Catawba Riverkeeper Foundation v. North Carolina Department of Transportation

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-2285
CATAWBA RIVERKEEPER FOUNDATION; CLEAN AIR CAROLINA,
Plaintiffs − Appellees,
v.
NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; NICHOLAS J.
TENNYSON, in his official capacity as Secretary of NCDOT,
Defendants – Appellants,
and
FEDERAL HIGHWAY ADMINISTRATION; JOHN F. SULLIVAN, in his
official capacity as Division Administrator of FHWA,
Defendants.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
Chief District Judge. (5:15−cv−00029−D)
Argued: September 21, 2016 Decided: December 13, 2016
Before DUNCAN, KEENAN, and DIAZ, Circuit Judges.
Vacated and remanded with instructions by published opinion.
Judge Diaz wrote the opinion, in which Judge Duncan and Judge
Keenan joined.
ARGUED: Scott Thomas Slusser, NORTH CAROLINA DEPARTMENT OF
JUSTICE, Raleigh, North Carolina, for Appellants. Kimberley
Hunter, SOUTHERN ENVIRONMENTAL LAW CENTER, Chapel Hill, North
Carolina, for Appellees. ON BRIEF: Roy Cooper, Attorney
General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North
Carolina, for Appellants. Ramona H. McGee, SOUTHERN
ENVIRONMENTAL LAW CENTER, Chapel Hill, North Carolina, for
Appellees.
2
DIAZ, Circuit Judge:
This appeal involves the proposed construction of the
Gaston East-West Connector, 1 a 22-mile toll road in North
Carolina spanning from southeast Gaston County to west
Mecklenburg County with new crossings over the South Fork and
Catawba Rivers. The Catawba Riverkeeper Foundation and Clean
Air Carolina (collectively, the “Conservation Groups”) brought
suit against the North Carolina Department of Transportation
(“NCDOT”), the Federal Highway Administration, and officials
representing those agencies, challenging the environmental
analysis conducted for the Connector. The district court
granted the Conservation Groups’ motion for summary judgment.
Before the district court ruled, the North Carolina General
Assembly stripped the Connector of its funding and repealed the
statute that expressly authorized its construction. And after
the district court entered judgment, state and local authorities
removed the Connector from the various planning models for such
projects. At oral argument, NCDOT represented that the
Connector is no longer viable. In light of these developments,
we conclude that this appeal is moot and accordingly vacate the
district court’s judgment.
1 The Connector is known locally as the Garden Parkway.
3
I.
A.
Local planners in Gaston County, North Carolina first
considered the need to construct a bypass to improve east-west
mobility between Gaston County and Mecklenburg County in the
late 1980s. NCDOT began studying the project in 2001, meeting
with other agencies and local authorities to assess the benefits
of the project relative to alternatives such as mass transit or
improvements to existing roadways. In coordination with these
officials, NCDOT determined that building a “new location
freeway” more effectively addressed the goals of (1)
“improv[ing] east-west transportation mobility . . . between
Gastonia and the Charlotte metropolitan area” and (2)
“establish[ing] direct access between the rapidly growing area
of southeast Gaston County and west Mecklenburg County.” J.A.
723.
As required by the National Environmental Policy Act
(“NEPA”), 42 U.S.C. § 4321, et seq., NCDOT and the Federal
Highway Administration (collectively, the “Agencies”) began
assessing the environmental impact of the project. 2 In the
2
This assessment, which includes time for public notice and
comment, ultimately leads to the preparation of a Record of
Decision. The Record of Decision “identifies the Selected
Alternative, presents the basis for the decision, identifies all
the alternatives considered, specifies the ‘environmentally
(Continued)
4
meantime, the North Carolina General Assembly designated the
Connector a candidate project subject to the control of the
North Carolina Turnpike Authority. N.C. Gen. Stat. § 136–
89.183(a)(2)(b) (2006) (repealed by 2013 N.C. Sess. Laws § 5.1).
