Save Our Sound OBX, Inc. v. NC Dept of Transportation , 914 F.3d 213 ( 2019 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-1649
SAVE OUR SOUND OBX, INC.; MARK HAINES; JER MEHTA; GLENN
STEVENS; DAVID HADLEY; THOMAS ASCHMONEIT; RICHARD
AYELLA,
Plaintiffs – Appellants,
v.
NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; FEDERAL
HIGHWAY ADMINISTRATION; JOHN F. SULLIVAN, III, in his official
capacity as Division Administrator for the Federal Highway Administration;
JAMES H. TROGDON, III, in his official capacity as Secretary of the North
Carolina Department of Transportation,
Defendants – Appellees,
and
DEFENDERS OF WILDLIFE; NATIONAL WILDLIFE REFUGE
ASSOCIATION,
Intervenors/Defendants – Appellees.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Elizabeth City. Louise W. Flanagan, District Judge. (2:17-cv-00004-FL)
Argued: December 11, 2018 Decided: January 23, 2019
Before NIEMEYER, DUNCAN, and QUATTLEBAUM, Circuit Judges.
Affirmed by published opinion. Judge Duncan wrote the opinion, in which Judge
Niemeyer and Judge Quattlebaum joined.
ARGUED: David Ari Schnitzer, GIBSON, DUNN & CRUTCHER LLP, Washington,
D.C., for Appellants. Thekla Hansen-Young, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C.; Colin Justice, NORTH CAROLINA DEPARTMENT OF
JUSTICE, Raleigh, North Carolina, for Appellees. ON BRIEF: Michael K. Murphy,
Kyle N. Guest, GIBSON, DUNN & CRUTCHER LLP, Washington, D.C., for
Appellants. Jeffrey H. Wood, Acting Assistant Attorney General, Eric Grant, Deputy
Assistant Attorney General, Andrew C. Mergen, Robert J. Lundman, Carter F. Thurman,
Appellate Section, Environment and Natural Resources Division, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C.; Josh Stein, Attorney General,
OFFICE OF THE ATTORNEY GENERAL OF NORTH CAROLINA, Raleigh, North
Carolina; Scott T. Slusser, Special Deputy Attorney General, Mollie Cozart, Assistant
Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North
Carolina, for Appellees North Carolina Department of Transportation, Federal Highway
Administration, John F. Sullivan, III, and James H. Trogdon, III. Kimberley Hunter,
Nicholas S. Torrey, SOUTHERN ENVIRONMENTAL LAW CENTER, Chapel Hill,
North Carolina, for Appellees Defenders of Wildlife and National Wildlife Refuge
Association.
2
DUNCAN, Circuit Judge:
Appellants Save Our Sound OBX, Inc. and its members, residents and vacationers
from North Carolina’s Outer Banks, (collectively “SOS”) challenge the decision of the
North Carolina Department of Transportation (the “NCDOT”), the Federal Highway
Administration (the “FHWA”), and their administrators (collectively “the Agencies”) to
replace a segment of North Carolina Highway 12 (“NC-12”) with a bridge across the
Pamlico Sound (the “Jug-Handle Bridge”). The district court granted the Agencies’
motion for summary judgment, finding that they did not violate the National
Environmental Policy Act (the “NEPA”), 42 U.S.C. § 4321 et seq., or the Department of
Transportation Act (the “DTA”), 49 U.S.C. § 301 et seq., when they approved the bridge.
SOS challenges that ruling on appeal. For the reasons that follow, we affirm.
I.
This case involves a segment of NC-12, which is the main roadway passing
through the Outer Banks of North Carolina. State and federal agencies have been
working for several years to update and improve NC-12 because of its susceptibility to
weather damage and erosion.
Like many highway construction projects, the NC-12 project required cooperation
among state and federal agencies. For instance, in North Carolina, NCDOT has authority
over highway construction, while FWHA supplies federal funds for highway projects.
The agencies tasked with improving NC-12, including NCDOT and FHWA, formed a
Merger Team to coordinate decisionmaking and regulatory compliance for the NC-12
3
project. 1 The Merger Team was responsible for ensuring that the NC-12 project
complied with the requirements of NEPA and the DTA, among other regulations.
SOS challenges certain agency decisions in the NC-12 project under NEPA and
the DTA. Accordingly, we first provide a brief overview of the requirements of those
statutes before turning to the specific facts and procedural history of this appeal.
A.
The first statute at issue in this appeal is NEPA. Pursuant to NEPA, 42 U.S.C.
§ 4321 et seq., and its implementing regulations, government agencies considering
certain projects must evaluate whether the project would have a significant impact on the
environment by preparing an Environmental Assessment (an “EA”). Id. § 4332(C); 40
C.F.R. § 1508.9; see id. § 1508.18 (defining the types of federal actions to which NEPA
applies). If the project would have a significant impact, the agency must prepare an
Environmental Impact Statement (an “EIS”). 42 U.S.C. § 4332(C). The agency is
responsible for ensuring that the EIS complies with various regulatory requirements. See
40 C.F.R. § 1502.1 et seq. For instance, the EIS must “provide full and fair discussion”
of any significant environmental impacts of a proposed action. 40 C.F.R. § 1502.1.
