounding this case are unique[,]” id.
at 525, and that “the northern end of Hatteras Island
constitutes a logical terminus for the Project” due to the
constantly changing conditions on Hatteras Island, id. at 524.
The district court also stated that the Project “is a reasonable
expenditure independent of additional transportation
improvements,” and that the fact “that NC 12 requires
maintenance . . . does not ruin the substantial utility of
replacing a bridge that is reaching the end of its service
life.” Id. at 525–26. Finally, the district court determined
that “no particular action is automatically triggered in later
phases” by the construction of the bridge alone. Id. at 526
(internal quotation marks omitted).
2.
The district court also held that Defendants did not
violate Section 4(f). First, the district court determined that
“FHWA properly relied on the joint planning exception with
respect to the Refuge.” Id. at 534. The district court
concluded that the “[f]ederal and state governments preserved
the Hatteras Island area with an understanding that vehicular
passage would be accommodated, and that the vehicular passage
has not been fixed to one location[.]” Id. In reaching this
determination, the district court relied on the following
evidence: (1) the depiction of an unimproved road through the
27
Refuge on a 1942 Coast Guard map; (2) a 1939 application for a
ferry permit that describes ferry service beginning in 1926; (3)
photos of ferries carrying cars; (4) North Carolina highway maps
from 1944 and 1949; (5) 1938 reports from the manager of the
Refuge that refer to a “public road;” (6) a 1951 U.S. Senate
debate in which North Carolina Senator Willis Smith “asserted
the State’s ownership of the road;” (7) Public Law 229, which,
in 1951, authorized DOI to grant an easement to North Carolina
for a road; (8) a 1954 quitclaim deed granted by North Carolina
to the federal government covering any interest in the land,
with the exception of “a previously granted 100-foot easement;”
and (9) a 100-foot easement granted by DOI to North Carolina in
1954 for construction and maintenance of NC 12. Id. 533–34.
The district court also briefly addressed the substantive
requirements of Section 4(f) and concluded that FHWA had
complied with them. Specifically, the district court determined
that no prudent alternative existed, that the “[selected]
alternative will cause the least overall harm,” and that “FHWA .
. . conducted all possible planning to minimize harm.” Id. at
535.
This appeal followed. Plaintiffs argue that the district
court erred in its determinations regarding: (1) whether
Defendants engaged in improper segmentation in violation of
NEPA; (2) the applicability of the joint planning exception to
28
Section 4(f); and (3) whether Defendants complied with the
substantive requirements of Section 4(f). We turn now to a
description of the law governing these issues.
II.
A.
At the outset, we must correct a major error on which the
district court’s analysis was based: The district erroneously
defined the scope of the Project when it noted that “the current
[Environmental Impact Statement] only covers the Bonner Bridge
replacement, . . . .” Id. at 526. This statement contradicts
the entire record, and in making it, the district court invented
a project that Defendants’ NEPA documents under review expressly
disown. 10
10
Although it acknowledged the existence of future phases,
the district court analyzed the Project as if it consisted of
only the replacement bridge over the Oregon Inlet, and it
concluded that such a Project did not violate NEPA's anti-
segmentation principles. As discussed below, we reject the
district court’s approach because it was based on a project
other than the one described in the record. We note that the
district court’s analysis may have been appropriate if
Plaintiffs had, for example, demonstrated that none of
Defendants’ studied alternatives for NC 12 south of the bridge
could be constructed as a matter of fact. If that were the
case, then the replacement bridge would be required to connect
“logical termini,” 23 C.F.R. § 771.111(f)(1), have “independent
utility,” 23 C.F.R. § 771.111(f)(2), and “[n]ot restrict
consideration of alternatives for other reasonably foreseeable
transportation improvements,” 23 C.F.R. § 771.111(f)(3). We do
not pass upon the correctness of the district court’s illegal
(Continued)
29
Since at least 2002, Defendants have made plain that the
purpose of the Project is to “[p]rovide a new means of access
from Bodie Island to Hatteras Island for its residents,
businesses, services, and tourists prior to the end of the
Bonner Bridge’s service life.” J.A. 2486. This purpose cannot
be fulfilled by the bridge alone because the entire northern
part of Hatteras Island is occupied by the Seashore and the
Refuge. The bridge is essentially worthless without a means of
conveying motorists from its southern terminus to the Village of
Rodanthe, which is the northernmost point where the residents,
businesses, and services on Hatteras Island are located. See,
e.g., J.A. 2493 (stating in the Record of Decision that
“[b]uilding Phase I alone would not meet the purpose and need of
the project”).
As Defendants stated in their Record of Decision, the
Project “is a mix and match of the Parallel Bridge Corridor
Alternatives assessed in the 2008 [Final Environmental Impact
Statement].” 11 J.A. 2488. According to the Record of Decision,
segmentation analysis because nothing in the record on appeal
indicates that Defendants cannot construct at least one of their
previously studied alternatives.