The General Assembly also gave the Turnpike Authority
conditional power to propose additional projects not expressly
authorized in the statute, provided they were “approved by the
General Assembly prior to construction” and “shown in the
current State Transportation Improvement Plan.” Id. § 136-
89.183(a)(2) (2006).
In April 2009, the Agencies published for public review and
comment a draft Environmental Impact Statement for the
Connector. The draft statement considered twelve alternative
“new location” controlled-access toll roads, ranging from 21.4
to 23.7 miles in length, assessed each alternative’s capacity to
meet the project’s needs, and compared each with a “no-build”
baseline alternative. The Agencies also forecasted traffic
demand and distribution in the geographic area through 2030,
creating both a “build” forecast depicting how a network of
preferable alternative,’ and provides information on the adopted
means to avoid, minimize, and compensate for environmental
impacts.” J.A. 1480.
5
transportation facilities would operate with projected future
traffic volumes and a “no build” baseline forecast.
To develop the traffic forecasts, the Agencies relied on
data derived from socioeconomic forecasts prepared by area
planning organizations that assumed construction of the
Connector. The Agencies superimposed each alternative onto this
set of socioeconomic projections and eliminated alternatives
from further study on this basis. The draft Environmental
Impact Statement also contained a qualitative Indirect and
Cumulative Effects (“ICE”) report, describing the Connector’s
estimated effects on growth and land use, wildlife habitat, and
water resources in the geographic area.
In response to requests from environmental advocates and
other agencies, the Agencies also published a quantitative ICE
report that analyzed future land-use change. They first created
a “build” forecast and then employed a “gravity model” to
reallocate the growth effects to create the “no build” forecast
baseline. 3 The Agencies determined that construction of the
Connector would result in 3,700 additional households and 300
3
A gravity model produces quantified results that can serve
as the basis for assessing land use change. The model
“essentially holds that all other factors influencing
development held constant, growth will shift towards areas with
the greatest relative accessibility improvement as a result of
the project.” J.A. 2350.
6
fewer jobs in the study area when compared to the “no build”
forecast.
The Agencies subsequently published a final Environmental
Impact Statement, addressing public and other agency comments on
the earlier draft statement and identifying the Connector as the
preferred alternative. They estimated the Connector’s cost to
be about $943 million, to be paid for by toll revenue bonds, an
annual $35 million appropriation of “gap” funding from the North
Carolina General Assembly, and other funding sources. In
February 2012, the Federal Highway Administration issued a
Record of Decision, identifying the Connector as the
“environmentally preferable alternative . . . because it
represents the best overall balanced minimization of all impacts
analyzed.” J.A. 3747.
B.
The Conservation Groups participated in the NEPA process
for the Connector, submitting comments and attending public
meetings to voice their concerns about the integrity of the
environmental analysis conducted by the Agencies. Following our
decision in North Carolina Wildlife Federation v. North Carolina
Department of Transportation, 677 F.3d 596 (4th Cir. 2012), 4 the
4That case concerned the proposed construction of the
Monroe Connector Bypass by the Agencies. 677 F.3d at 598. We
concluded that the Agencies violated NEPA by failing to disclose
(Continued)
7
Groups urged the Federal Highway Administration to rescind the
Connector’s Record of Decision and prepare a supplemental
Environmental Impact Statement. The Federal Highway
Administration declined to do so.
The Conservation Groups thereafter filed suit in the
Western District of North Carolina pursuant to the
Administrative Procedure Act, 5 U.S.C. § 701 et seq. (“APA”),
seeking: (1) a declaratory judgment that the Agencies violated
NEPA by conducting a deficient environmental analysis, (2)
vacatur of the Record of Decision, and (3) injunctive relief.
After the parties filed cross-motions for summary judgment, the
court transferred the case to the Eastern District of North
Carolina.