1
The Merger Team was comprised of representatives from NCDOT, FHWA, the
U.S. Fish and Wildlife Service, the U.S. Army Corps of Engineers, the U.S.
Environmental Protection Agency, the National Marine Fisheries Service, the National
Park Service, the North Carolina Department of Cultural Resources, the North Carolina
Wildlife Resources Commission, and three divisions of the North Carolina Department of
Environmental and Natural Resources (the “NCDENR”) (now named the North Carolina
Department of Environmental Quality)--the Division of Water Resources, the Division of
Coastal Management, and the Division of Marine Fisheries.
4
Additionally, the agency must “[r]igorously explore and objectively evaluate all
reasonable alternatives” that could “avoid or minimize adverse impacts.” Id.§§ 1502.1, 1502.14. The agency is permitted, however, to identify a preference among
alternatives based on non-environmental considerations, such as economic factors or the
agency’s statutory mission. Id. § 1505.2(b). If the agency has a preferred alternative,
NEPA requires the agency to identify that preference in the EIS. Id. § 1502.14. NEPA
also requires the agency to prepare a supplemental EIS (an “SEIS”) if significant new
information or environmental changes come to light after the agency prepares an EIS. Id.
§ 1502.9(c). After the agency makes its final decision about which alternative to pursue,
it publishes a record of decision (an “ROD”) explaining its choice. Id. § 1505.2.
We now turn to the second statute at issue: the DTA. The DTA contains
substantive requirements for government transportation projects. 49 U.S.C. § 301 et seq.
Relevant here, the so-called “§ 4(f)” requirements 2 concern transportation projects that
require the use of publicly owned land of a wildlife refuge or a significant historic site.
Id. § 303(c). Historic sites include structures “included in, or eligible for inclusion in,”
the National Register of Historic Places. 23 C.F.R. § 774.17. The Secretary of
Transportation may only approve such projects if there is no “feasible and prudent”
alternative to using that land and the “project includes all possible planning to minimize
harm . . . resulting from the use.” Id. § 303(c). If there is no feasible and prudent
2
The DTA explains that “[t]he requirements of [49 U.S.C. § 303] are commonly
referred to as section 4(f) requirements” in reference to a previous version of the statute.
49 U.S.C. § 303(f)(1).
5
alternative, the Secretary may only approve the alternative that “[c]auses the least overall
harm in light of the [DTA’s] preservation purpose.” 23 C.F.R. § 774.3(c). Relevant
considerations in selecting the least harmful alternative include whether harm to the land
can be mitigated, whether harm to the land affects the attributes qualifying that land for
protection, and whether the alternative meets the needs of the project. Id.B.
Having established the relevant framework, we consider the facts of this case.
SOS’s claims in this litigation concern the Agencies’ environmental analysis under
NEPA and the DTA with respect to a segment of NC-12 that passes from the southern
edge of Bodie Island to the village of Rodanthe. For this segment, the Merger Team was
responsible for preparing EAs and EISs pursuant to NEPA and for determining which
proposed plan for the project was the least environmentally-damaging practicable
alternative (the “LEDPA”) pursuant to section 404 of the Clean Water Act, 33 U.S.C.
§ 1344, among other requirements. 3 See 40 C.F.R. § 230.10 (setting out the LEDPA
requirement).
In 2008, the Merger Team issued an EIS and § 4(f) evaluation (the “2008 EIS”)
for improving NC-12. For the segment at issue here, the 2008 EIS included discussion of
several alternatives, including a proposed bridge in the Pamlico Sound near Rodanthe
3
Section 404 of the Clean Water Act regulates activities involving “the discharge
of dredged or fill material” into navigable waters. Id.
6
(the “Bridge South alternative”) and proposals involving beach nourishment. An EA in
2010 (the “2010 EA”) further developed these alternatives.
The Merger Team released an updated EA in 2013 (the “2013 EA”) to account for
environmental changes after the 2010 EA, including the effects of Hurricane Irene in
2011. The 2013 EA identified four alternatives for the segment at issue: (1) the so-called
Jug-Handle Bridge, a bridge extending out into the Pamlico Sound (also referred to in the
environmental analyses as the “Bridge on New Location”); 4 (2) an easement bridge on
the existing NC-12 location; (3) beach nourishment; and (4) an easement bridge
combined with beach nourishment. The Merger Team did not study the beach
nourishment alternatives in depth in the 2013 EA because, at a 2011 meeting, it had
already determined not to pursue them after experts reported on a “high erosion rate and a
lack of sand supply.” J.A. 843. In the 2013 EA, the Merger Team identified the
easement bridge as its preferred alternative under NEPA. However, certain members of
the Merger Team objected to finding that the easement bridge was the LEDPA under the
Clean Water Act, citing concerns about its location within the surf zone, additional
permits associated with erosion setback requirements, and its impact on a nearby wildlife
refuge. See J.A. 1745–47.