11
To recap, these five alternatives were titled: (1)
Parallel Bridge Corridor With Nourishment; (2) Parallel Bridge
Corridor With Road North/Bridge South; (3) Parallel Bridge
Corridor With All Bridge; (4) Parallel Bridge Corridor With
(Continued)
30
the Project “calls for Phase I (Oregon Inlet bridge) to be built
as soon as possible, followed by construction of later phases
whose details would be determined, reevaluated, and documented
through interagency collaboration as project area conditions
warrant.” J.A. 2488.
It is true that the Project’s only definite component at
this time is the construction of a “Parallel Bridge” across
Oregon Inlet within the existing easement. Beyond that, the
“plan” is to “delay[] decision-making,” ostensibly “because of
the inherent uncertainty in predicting future conditions within
the dynamic coastal barrier island environment.” J.A. 2497.
Nonetheless, Defendants have clearly committed themselves to
doing something between the southern terminus of the bridge and
Rodanthe—they simply have not (at least publicly) chosen what.
One way to resolve this case would be to remand all of it
to the district court with instructions to fully evaluate the
actual Project that Defendants proposed. However, “[a]n
appellee may defend, and this Court may affirm, the district
Phased Approach/Rodanthe Bridge (Preferred); and (5) Parallel
Bridge Corridor With Phased Approach/Rodanthe Nourishment. The
2008 Final Environmental Impact Statement also included the two
alternatives that consisted of a long bridge in Pamlico Sound:
(1) Pamlico Sound Bridge Corridor With Curved Rodanthe Terminus;
and (2) Pamlico Sound Bridge Corridor With Intersection Rodanthe
Terminus.
31
court’s judgment on any basis supported by the record.” Sloas
v. CSX Transp., Inc., 616 F.3d 380, 388 n.5 (4th Cir. 2010).
Because both parties have adequately briefed and argued the
issues using the properly defined Project, we proceed to our
analyses of the NEPA and Section 4(f) arguments in this case.
B.
Summary judgment is appropriate “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). We review a grant of summary judgment de novo,
Nat’l Audubon Soc’y v. Dep’t of the Navy, 422 F.3d 174, 185 (4th
Cir. 2005), taking the facts in the light most favorable to the
non-moving party. Anderson v. Liberty Lobby, Inc. 477 U.S. 242,
255 (1986).
Because the district court’s grant of summary judgment
disposed of cross-motions for summary judgment, “we consider
each motion separately on its own merits to determine whether
either of the parties deserves judgment as a matter of law.”
Bacon v. City of Richmond, Va., 475 F.3d 633, 638 (4th Cir.
2007) (internal quotation marks omitted). In considering each
motion, we “resolve all factual disputes and any competing,
rational inferences in the light most favorable to the party
opposing that motion.” Rossignol v. Voorhaar, 316 F.3d 516, 523
(4th Cir. 2003) (internal quotation marks omitted).
32
The Administrative Procedure Act (“APA”) governs our review
of agency actions under NEPA and Section 4(f). See N.C.
Wildlife Fed’n v. N.C. Dep’t of Transp., 677 F.3d 596, 601 (4th
Cir. 2012); Hickory Neighborhood Def. League v. Skinner, 893
F.2d 58, 61 (4th Cir. 1990). A reviewing court may set aside an
agency action that was “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law[.]” 5
U.S.C. § 706(2)(A); see Dep’t of Transp. v. Pub. Citizen, 541
U.S. 752, 763 (2004); Marsh v. Or. Natural Res. Council, 490
U.S. 360, 375–76 (1989). “This inquiry must ‘be searching and
careful,’ but ‘the ultimate standard of review is a narrow
one.’” Marsh, 490 U.S. at 378 (quoting Citizens to Pres.
Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971)). Our
review is de novo, “without deference to the district court’s
resolution of the issue.” Friends of Back Bay v. Army Corps of
Eng’rs, 681 F.3d 581, 587 (4th Cir. 2012).
III.
A.
The National Environmental Policy Act of 1969, 42 U.S.C. §§
4321–4370f, “establishes a ‘national policy [to] encourage
productive and enjoyable harmony between man and his
environment,’ and was intended to reduce or eliminate
environmental damage and to promote ‘the understanding of the
33
ecological systems and natural resources important to’ the
United States.” Pub. Citizen, 541 U.S. at 756 (2004) (quoting
42 U.S.C. § 4321). All actions undertaken by a federal agency
“with effects that may be major and which are potentially
subject to Federal control and responsibility[,]” and all
“projects and programs entirely or partly financed, assisted,
conducted, regulated, or approved by federal agencies” must
comply with both NEPA and the regulations promulgated by the
Council on Environmental Quality. 12 40 C.F.R. § 1508.18.
NEPA mandates “a set of ‘action-forcing’ procedures that
require that agencies take a ‘hard look’ at environmental
consequences, . . . and that provide for broad dissemination of
relevant environmental information.” Robertson v. Methow Valley
Citizens Council, 490 U.S. 332, 350 (1989) (internal quotation
marks and citation omitted). Because NEPA “does not mandate
particular results, but simply prescribes the necessary
process[,]” it “prohibits uninformed—rather than unwise—agency
12
The Council on Environmental Quality is the executive
agency responsible for promulgating regulations that implement
NEPA. See 42 U.S.C. § 4342; Exec. Order No. 11,991, 42 Fed.