While the motions were pending, the North Carolina General
Assembly passed legislation requiring a data-driven
prioritization process to score and rank proposed transportation
projects based on a number of factors, including cost and
to the public that the Bypass’s underlying NEPA analysis relied
on socioeconomic data that assumed construction of the Bypass
and by disseminating erroneous information about that
assumption. Id. at 603. Although we did not decide whether
NEPA permitted the Agencies to use data assuming the
construction of the Bypass when creating a “no build” baseline,
we noted that “courts not infrequently find NEPA violations when
an agency miscalculates the ‘no build’ baseline or when the
baseline assumes the existence of a proposed project.” Id.
8
congestion. N.C. Gen. Stat. § 136-189.11. The Connector
received a low score under this new funding formula, ranking
below 1,200th place. The General Assembly subsequently repealed
that portion of the statute giving the Turnpike Authority
express power to build the Connector, 2013 N.C. Sess. Laws §
5.1, and rescinded the Connector’s earmarked $35 million annual
funding. 2013 N.C. Sess. Laws § 4.8 (striking funding for the
“Garden Parkway,” previously codified at N.C. Gen. Stat. § 136-
176(b2)).
Given these developments, the district court directed the
parties to brief whether the court retained subject matter
jurisdiction and whether the Turnpike Authority still had the
power to build the Connector. The parties urged the court to
resolve the pending motions for summary judgment, arguing that
the Turnpike Authority could still build the Connector as an
unspecified project because it remained on the list of approved
projects at both the state and local levels.
The court proceeded to the merits and granted the
Conservation Groups’ motion for summary judgment, holding that
the alternatives analysis underlying the Connector “violated
NEPA and the APA by using the same set of socioeconomic data
that assumed construction of the [Connector] to assess the
environmental impacts of the Build and No Build alternatives.”
J.A. 324. The district court also agreed with the Conservation
9
Groups that the Agencies failed to adequately assess and
disclose the Connector’s environmental impacts, reasoning that:
[D]efendants' fundamental assumption that the
[Connector] would have no effect on overall growth in
the Metrolina region, unsupported by any evidence
showing complete saturation of the region, and their
use of the gravity model to reallocate assumed growth
in the No Build condition constitute clear error and
violates NEPA and the APA.
J.A. 325. The court consequently vacated the Record of Decision
for the Connector. 5
Following the district court’s ruling, the last domino fell
for the Connector when it was removed from local and state
transportation plans, 6 which in turn meant that it was no longer
eligible for federal funding. In short, the Connector no longer
has the statutory authority or funding to proceed.
II.
NCDOT appeals the merits of the district court’s decision.
But preliminarily, it also contends that the case is now moot,
and therefore seeks vacatur of the district court’s order
granting summary judgment to the Conservation Groups. Because
we agree with NCDOT that developments subsequent to the district
5The Court declined to grant injunctive relief, finding it
unnecessary given its ruling.
6The project remains on a 2040 horizon year plan prepared
by local authorities, but it now takes the form of a 3.4-mile
long bridge crossing facility.
10
court’s ruling render the appeal moot, we do not address the
merits of the district court’s ruling.
Article III limits the jurisdiction of federal courts to
cases and controversies. U.S. Const. art. III, § 2, cl.1. “The
doctrine of mootness originates in Article III's ‘case’ or
‘controversy’ language.” Incumaa v. Ozmint, 507 F.3d 281, 286
(4th Cir. 2007) (quoting DaimlerChrysler Corp. v. Cuno, 547 U.S.
332, 352 (2006)) (internal quotation marks omitted). Thus,
“[t]o remain a justiciable controversy, a suit must remain alive
throughout the course of litigation, to the moment of final
appellate disposition.” Bahnmiller v. Derwinski, 923 F.2d 1085,
1088 (4th Cir. 1991) (internal quotation marks omitted).
“[E]ven if a plaintiff has standing when he or she files a
complaint, subsequent events can moot the claim.” Pashby v.
Delia, 709 F.3d 307, 316 (4th Cir. 2013). “A case becomes moot,
and thus deprives federal courts of subject matter jurisdiction,
when the issues presented are no longer ‘live’ or the parties
lack a legally cognizable interest in the outcome.” Id.