In the meantime, environmental groups Defenders of Wildlife and the National
Wildlife Refuge Association (intervenors here, collectively the “Environmental Groups”)
brought suit in federal court to challenge the Agencies’ NEPA and § 4(f) determinations
4
The Jug-Handle Bridge was a modified version of the Bridge South alternative
that was introduced in the 2008 EIS and further developed in the 2010 EA.
7
with respect to a different segment of NC-12 in the Outer Banks--the Bonner Bridge,
which connects Bodie Island and Hatteras Island to the north of Rodanthe. See Defs. of
Wildlife v. N.C. Dep’t of Transp., 762 F.3d 374 (4th Cir. 2014). The Environmental
Groups and the Agencies eventually reached an agreement in 2015 (the “Settlement”). 5
The Settlement required NCDOT to identify the Jug-Handle Bridge as its preferred
alternative for the segment of NC-12 at issue in this case. It also required NCDOT to
seek Merger Team concurrence that the Jug-Handle Bridge was the LEDPA. In doing so,
it stated that nothing in the Settlement “requires or should be interpreted to predetermine
the choice” of the Jug-Handle Bridge as the final selected alternative. J.A. 1090. In
exchange, the Environmental Groups dismissed the Bonner Bridge suit and agreed not to
challenge the Agencies in court if the Jug-Handle Bridge was determined to be the
LEDPA and was ultimately selected in the ROD for this project.
After a 2015 meeting, the Agencies identified the Jug-Handle Bridge as their
preferred alternative. Following public comment and detailed studies, the Merger Team
determined that the Jug-Handle Bridge was the LEDPA. In 2016, the Merger Team
released a revised EA (the “2016 EA”) to evaluate the environmental impacts of the Jug-
Handle Bridge and its associated construction activities. Later that year, the Merger
Team issued an ROD (the “2016 ROD”) formally approving the Jug-Handle Bridge.
In addition to authorizing construction of the Jug-Handle Bridge, the 2016 ROD
also addressed concerns relating to a shipwreck in the proposed bridge’s path known as
5
NCDENR was also a party to the Settlement and is represented on the Merger
Team, though it is not a defendant here.
8
the Pappy’s Lane Wreck. The shipwreck is eligible for listing on the National Register of
Historic Places. Because of the shipwreck’s historical significance, the 2016 ROD
ordered a data recovery project on the shipwreck, which later uncovered evidence that the
shipwreck was a World War II assault vessel. The Merger Team has not yet determined
how it will respond to this new information.
C.
We now turn to the procedural history of this litigation, which began when SOS
sued the Agencies on February 2, 2017. A month later, the Environmental Groups
intervened in the suit in support of the Agencies. In its complaint, SOS alleged, as
relevant here, that the Agencies’ approval of the Jug-Handle Bridge violated NEPA
because that decision was predetermined by the Settlement. To show evidence of
predetermination, SOS moved to supplement the administrative record before the district
court to include documents related to the negotiation of the Settlement on the grounds
that those documents were before the Agencies when they made their decision to select
the Jug-Handle Bridge. The district court denied this motion.
Later, SOS moved to amend its complaint to add claims related to construction
impacts in Rodanthe and to the Pappy’s Lane Wreck. Specifically, SOS contended that
the Agencies’ environmental analyses did not adequately consider the effects of
construction or the historic significance of the Pappy’s Lane Wreck. The district court
granted the motion as to construction impacts but denied it as to the shipwreck.
9
SOS, the Agencies, and the Environmental Groups each filed cross-motions for
summary judgment on the issue of whether the Agencies’ environmental analyses
violated NEPA or the DTA. The district court granted the Agencies’ and Environmental
Groups’ motions for summary judgment and denied SOS’s motion.
SOS appeals the district court’s grant of the Agencies’ motion for summary
judgment and its denial of SOS’s motion to amend its complaint. SOS contends that the
Agencies were not entitled to summary judgment because the Agencies’ environmental
analyses violated NEPA. It also contends that the district court erred in denying SOS’s
motion to amend its complaint with claims related to the Pappy’s Lane Wreck. We
discuss SOS’s NEPA claims and its motion to amend its complaint, in that order.
II.