Reg. 26,967 (May 25, 1997). Courts give “substantial deference”
to the Council on Environmental Quality’s regulations. Nat’l
Audubon Soc’y v. Dep’t of the Navy, 422 F.3d 174, 184 (4th Cir.
2005) (quoting Andrus v. Sierra Club, 442 U.S. 347, 358 (1979)).
Additionally, each federal agency must ensure that it complies
with NEPA, and FHWA has established its own regulations for this
purpose. See 23 C.F.R. § 771.101.
34
action.” Id. at 350–51. “[T]he broad dissemination of
information mandated by NEPA permits the public and other
government agencies to react to the effects of a proposed action
at a meaningful time.” Marsh, 490 U.S. at 371.
Under NEPA, for every “major Federal action[] significantly
affecting the quality of the human environment,” the agency
involved must prepare “a detailed statement” that discloses and
evaluates, among other things, “the environmental impact of the
proposed action,” unavoidable adverse effects of the proposed
action, and “alternatives to the proposed action.” 42 U.S.C. §
4332(2)(C). Every Environmental Impact Statement must “provide
full and fair discussion of significant environmental impacts”
arising from the reasonable alternatives. 40 C.F.R. § 1502.1.
An agency’s comparative evaluation of alternatives to the
proposed action “is the heart of the environmental impact
statement” because it “sharply defin[es] the issues and
provid[es] a clear basis for choice among options by the
decisionmaker and the public.” 40 C.F.R. § 1502.14. Therefore,
agencies must “[r]igorously explore and objectively evaluate all
reasonable alternatives[.]” Id. § 1502.14(a). The assessment
of the environmental impacts is the “scientific and analytic
basis for the comparison[]” of alternatives. 40 C.F.R. §
1502.16. “[A]gencies must measure the indirect and cumulative
environmental effects of proposed actions. . . . Conclusory
35
statements that the indirect and cumulative effects will be
minimal or that such effects are inevitable are insufficient
under NEPA.” N.C. Wildlife Fed’n, 677 F.3d at 602 (citation
omitted).
“NEPA does not require agencies to adopt any particular
internal decisionmaking structure.” Balt. Gas & Elec. Co. v.
Natural Res. Def. Council, 462 U.S. 87, 100 (1983). But NEPA
does require agencies to follow a particular decisionmaking
process. For example, Environmental Assessments and
Environmental Impact Statements must be completed “before
decisions are made and before actions are taken.” 40 C.F.R. §
1500.1(b); see also id. § 1500.1(c) (stating that “the NEPA
process is intended to help public officials make decisions that
are based on understanding of environmental consequences”).
Also, NEPA imposes a continuing obligation on agencies to
consider the environmental impacts of a proposed action, even
after a Final Environmental Impact Statement has been issued.
An agency must issue a supplemental Environmental Impact
Statement if the agency “makes substantial changes in the
proposed action that are relevant to environmental concerns” or
if “[t]here are significant new circumstances or information
relevant to environmental concerns and bearing on the proposed
action or its impacts.” 40 C.F.R. § 1502.9(c)(1)(i), (ii).
36
This case implicates the regulations pertaining to illegal
segmentation of the analysis of environmental impacts as well as
those pertaining to the permissible “tiering” of the analysis of
impacts. We discuss each in turn below.
B.
Agencies may not engage “in segmentation, which involves
‘an attempt to circumvent NEPA by breaking up one project into
smaller projects and not studying the overall impacts of the
single overall project.’” Webster v. U.S. Dep’t of Agric., 685
F.3d 411, 426 (4th Cir. 2012) (quoting Coal. on W. Valley
Nuclear Wastes v. Chu, 592 F.3d 306, 311 (2d Cir. 2009)).
Specifically, “[p]roposals or parts of proposals which are
related to each other closely enough to be, in effect, a single
course of action shall be evaluated in a single impact
statement.” 40 C.F.R. § 1502.4(a). Proposed projects are
considered “connected if they: (i) Automatically trigger other
actions which may require environmental impact statements[;]
(ii) Cannot or will not proceed unless other actions are taken
previously or simultaneously[; or] (iii) Are interdependent
parts of a larger action and depend on the larger action for
their justification.” Id. § 1508.25(a)(1). Agencies must also
assess “[c]umulative actions,” and “[s]imilar actions” with
“common timing or geography” in the same impact statement. Id.
§ 1508.25(a)(2)–(3).
37
FHWA’s anti-segmentation regulations are designed to
“ensure meaningful evaluation of alternatives and to avoid
commitments to transportation improvements before they are fully
evaluated[.]” 23 C.F.R. § 771.111(f). Each action evaluated
must:
(1) Connect logical termini and be of sufficient
length to address environmental matters on a broad
scope;
(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 reasonably foreseeable transportation
improvements.
Id. § 771.111(f)(1)-(3).