SOS contends that the Agencies violated NEPA when they selected the Jug-
Handle Bridge for the NC-12 project. “We review a grant of summary judgment de
novo,” Defs. of Wildlife, 762 F.3d at 392, and, accordingly, review the Agencies’ actions
directly, pursuant to the Administrative Procedure Act (the “APA”). The APA directs us
to overturn agency actions if they are “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Our precedent also guides
the scope of our review of the sufficiency of an agency’s NEPA analysis. Nat’l Audubon
Soc’y v. Dep’t of Navy, 422 F.3d 174, 185, 199 (4th Cir. 2005). In conducting this
review, “we must make a searching and careful inquiry into the facts” and examine
whether the decision was based on consideration of the relevant factors. Id. at 185
10
(citation and internal quotation marks omitted). However, we do not “second-guess
agency decisions, so long as the agency has given a hard look at the environmental
impacts of its proposed action.” Id. at 199.
Under this standard of review, we affirm because the Agencies did not violate
NEPA in approving the Jug-Handle Bridge. We consider SOS’s arguments that the
Agencies’ environmental analyses violated NEPA because (1) the Agencies failed to
prepare an SEIS with regards to the Jug-Handle Bridge and beach nourishment
alternatives before issuing the 2016 ROD, (2) the Agencies failed to adequately consider
the impacts of construction, and (3) the Settlement impermissibly predetermined the
Agencies’ choice of the Jug-Handle Bridge.
A.
First, SOS contends that the Agencies’ NEPA analysis was deficient because the
Agencies should have prepared an SEIS before approving the Jug-Handle Bridge in the
2016 ROD. NEPA requires an agency to prepare an SEIS if “[t]he agency makes
substantial changes” to a proposed action that implicate environmental concerns or if
“[t]here are significant new circumstances or information” that would affect the
environmental impacts of the proposed action. 40 C.F.R. § 1502.9(c). To merit an SEIS,
the changes “must present a seriously different picture of the environmental impact of the
proposed project.” Hughes River Watershed Conservancy v. Glickman, 81 F.3d 437, 443
(4th Cir. 1996) (citation and alterations omitted).
11
We review an agency’s decision not to prepare an SEIS in two steps, consistent
with our standard of review under NEPA. Id. At step one, we “determine whether the
agency took a hard look at the proffered new information.” Id. If the agency concludes
after a preliminary inquiry that the “environmental effect of the change is clearly
insignificant,” its decision not to prepare an SEIS satisfies the hard look requirement.
Hodges v. Abraham, 300 F.3d 432, 446 (4th Cir. 2002). For instance, in Hodges, we held
that an agency took a hard look at the environmental consequences of its change in plans
when it explicitly evaluated those consequences and determined that they were not
significantly different from those discussed in a prior EIS. Id. at 447. We also noted that
the plaintiff in that case “failed to identify any particular risk arising from” the change
that had not already been addressed in the agency’s environmental analyses. Id. Next, at
step two of the SEIS inquiry, we review whether the agency’s decision not to prepare an
SEIS after taking a hard look was arbitrary or capricious. Hughes River, 81 F.3d at 443.
SOS contends that an SEIS was necessary (1) to evaluate the environmental
effects of the Jug-Handle Bridge alternative because it was different from options that
had previously been evaluated and (2) to reconsider alternatives that involved beach
nourishment pursuant to new information about sand availability and beach erosion rates.
We address each contention in turn and affirm the district court’s determination that no
SEIS was required. Neither of these changes are sufficiently different from the
circumstances initially evaluated in the EIS to merit an SEIS. The Agencies’ decision not
to prepare one after taking a hard look at the changes was therefore not arbitrary or
capricious.
12
i.
Contrary to SOS’s contention, the Agencies were not required to prepare an SEIS
with respect to the Jug-Handle Bridge alternative. SOS argues that the final alignment of
the Jug-Handle Bridge alternative (that is, its path across the Pamlico Sound and its
connection points with the shore) was significantly different from previously evaluated
alternatives. Specifically, SOS contends that the bridge’s alignment changed
significantly because the alternative evaluated in the 2008 EIS was “amorphously
defined” and because the alternative evaluated in the 2010 EA (to which the 2013 EA,
2016 EA, and 2016 ROD refer) was “not comparable” to the Jug-Handle Bridge.
Appellant’s Br. at 35, 36. It argues that these differences render prior environmental
analyses of those alternatives insufficient to evaluate the environmental effects of the
Jug-Handle Bridge as approved in the 2016 ROD. We disagree and conclude that the
Agencies complied with NEPA when they decided that an SEIS was not warranted by
these changes.
At step one, the Agencies took a hard look at changes in the bridge’s alignment in
the 2016 EA. The 2016 EA describes the similarities and differences between the Jug-
Handle Bridge as proposed in 2016 and the versions evaluated in the 2013 EA, the 2010
EA, and the 2008 EIS. For instance, it explains that the Agencies decided to shift the
alignment of the bridge to avoid areas of “dense submerged aquatic vegetation” that fell
in the path of previous versions of the bridge. J.A. 1198. The 2016 EA also explains that
the Jug-Handle Bridge’s alignment reduces effects on the community as compared with
13
previous versions because it requires a narrower right-of-way. Because the Agencies
went into detail in their comparison between the Jug-Handle Bridge and previous
versions of the bridge, their coverage satisfies the hard look requirement. See Hodges,
300 F.3d at 446–47.
And, at step two, because the Agencies took the requisite hard look and neither
their environmental analyses nor SOS identify any particular differences that would merit
an SEIS, their decision not to prepare an SEIS was not arbitrary or capricious. See
Hughes River, 81 F.3d at 443. An SEIS is only required when changes to a project
present a “seriously different picture of the environmental impact.” Id. (alterations and
citation omitted). Based on the discussion presented in the 2016 EA, which compared the
different versions of the bridge, it was not arbitrary or capricious for the Agencies to
determine that the Jug-Handle Bridge’s final alignment did not present a “seriously
different picture,” id., than the 2008 EIS, the 2010 EA, or the 2013 EA. The Agencies
explained how the Jug-Handle Bridge was different from previous versions of the bridge,
and their explanations do not implicate any significant environmental concerns.
Accordingly, their decision not to prepare an SEIS was not arbitrary or capricious.
ii.
Similarly, the Agencies were not required to prepare an SEIS to reevaluate the
feasibility of alternatives that involved beach nourishment. SOS contends that the
Agencies failed to adequately reconsider beach nourishment after new erosion projections
were released and after a 2014 emergency beach nourishment project in the area
14
successfully repaired damage from Hurricane Sandy. According to SOS, this new
information showed that coastal conditions had changed such that erosion would no
longer threaten beach nourishment and that adequate sand was in fact available to
complete the project.
However, the Agencies took the requisite hard look at these new circumstances in
the 2016 EA. See Hughes River, 81 F.3d at 443. The 2016 EA notes that while erosion
projections in the Rodanthe area did decrease, erosion rates in Rodanthe remained
“amongst the highest rates along the North Carolina coast.” J.A. 1218. It also discusses
the 2014 emergency beach nourishment project in detail and considers updated
information about coastal conditions in the area. Specifically, it notes that the 2014
emergency beach nourishment project was “essentially one round of nourishment in one
part of [NC-12].” J.A. 1227. Finally, it concludes that the Agencies thoroughly
considered the environmental effects of beach nourishment when they originally
evaluated those alternatives in the 2008 EIS. This detailed discussion satisfies the hard
look requirement. See Hodges, 300 F.3d at 446–47.
And after taking that hard look, the Agencies’ decision not to prepare an SEIS was
not arbitrary or capricious. See Hughes River, 81 F.3d at 443. SOS cites improved
erosion rates and an increased supply of sand as new factors that the Agencies should
have considered when deciding whether to prepare an SEIS. However, erosion and sand
supply were not the Agencies’ only reasons for initially rejecting beach nourishment in
the 2008 EIS. The Agencies also cited independent concerns such as inadequate
protection against future breaches, risks of overwash, and incompatibility with the
15
mission of a neighboring wildlife refuge. It was not arbitrary or capricious for the
Agencies to decline to reconsider beach nourishment alternatives in an SEIS when the
new information proffered by SOS did not implicate all of the Agencies’ independently
adequate reasons for initially rejecting beach nourishment.
Accordingly, the Agencies were not required to prepare an SEIS to consider the
alignment of the Jug-Handle Bridge or to consider beach nourishment alternatives. Their
environmental analyses therefore do not violate NEPA in this respect.
B.
SOS also contends that the Agencies’ environmental analyses violate NEPA
because they do not adequately consider the environmental effects of construction in the
Rodanthe area. Specifically, SOS argues that the effects of construction traffic and haul
roads are not adequately addressed in the 2016 EA and that any discussion of these issues
in the 2008 EIS is irrelevant because that document focuses on a larger area.
NEPA requires agencies to consider all “significant environmental impacts,” 40
C.F.R. § 1502.1, which can include impacts caused by the use of construction roads and
increased traffic. See, e.g., Arlington Coal. on Transp. v. Volpe, 458 F.2d 1323, 1332
(4th Cir. 1972) (explaining that NEPA applies to highway construction projects).
Accordingly, if construction roads and traffic are expected to affect the environment near
an agency project, the agency must provide “full and fair discussion” of those effects and
incorporate them into its comparison of alternatives. 40 C.F.R. § 1502.1.
16
Here, the Agencies adequately considered the effects of construction traffic as a
result of the Jug-Handle Bridge in the 2016 ROD. Specifically, the Agencies explained
that a temporary construction easement would be necessary to support traffic during
construction but noted that “[t]he land affected will be restored after construction is
completed.” J.A. 1559. While the 2016 ROD does not compare the construction traffic
effects of the Jug-Handle Bridge with those of other proposed alternatives, the Agencies
did perform that comparison in the 2013 EA and the 2016 EA and still found the bridge
to be the LEDPA. The Agencies also specifically considered the environmental effects of
haul roads in the 2008 EIS. 6
We therefore cannot say that the Agencies did not provide “full and fair
discussion” of the effects of construction traffic or haul roads when they selected the Jug-
Handle Bridge among alternatives. See 40 C.F.R. § 1502.1. Accordingly, the Agencies
did not violate NEPA here, and we affirm the district court.