To evaluate whether a project connects logical termini,
courts look to the purpose and need of the project as stated in
the Environmental Impact Statement. See Indian Lookout Alliance
v. Volpe, 484 F.2d 11, 18 (8th Cir. 1973) (“If the major
objective of a proposal is to connect two cities by expressway,
then these two termini should determine the proper scope of the
[Environmental Impact Statement].”). Additionally, logical
termini are often obvious because of their connection to
“crossroads, population centers, major traffic generators, or
similar highway control elements.” Conservation Law Found. v.
Fed. Highway Admin., 24 F.3d 1465, 1472 (1st Cir. 1994).
38
The independent utility test also determines whether
related actions or projects must be evaluated in a single
Environmental Impact Statement. Webster, 685 F.3d at 426.
Courts inquire into “whether each project would have taken place
in the other’s absence. . . . If so, [the projects] have
independent utility and are not considered connected actions.”
Id. When determining whether an action has independent utility,
courts consider the benefits and uses that will occur as a
result of that action, even if no other construction is done in
the area. For example, in James River v. Richmond Metropolitan
Authority, this Court upheld a determination that Richmond’s
Downtown Expressway and I-195 had independent utility because
each segment independently allowed traffic to access parts of
the downtown area and other major highways more easily. 359 F.
Supp. 611, 636 (E.D. Va. 1973), aff’d per curiam, 481 F.2d 1280(4th Cir. 1973). See also Save Barton Creek Ass’n v. Fed.
Highway Admin., 950 F.2d 1129, 1141–42 (5th Cir. 1992) (holding
that one portion of a highway loop had independent utility
because, standing alone, the project alleviated traffic,
improved access to residential, commercial, and recreational
areas, and connected to major roadways).
C.
By contrast, a tiered or multiphase NEPA analysis may be
appropriate for agencies that are “contemplating large or
39
complex projects.” Shenandoah Valley Network v. Capka, 669 F.3d
194, 196 (4th Cir. 2012). In fact, “[a]gencies are encouraged
to tier their environmental impact statements to eliminate
repetitive discussions of the same issues and to focus on the
actual issues ripe for decision at each level of environmental
review . . . .” 40 C.F.R. § 1502.20.
A properly tiered analysis consists of “a broad
environmental impact statement” followed by “a subsequent
statement or environmental assessment . . . on an action
included within” the program or policy contemplated in the broad
statement. 40 C.F.R. § 1502.20 (emphasis added). The
subsequent statement “shall concentrate on the issues specific
to the subsequent action[,]” and it “need only summarize the
issues discussed in the broader statement[.]” Id.Tiering may never be used to “avoid consideration of
reasonable alternatives by making a binding site-specific
decision at the programmatic stage without analysis, deferring
consideration of site-specific issues to a [subsequent
Supplemental Environmental Impact Statement].” ‘Ilio‘ulaokalani
Coal. v. Rumsfeld, 464 F.3d 1083, 1101 (9th Cir. 2006). And the
dividing line between illegal segmentation and permissible
tiering is an agency’s proposal “to make an irreversible and
irretrievable commitment of the availability of resources to a
project at a particular site.” California v. Block, 690 F.2d
40753, 761 (9th Cir. 1982) (internal quotation marks omitted); see
also 42 U.S.C. § 4332(2)(C)(v).
D.
When reviewing a NEPA decision, a court “must not reduce
itself to a ‘rubber-stamp’ of agency action.” N.C. Wildlife
Fed’n, 677 F.3d at 601 (quoting Fed. Mar. Comm’n v. Seatrain
Lines, Inc., 411 U.S. 726, 746 (1973)). Rather, we must ensure
that the agency has “‘examine[d] the relevant data and
articulate[d] a satisfactory explanation for its action.’” FCC
v. Fox Television Stations, Inc., 556 U.S. 502, 513 (2009)
(quoting Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm
Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). An agency’s
decision is arbitrary and capricious if the agency
relied on factors which Congress has not intended it
to consider, entirely failed to consider an important
aspect of the problem, offered an explanation for its
decision that runs counter to the evidence before the
agency, or is so implausible that it could not be
ascribed to a difference in view or the product of
agency expertise.
State Farm, 463 U.S. at 43.
We may not substitute our “judgment for that of the
agency.” Fox Television Stations, 556 U.S. at 513 (internal
quotation marks omitted). “[O]ur task is to ensure that [the
agency] took a hard look at the environmental consequences of
the proposed action.” Webster, 685 F.3d at 421 (internal
quotation marks omitted). Consequently, “we ‘may not flyspeck
41
[the] agency’s environmental analysis, looking for any
deficiency, no matter how minor.’” Id. (quoting Nat’l Audubon
Soc’y, 422 F.3d at 186 (alteration in original) (internal
quotation marks omitted)). Nor may we seize on any “trivial
inadequacy in an [Environmental Impact Statement] as a reason to
reject an agency decision[.]” Nat’l Audubon Soc’y, 422 F.3d at
186. Our “totality of the circumstances approach means that
[we] must view deficiencies in one portion of an [Environmental
Impact Statement] in light of how they affect the entire
analysis.” Id.E.