6
To be sure, that discussion did not explicitly consider haul roads in the Rodanthe
area. However, it is unclear from the record whether the Agencies actually plan to use
haul roads for the Jug-Handle Bridge project. See, e.g., J.A. 214 (containing a
declaration from an NCDOT engineer stating that NCDOT and its contractor decided not
to pursue a previously-discussed haul road in connection with a barge because shallow
water depths would make it impracticable). Regardless, NEPA does not compel the
Agencies to specifically consider the environmental impacts of haul roads so long as they
adequately examine the environmental consequences of the Jug-Handle Bridge project,
including construction impacts, as a whole. See 40 C.F.R. § 1502.2(b) (“Impacts shall be
discussed [in the EIS] in proportion to their significance.”).
17
C.
Finally, SOS contends that the Agencies violated NEPA because their choice of
the Jug-Handle Bridge did not follow from their NEPA analysis but, rather, was a
predetermined result of the Settlement. NEPA “prohibits agencies from preparing an EIS
simply to ‘justify [] decisions already made.’” Nat’l Audubon Soc’y, 422 F.3d at 199(quoting 40 C.F.R. § 1502.2(g)) (alteration in original). That is because, under NEPA,
agencies that have yet to issue a final decision may not “commit resources prejudicing
selection of alternatives,” 40 C.F.R. § 1502.2(f), nor may they take any action that would
“[l]imit the choice of reasonable alternatives,” 40 C.F.R. § 1506.1(a). An EIS based upon
a predetermined choice that a certain alternative will be selected would violate these
principles because it would not allow the agency to fully consider all alternatives.
We conclude that the Agencies’ choice of the Jug-Handle Bridge was not
impermissibly predetermined. We consider, in turn, the Agencies’ objective
environmental analyses, the language of the Settlement, and the role of documents
generated during negotiation of the Settlement.
i.
First, SOS contends that flaws in the Agencies’ environmental analyses reveal that
their choice of the Jug-Handle Bridge was predetermined by the Settlement. In alleging
that the environmental analyses were inadequate, it primarily relies upon arguments that
we have already discussed--namely, that the Agencies failed to fully consider the new
alignment of the bridge, the feasibility of beach nourishment alternatives, and the effects
18
of construction traffic and haul roads. SOS contends that these flaws exist because the
Agencies prematurely decided to choose the Jug-Handle Bridge after the Settlement.
Under our precedent, “the evidence we look to in determining whether
[predetermination] has taken place consists of the environmental analysis itself.” 7 Nat’l
Audubon Soc’y, 422 F.3d at 199. In National Audubon Society, in reviewing allegations
that an agency had settled on a certain outcome before preparing its EIS, we declined to
look to the agency’s internal documents and emails. Id. Instead, we limited the scope of
our inquiry to the agency’s objective environmental analysis, reasoning that “[w]here an
agency has merely engaged in post hoc rationalization, there will be evidence of this in its
failure to comprehensively investigate the environmental impact of its actions and
acknowledge their consequences.” Id. Accordingly, our analysis focuses on whether an
agency’s objective environmental analyses demonstrate evidence of predetermination.
Here, when we examine Agencies’ environmental analyses, we cannot say that
they violated NEPA by selecting the Jug-Handle Bridge following the Settlement. To be
sure, the Agencies changed their preferred alternative from the easement bridge to the
Jug-Handle Bridge following the Settlement. But that change alone does not mean that
the Agencies’ choice was predetermined, particularly where members of the Merger
Team had expressed concerns about the easement bridge as far back as 2013. And when
we look to the Agencies’ environmental analyses here, those analyses satisfied NEPA’s
7
We note that some circuits look beyond the objective environmental analysis for
evidence of predetermination. See, e.g., Forest Guardians v. U.S. Fish & Wildlife Serv.,
611 F.3d 692, 716–17 (10th Cir. 2010) (declining to adopt the Fourth Circuit’s rule).
19
requirements. See discussion supra Sections II.A., II.B. We do not see, and SOS cannot
identify, any evidence that the Agencies “fail[ed] to comprehensively investigate” and
evaluate the environmental impacts of the Jug-Handle Bridge or the other alternatives.
Nat’l Audubon Soc’y, 422 F.3d at 199. The EAs and EIS prepared by the Agencies do
not, on their faces, show evidence of predetermination.
SOS cites to cases from the Ninth and Tenth Circuits to contend that courts have
found predetermination based on contractual commitments made by an agency before the
NEPA process was complete. See Davis v. Mineta, 302 F.3d 1104, 1112 (10th Cir. 2002)
(holding that a contract requiring a consultant to recommend that a project had no
significant environmental impact before actually preparing an EA violated NEPA);
Metcalf v. Daley, 214 F.3d 1135, 1145 (9th Cir. 2000) (same, regarding a contract
requiring an agency to make a proposal for a specific alternative before preparing an EA).