Plaintiffs argue that “Defendants violated the basic
principles of NEPA and engaged in illegal ‘segmentation’ by
issuing a [Record of Decision] that disclosed only one initial
segment of the Selected Alternative—a segment that will commit
them to significant future construction of a road and bridges
through a National Wildlife Refuge—while failing to disclose any
specific plans for that construction.” Appellants’ Br. at 20.
Defendants counter that “[n]othing in NEPA requires an
agency to authorize all phases of a proposed action evaluated in
an [Environmental Impact Statement] at the time it issues a
[Record of Decision].” Appellees’ Br. at 29. They maintain
that “the agencies have fully analyzed the entire project in an
[Environmental Impact Statement] and [Environmental
42
Assessment,]” by conducting “a full end-to-end study of
alternatives and associated impacts for the entire length of the
project, from the northern limit on Bodie Island to the southern
limit in the [V]illage of Rodanthe” and have thus not engaged in
segmentation. Appellees’ Br. at 29–30.
Illegal segmentation is distinct from approving only a
portion of a project that has been fully and adequately studied.
We agree with the Eleventh Circuit that NEPA does not require an
agency to “authorize all stages of a project in one [Record of
Decision].” Defenders of Wildlife v. U.S. Dep’t of the Navy,
733 F.3d 1106, 1116 (11th Cir. 2013). Nothing in NEPA prohibits
Defendants from authorizing only one part of the Project so long
as doing so does not commit them to a course of action that has
not been fully analyzed. To be sure, Defendants’ Record of
Decision does commit resources to the Project, and we perceive
no reason why Defendants cannot analyze the entire Project “in a
single impact statement.” 40 C.F.R. § 1502.4(a). But they are
not required to approve the entire Project in a single Record of
Decision so long as their NEPA documents adequately analyze and
disclose the impacts of the entire Project—including those
portions that have yet to be approved.
The parties agree that the studied alternatives are
feasible, i.e., that, as a matter of sound engineering judgment,
they can be built. And the record shows that Defendants have
43
adequately analyzed the impacts associated with the five
Parallel Bridge Corridor alternatives that could be implemented
to complete the Project: (1) Parallel Bridge Corridor With
Nourishment; (2) Parallel Bridge Corridor With Road North/Bridge
South; (3) Parallel Bridge Corridor With All Bridge; (4)
Parallel Bridge Corridor With Phased Approach/Rodanthe Bridge
(Preferred); and (5) Parallel Bridge Corridor With Phased
Approach/Rodanthe Nourishment. Indeed, at oral arguments, even
Plaintiffs acknowledged that if Defendants had issued a Record
of Decision that committed to any one—or any combination—of
those alternatives, that action likely would have complied with
NEPA’s procedural requirements.
Accordingly, at least with respect to the previously
studied alternatives, Defendants have neither attempted to
“circumvent[] NEPA” nor refused to study “the overall impacts of
the single overall project.” Webster, 685 F.3d at 426 (internal
quotation marks omitted). Rather, they have conducted a full,
site-specific analysis. Thus, their decision to implement the
Project one phase at a time does not violate NEPA.
Plaintiffs press that the Record of Decision seems to
authorize the construction of future phases that have not yet
been analyzed and disclosed to the public. And certain aspects
of the record lend support to that position.
44
For example, the Record of Decision seems to anticipate the
possibility of “a separate NEPA process” that will take place
when Defendants finally decide what to do with the rest of NC
12. J.A. 2500. And the Revised Section 4(f) evaluation seems
to indicate that Defendants are contemplating the construction
of something that has not previously been studied or disclosed:
Under the Parallel Bridge Corridor with NC 12
Transportation Management Plan Alternative, later
phases of actions to manage NC 12 through 2060 would
be decided based on actual conditions existing on
Hatteras Island at the point in time that additional
action becomes necessary. These later phases could
consist of, but would not be limited to, one or more
components of any of the alternatives already studied
as part of the environmental review process . . . .
J.A. 1905 (emphasis added).
Although it is possible to read such statements as
Defendants’ attempts to commit to or authorize something outside
the scope of what their NEPA documents have analyzed and
disclosed, that is not how we view these isolated statements
made in the context of hundreds of pages of analysis. And
notwithstanding that the NC 12 Transportation Management Plan is
really nothing more than a plan to make a plan for the remainder
of NC 12, the public is clearly on notice that Defendants intend
to pursue the five studied alternatives that pass through
Hatteras Island and the Refuge—not the two alternatives that
avoid Hatteras Island altogether via construction of a bridge in
Pamlico Sound. And because Defendants have fully analyzed and
45
disclosed the environmental impacts associated with these five
legitimate alternatives, Defendants have complied with NEPA with
regard to all five.
Moreover, NEPA obligates agencies to continue to review the
environmental consequences of their actions, and we think it is
best to read Defendants’ statements that allude to a separate
NEPA process simply as an acknowledgement of this requirement.
If, for example, Defendants wait too long to implement the
future phases of the Project, conditions on Hatteras Island
could change so much that the current Environmental Impact
Statement no longer covers the alternatives that they studied.
If conditions change to such an extent, Defendants must issue a
supplemental Environmental Impact Statement prior to taking any
other action. 40 C.F.R. § 1502.9(c)(1)(i), (ii). Defendants’
statements in their Environmental Assessment and Record of
Decision that seem to anticipate changing conditions cannot and
do not shield them from NEPA’s procedural requirements.
In sum, Defendants have not violated NEPA by engaging in
unlawful segmentation with respect to the five studied parallel
bridge alternatives. We thus affirm the district court’s grant
of summary judgment on the NEPA issue. Our opinion may not,
however, be construed as an authorization to proceed outside the
scope of the previously studied alternatives, and Defendants’
doing so would almost surely violate NEPA.
46
IV.
A.
Unlike NEPA, which “prohibits uninformed—rather than
unwise—agency action[,]” Robertson, 490 U.S. at 351, Section
4(f) of the Department of Transportation Act of 1966, 49 U.S.C.
§ 303, imposes substantive restraints on an agency’s action. 13
Under Section 4(f), the Secretary of Transportation
(“Secretary”) is permitted to approve a transportation project
that requires the
use of publicly owned land of a public park,
recreation area, or wildlife and waterfowl refuge . .
. or land of an historic site . . . only if . . .
there is no prudent and feasible alternative to using
that land; and . . . the program or project includes
all possible planning to minimize harm to the
[publicly owned land] resulting from the use[.]
49 U.S.C. § 303(c).
In other words, Section 4(f) property “may not be put to
non-park uses unless there is no feasible and prudent
alternative to the non-park use of the land.” Coal. for
Responsible Reg’l Dev. v. Brinegar, 518 F.2d 522, 525 (4th Cir.
13
The term “Section 4(f)” refers to this provision’s
original location in the Department of Transportation Act of
1966. Pub. L. No. 89-670, 80 Stat. 931 (1966). The text of
Section 4(f) has now been codified at both 23 U.S.C. § 138 and
49 U.S.C. § 303. The name “Section 4(f)” is no longer
indicative of the provision’s location, but the term is so
widely recognized that it continues to be used to avoid
“needless confusion.” 23 C.F.R. 771.107(e) n.2 (2013).
47
1975). 14 Further, the Secretary may approve a transportation
project that uses Section 4(f) property only if “the program or
project includes all possible planning to minimize harm to
the . . . wildlife and waterfowl refuge[.]” 49 U.S.C. §
303(c)(2).
The Secretary must perform a Section 4(f) evaluation and
comply with that provision’s other substantive requirements
before approving any use of Section 4(f) property. The same is
not required, however, if the “joint planning exception”
applies. Under the joint planning exception,
[w]hen a property is formally reserved for a future
transportation facility before or at the same time a
[Section 4(f) property] is established and concurrent
or joint planning or development of the transportation
facility and the Section 4(f) resource occurs,
then any resulting impacts of the transportation
facility will not be considered a use as defined in §
774.17.
23 C.F.R. § 774.11(i). In other words, for a transportation
facility that uses Section 4(f) property to escape the
substantive requirements of Section 4(f), two conditions must be
met. First, the property for the transportation facility must
14
The term “Section 4(f) property” refers to “publicly
owned land of a public park, recreation area, or wildlife and
waterfowl refuge of national, State, or local significance, or
land of an historic site of national, State, or local
significance[.]” 23 C.F.R. § 774.17. A “‘use’ of Section 4(f)
property occurs[,]” among other things, “[w]hen land is
permanently incorporated into a transportation facility[.]” 23
C.F.R. § 774.17.
48
be “formally reserved . . . before or at the same time” as the
establishment of the Section 4(f) property. Id. Second, the
transportation facility and the Section 4(f) property must be
concurrently or jointly planned or developed. Id.If Section 4(f) property will be used and no exception
applies, the Secretary must show that the project includes “all
possible planning to minimize harm” to the Section 4(f) property
and that “no prudent and feasible” alternatives are available.
49 U.S.C. § 303(c)(1)-(2).
The “all possible planning” prong of the analysis cannot be
met until a project’s design is complete. See D.C. Fed’n of
Civic Ass’ns v. Volpe, 459 F.2d 1231, 1239 (D.C. Cir. 1971). If
all possible planning to minimize harm to the Section 4(f)
property has not been completed before the Secretary’s approval
of the project, the Section 4(f) evaluation is invalid because,
“[a]bsent a finalized plan . . ., it is hard to see how the
Department could make a meaningful evaluation of ‘harm.’” Id.The Secretary must also find that there is “no prudent and
feasible alternative” to using the Section 4(f) property. 49
U.S.C. § 303(c)(1). An alternative is infeasible only when it
“cannot be built as a matter of sound engineering judgment.” 23
C.F.R. § 774.17(2); see also Overton Park, 401 U.S. at 411.