However, these cases are distinguishable because they involved contracts that agencies
entered into before conducting any environmental analysis at all; in contrast, the
Settlement here, which the Agencies and the Environmental Groups entered into in 2015,
was preceded by a number of environmental analyses, including the 2008 EIS, the 2010
EA, and the 2013 EA. And when we examine each of these environmental analyses, we
find no evidence of predetermination warranting reversal.
ii.
Although circuit precedent limits our predetermination inquiry to the
“environmental analysis itself,” id., SOS nonetheless urges us to consider the Settlement
20
as evidence that the Agencies’ choice was predetermined. But even if we look to the
Settlement, that document does not support SOS’s claim. The Settlement only required
NCDOT to identify the Jug-Handle Bridge as its preferred alternative and to seek Merger
Team concurrence that the Jug-Handle Bridge was the LEDPA. These conditions do not
require the Agencies to select the Jug-Handle Bridge as the final approved alternative for
this project. For instance, it remained possible that the Agencies’ environmental analyses
would demonstrate that the Jug-Handle Bridge was not the LEDPA. Additionally, the
Agencies’ preferences alone could not bind the entire Merger Team, which was
ultimately responsible for approving the final alternative, because the parties to the
Settlement comprise only three of the ten state and federal agencies represented on the
Merger Team. 8 This does not constitute predetermination.
iii.
SOS also urges us to consider external documents generated during the negotiation
of the Settlement as evidence of predetermination and to reverse the district court’s denial
of SOS’s motion to include these documents in the record. We decline to do so because
the district court did not abuse its discretion in denying this motion. See Fort Sumter
Tours, Inc. v. Babbitt, 66 F.3d 1324, 1335–36 (4th Cir. 1995) (explaining that we review
8
To be sure, the parties to the Settlement represented three of the four Lead
Agencies tasked with decisionmaking if the Merger Team could not reach consensus.
But, as discussed, the Settlement only required those agencies to seek concurrence that
the Jug-Handle Bridge was the LEDPA; it did not require them to go beyond the
objective environmental analysis to choose the Jug-Handle Bridge if it was not, in fact,
the LEDPA.
21
a district court’s decision whether to expand the administrative record for abuse of
discretion).
Federal courts base their review of agency decisions on “the ‘whole record’
compiled by the agency.” Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402,
419 (1971) (quoting 5 U.S.C. § 706), abrogated on other grounds by Califano v. Sanders,
430 U.S. 99 (1977). We may supplement the record as presented by the agency if the
“bare record” does not reveal the agency’s reasoning or if it appears that the agency acted
in bad faith. Id. at 420. Otherwise, “inquiry into the mental processes of administrative
decisionmakers is usually to be avoided.” Id.
Here, the record as presented by the Agencies reveals their reasoning, as we have
discussed, and the district court found no evidence that the Agencies acted in bad faith.
The district court also determined that there was no evidence that the Agencies actually
reviewed the documents put forth by SOS as part of their decision to approve the Jug-
Handle Bridge. We hold that the district court did not abuse its discretion by denying
SOS’s motion to supplement the record, and accordingly, our review is limited to the
record as compiled by the Agencies.
SOS contends that, even if we cannot consider these documents as part of the
administrative record, we should nevertheless consider them as extra-record evidence. It
is true that “in the NEPA context, courts generally have been willing to look outside the
record when assessing the adequacy of an EIS or a determination that no EIS is
necessary.” Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177, 201 (4th Cir.
2009). However, we have explained that extra-record evidence in that context is
22
primarily useful “to inform the court about environmental factors that the agency may not
have considered.” Id. (emphasis added). Here, the proffered documents would do
nothing to aid the court’s understanding of the environmental concerns at issue, as they
concern the legal terms of the Settlement between the Agencies and the Environmental
Groups. Therefore, the district court properly excluded them, and we decline to consider
them now.
There is superficial appeal in suggesting that the Agencies’ choice was
predetermined because the Settlement yielded a preferred alternative. However, that
conclusion is not legally or factually supported by the record. Legally, our analysis is
cabined to the environmental analysis itself, with which we find no issues meriting
reversal. And factually, we see no evidence that the Merger Team was forced to approve
the Jug-Handle Bridge.
In sum, the Agencies did not violate NEPA when they approved the Jug-Handle
Bridge because they were not required to prepare an SEIS, they adequately evaluated the
effects of construction traffic, and they did not rely on a predetermined choice among
alternatives. We therefore affirm the district court’s grant of summary judgment in favor
of the Agencies.
III.