To find an alternative to using Section 4(f) property
imprudent, the Secretary must determine that the impacts or
49
adverse effects associated with that alternative are
extraordinary or unique. See id. at 413. The Secretary’s
regulations explain that an alternative is imprudent if:
(i) It compromises the project to a degree that it is
unreasonable to proceed with the project in light of
its stated purpose and need;
(ii) It results in unacceptable safety or operational
problems;
(iii) After reasonable mitigation, it still causes:
(A) Severe social, economic, or environmental
impacts;
(B) Severe disruption to established communities;
(C) Severe disproportionate impacts to minority
or low income populations; or
(D) Severe impacts to environmental resources
protected under other Federal statutes;
(iv) It results in additional construction,
maintenance, or operational costs of an extraordinary
magnitude;
(v) It causes other unique problems or unusual
factors; or
(vi) It involves multiple factors . . . that while
individually minor, cumulatively cause unique problems
or impacts of extraordinary magnitude.
23 C.F.R. § 774.17(3)(i)-(vi).
Imprudence may not provide cover for using Section 4(f)
land “unless ‘there [are] truly unusual factors present in a
particular case or the cost or community disruption resulting
from alternative routes reach[] extraordinary magnitudes.’”
Hickory Neighborhood Def. League, 893 F.2d at 61 (quoting
Overton Park, 401 U.S. at 413). See also, Monroe Cnty.
Conservation Council, 472 F.2d at 700 (“[A] road must not take
parkland, unless a prudent person, concerned with the quality of
the human environment, is convinced that there is no way to
50
avoid doing so.” (footnote omitted)). And a state may not use
“self-imposed restrictions” on financing mechanisms to render an
alternative imprudent. Coal. for Responsible Reg’l Dev., 518
F.2d at 526.
The Secretary’s Section 4(f) evaluation of the entire
project must be completed before the Record of Decision is
issued and before work on the project begins. Corridor H
Alternatives, Inc. v. Slater, 166 F.3d 368, 373 (D.C. Cir.
1999); see also 23 C.F.R. § 774.9(a) (“The potential use of land
from a Section 4(f) property shall be evaluated as early as
practicable . . . when alternatives to the proposed action are
under study.”).
Further, the Secretary may not reduce the number of prudent
and feasible alternatives that are available by fragmenting the
evaluation and approval of a single project into separate parts.
Instead, the Secretary must evaluate each project as a whole,
not “phase-by-phase.” N. Idaho Cmty. Action Network v. U.S.
Dep’t of Transp., 545 F.3d 1147, 1159 (9th Cir. 2008). The
Secretary’s determination that there are no feasible and prudent
alternatives must “include sufficient supporting documentation
to demonstrate why there is no feasible and prudent avoidance
alternative and shall summarize the results of all possible
planning[.]” 23 C.F.R. § 774.7(a).
51
If there are no feasible and prudent alternatives to using
Section 4(f) property, the Secretary may select only the
alternative that “[c]auses the least overall harm in light of
[Section 4(f)’s] preservation purpose.” 23 C.F.R. §
774.3(c)(1). This determination involves balancing several
factors, including: (1) the “ability to mitigate adverse
impacts”; (2) the relative severity of the harm after
mitigation; (3) the relative significance of the Section 4(f)
property; (4) the “views of the official(s) with jurisdiction
over each Section 4(f) property;” (5) the “degree to which each
alternative meets the purpose and need for the project;” (6)
“[a]fter reasonable mitigation, the magnitude of any adverse
impacts to resources not protected by Section 4(f);” and (7)
“[s]ubstantial differences in costs among the alternatives.” 23
C.F.R. § 774.3(c)(1)(i)–(vii).
B.
In reviewing an agency’s Section 4(f) determination, we
must conduct a “thorough, probing, indepth review” to ensure
that the Secretary’s determination complies with Section 4(f)’s
requirements. Monroe Cnty. Conservation Council, 472 F.2d at
700 (internal quotation marks omitted). First, we consider
whether the Secretary acted within the scope of his or her
authority when conducting the Section 4(f) evaluation. Overton
Park, 401 U.S. at 415. This requires examining whether the
52
Secretary could have reasonably believed that no feasible and
prudent alternatives to using Section 4(f) property existed.
Id. at 416. Second, the reviewing court must consider whether
the Secretary’s choice to use Section 4(f) property was
“‘arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law.’” Id. (quoting Administrative
Procedure Act, 5 U.S.C. § 706(2)(A) (1964)). This determination
requires us to review whether the Secretary’s “decision was
based on a consideration of the relevant factors” and whether
the factors actually support the Secretary’s determination.
Hickory Neighborhood Def. League, 893 F.2d at 61-62 (internal
quotation marks omitted). Finally, we must also determine
whether the Secretary followed all procedural requirements.
Overton Park, 401 U.S. at 417.
C.
1.
Plaintiffs contend that the district court erroneously
applied the joint planning exception to the Project. They argue
that when the Refuge was created, NC 12 had not yet been
formally reserved and that it was not jointly or concurrently
planned.