Finally, SOS contends that the district court erred when it denied SOS’s motion to
amend its complaint with claims related to the Pappy’s Lane Wreck. Specifically, SOS
alleges that the Agencies violated § 4(f) by approving a transportation project that
23
threatens to harm the land of a site of historic significance because the Jug-Handle Bridge
will pass above the wreck--the site of a World War II vessel.
We review a district court’s denial of a motion to amend the complaint for abuse
of discretion. See Laber v. Harvey, 438 F.3d 404, 428 (4th Cir. 2006) (en banc).
However, if the district court denied such a motion on the grounds that the amendment
would have been futile, we review its legal conclusions de novo. United States ex. rel.
Ahumada v. NISH, 756 F.3d 268, 274 (4th Cir. 2014).
A party “may amend its pleading once as a matter of course” before the opposing
party files a responsive pleading. Fed. R. Civ. P. 15(a)(1). After that time, a party may
only amend its pleading with the consent of the opposing party or with leave of the court,
and “[t]he court should freely give leave when justice so requires.” Fed. R. Civ. P.
15(a)(2). Courts may deny leave to amend a pleading if the amendment would have been
futile. Laber, 438 F.3d at 426. A proposed amendment is futile when it is “clearly
insufficient or frivolous on its face.” Johnson v. Oroweat Foods Co., 785 F.2d 503, 510
(4th Cir. 1986). A proposed amendment is also futile if the claim it presents would not
survive a motion to dismiss. Perkins v. United States, 55 F.3d 910, 917 (4th Cir. 1995).
Here, the district court found that SOS’s proposed amendment would be futile for
two alternative reasons. First, it determined that, to the extent that SOS sought to assert
that the 2016 EA was no longer valid in light of new information about the shipwreck,
that claim would be unripe where the Agencies had not yet made a decision concerning
the significance of the new information. Second, it determined that, to the extent that
SOS sought to assert that the 2016 EA was inadequate when issued, that claim would fail
24
because it would ask the Agencies to consider information that was not discovered until
after the 2016 EA was issued. For the reasons that follow, we affirm the district court’s
denial of SOS’s motion to amend its complaint.
First, to the extent that SOS’s proposed amendments contend that the Agencies
failed to consider new information about the shipwreck, those amendments would be
futile because they would raise a claim that is not yet ripe for review. 9 Courts may only
review “final agency action,” 5 U.S.C. § 704, and challenges to agency decisions that are
yet to be made are not ripe for review. See Pashby v. Delia, 709 F.3d 307, 317 (4th Cir.
2013) (holding that a claim is only ripe when it involves a formalized administrative
decision). Here, the Agencies have not yet made a final decision about the significance
of new information revealing that the shipwreck was a World War II assault vessel.
Therefore, any claim that the Agencies did not properly account for this information
would be unripe, and any amendment seeking to add such a claim would be futile.
Second, SOS contends on appeal that it is challenging the adequacy of the 2016
ROD’s treatment of the Pappy’s Lane Wreck rather than the Agencies’ failure to consider
new information about the shipwreck’s significance. Specifically, SOS contends that,
because the Agencies knew that the shipwreck was eligible for listing on the National
9
SOS appears to have abandoned this argument on appeal. See Appellants’ Br. at
53 (contending that the district court “fundamentally misread [SOS’s] motion” when it
denied it on ripeness grounds because “[t]he [new] allegations were about the
inadequacies of the [2016] ROD and the process leading up to that document”)
(emphasis added). Nevertheless, we discuss it because it implicates concerns related to
the argument that SOS does raise on appeal regarding the adequacy of the 2016 ROD
when issued.
25
Register of Historic Places, they were not authorized to build a bridge in its path unless
they determined that there was “no prudent and feasible alternative to using that land”
and that the “project include[d] all possible planning to minimize harm . . . resulting from
the use.” See 49 U.S.C. § 303(c).
However, as the district court explained, SOS cannot contend that it was
challenging the adequacy of the 2016 ROD’s treatment of the shipwreck when its claims
“rest[] upon recent discovery that the Pappy[’s] Lane Wreck contains a World War II
vessel.” Save Our Sound OBX, Inc. v. N.C. Dep’t of Transp., No. 2:17-CV-4-FL, 2017
WL 7048561, at *5 (E.D.N.C. Dec. 5, 2017). Instead, the Agencies satisfied regulatory
requirements when, based on what they knew about the Pappy’s Lane Wreck, they
ordered data recovery and decided that the shipwreck did not merit preservation in place.
Arguments that the Agencies should have gone further are grounded in new information
and, therefore, not reviewable until the Agencies issue a final decision, as discussed
above. We therefore affirm the district court’s denial of SOS’s motion to amend its
complaint.
IV.
We affirm the district court because the Agencies did not violate NEPA or the
DTA when they issued the 2016 ROD selecting the Jug-Handle Bridge and because the
district court did not abuse its discretion when it denied SOS’s motions to supplement the
administrative record and to amend the complaint.
AFFIRMED
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