Because the joint planning exception applies only when a
transportation facility is “formally reserved . . . before or at
the same time,” as a Section 4(f) property, 23 C.F.R. §
53774.11(i), the only relevant evidence is that which sheds light
on the status of NC 12 on or before April 12, 1938, the date of
the executive order establishing the Refuge. Yet some of the
evidence on which the district court relied in deeming the joint
planning exception applicable—the 1942 Coast Guard map, the
North Carolina highway maps from 1944 and 1949, the 1951 Senate
debate, the public law from 1951 authorizing DOI to grant an
easement to North Carolina, the 1954 quitclaim deed, and the
1954 easement—prove nothing about the status of NC 12 when the
Refuge was established. In other words, this evidence is wholly
insufficient to support the application of the joint planning
exception here.
All we are left with, then, is a 1939 application for a
ferry permit that describes ferry service beginning in 1926,
photos of ferries carrying cars, and some 1938 reports from the
Refuge’s manager that refer to a “public road.” None of this
evidence demonstrates that NC 12 had been formally reserved as
of April 12, 1938. At best, it shows that cars were crossing
Oregon Inlet and perhaps driving on a “public road” sometime in
1938.
Moreover, formal reservation “before or at the same time,”
alone, even if it had been shown—and it was not—cannot support
the application of the joint planning exception. Instead, the
evidence must also show that “concurrent or joint planning or
54
development” of NC 12 and the Refuge occurred. Id. But the
evidence in the record here shows no such thing. Indeed, the
only evidence that pertains to the planning of NC 12 is the 1951
public law authorizing DOI to grant an easement to North
Carolina, North Carolina’s 1954 quitclaim deed, and DOI’s 1954
easement. Because these substantially postdate the
establishment of the Refuge, they cannot possibly show
“concurrent or joint planning or development” of NC 12 and the
Refuge.
Having sifted through the remainder of the record, we find
nothing on which we could affirm the district court’s
application of the joint planning exception. In other words,
Defendants have fallen far short of demonstrating that there is
“no genuine dispute as to any material fact” that would entitle
them to summary judgment on this issue. Fed. R. Civ. P. 56(a).
That being said, it is possible that a careful reading of
the condemnation proceedings used by the United States to
acquire the Refuge contain something indicating that NC 12 was
formally reserved and concurrently or jointly planned at the
same time that the Refuge was established. But that will
require an odyssey into the facts of the condemnation
proceedings and pertinent North Carolina property law that we
refuse to undertake in the first instance.
55
Accordingly, we reverse the district court’s application of
the joint planning exception and remand the issue for further
proceedings consistent with the detailed instructions in this
opinion’s conclusion.
2.
Despite the fact that the district court determined that
the joint planning exception applied and that the Project was
therefore not subject to Section 4(f)’s substantive
requirements, the district court nevertheless analyzed whether
Section 4(f)’s substantive requirements had been met. Because a
Section 4(f) analysis is irrelevant if the joint planning
exception applies, we will not engage in such an inquiry here.
Of course, should the district court determine that the joint
planning exception is inapplicable, it must examine the record
to determine whether FHWA complied with the substance of Section
4(f).
V.
For the foregoing reasons, we affirm the district court’s
grant of summary judgment regarding Plaintiffs’ NEPA challenge,
and we reverse the district court’s grant of summary judgment
regarding Plaintiffs’ Section 4(f) challenge.
We remand this case for further proceedings in accordance
with this opinion. Specifically, the district court must
56
examine the record to determine whether Section 4(f)’s joint
planning exception applies. The only evidence relevant to this
inquiry is that which pertains to the status of NC 12 when the
Refuge was established. The district court may not apply the
joint planning exception unless it determines that NC 12 was
both formally reserved before or at the same time that the
Refuge was established and jointly planned or developed with the
Refuge.
Should the district court conclude that the joint planning
exception does not apply, it must then determine whether FHWA
has complied with the substantive requirements of Section 4(f).
The district court must determine whether FHWA conducted “all
possible planning to minimize harm” to the Refuge, and it must
determine whether FHWA acted in an arbitrary and capricious
manner when it determined that no prudent and feasible
alternative to the use of Refuge property for the Project
existed. 15 Finally, if the district court determines that FHWA’s
determination regarding the lack of prudent and feasible
alternatives was not arbitrary and capricious, it must determine
15
We note that the district court may need to consider
whether Defendants’ compliance with Section 4(f) can be fully
determined before Defendants have committed to and disclosed the
particulars of the future phases.
57
whether FHWA has selected the alternative that causes the least
overall harm to the Refuge.
To the extent the district court previously analyzed the
substantive requirements of Section 4(f), we expressly vacate
that analysis and instruct the district court to follow the
legal framework set forth in this opinion, make the
determinations enumerated above, and engage in the requisite
“thorough, probing, indepth review” to ensure that the
Secretary’s determination complies with Section 4(f)’s
requirements. Monroe Cnty. Conservation Council, 472 F.2d at
700.
AFFIRMED IN PART,
REVERSED IN PART,
AND REMANDED
58