(internal quotation marks omitted). In other words, a case is
moot when “our resolution of an issue could not possibly have
any practical effect on the outcome of the matter.” Norfolk S.
Ry. Co. v. City of Alexandria, 608 F.3d 150, 161 (4th Cir.
2010).
11
NCDOT contends that this case became moot when local and
state planners removed the Connector project from their
respective transportation improvement plans, rendering the
Connector “no longer eligible for federal funding or
construction regardless of the merits of the NEPA issue on
appeal.” Appellants’ Br. at 32–33. At oral argument, counsel
for NCDOT represented that “the [Record of Decision] is really a
nullity,” and further that “[t]his Project is defunct. It’s no
longer moving forward.” See also Appellants’ Br. at 26 (“The
Project . . . is no longer viable”).
In turn, although the Conservation Groups concede that the
Connector now lacks funding, they say that the case still
presents a live controversy because the Record of Decision that
approved the project has not been rescinded and could thus “be
used to allow construction of the Connector at a later date.”
Appellees’ Br. at 24. As they see it, little more than shifting
political priorities and funding hinder NCDOT from using the
Record of Decision to build the Connector on the basis of an
allegedly flawed NEPA analysis. We do not agree.
As things now stand, the Connector faces multiple barriers
to construction. To be built, it must overcome the poor ranking
it received under the new funding formula enacted by the General
Assembly, local and state planners must reincorporate the
Connector into the various local and state transportation
12
improvement plans, and the state legislature must reallocate
about $900 million to the project. Moreover, even if these
events come to pass, clearing the Connector’s path to
construction, we are not persuaded by the Groups’ assertion that
NEPA’s implementing regulations allow the Agencies to conduct
only a “superficial” and cursory reevaluation of the Connector’s
Record of Decision. See 23 C.F.R. § 771.129(b) (requiring a
written evaluation of the final Environmental Impact Statement
if “major steps to advance the action . . . have not occurred
within three years after the approval of the final EIS”).
Instead, the regulatory regime under which the Agencies operate
renders the likelihood that NCDOT would proceed immediately to
construct the Connector pursuant to a now four-year-old Record
of Decision exceedingly remote.
Under these circumstances, we decline the Conservation
Groups’ request to issue “an opinion advising what the law would
be upon a hypothetical state of facts.” Preiser v. Newkirk, 422
U.S. 395, 401 (1975) (quoting North Carolina v. Rice, 404 U.S.
244, 246 (1971)). “[W]e may only decide cases that matter in
the real world,” and as such, can offer no relief to the
Conservation Groups because the Connector and its underlying
NEPA analysis, deficient or not, pose only hypothetical and
speculative harm. Norfolk, 608 F.3d at 161 (internal quotation
marks omitted); see also Preiser, 422 U.S. at 402 (a request for
13
declaratory relief survives a mootness challenge where the facts
“show that there is a substantial controversy, between parties
having adverse legal interests, of sufficient immediacy and
reality to warrant the issuance of a declaratory judgment”)
(internal quotation marks omitted); Connecticut v.
Massachusetts, 282 U.S. 660, 674 (1931) (An injunction “will not
be granted against something merely feared as liable to occur at
some indefinite time in the future.”).
In sum, given the remote possibility that the Connector
could proceed pursuant to the allegedly deficient Record of
Decision, and given NCDOT’s representations on appeal that the
Connector is no longer viable, we cannot agree with the
Conservation Groups that “[r]evival of the Connector is a real
possibility.” Appellants’ Br. at 28. This case is moot.
III.
We turn now to whether we should vacate the district
court’s judgment. The Conservation Groups contend that even if
the case is moot, vacatur is improper because the circumstances
that deprive us of subject matter jurisdiction are not the
product of “happenstance,” but rather the direct result of
NCDOT’s lobbying and decisions. In other words, the Groups
argue that NCDOT contributed to the Connector’s demise, mooting
this case. But as we explain, we do not think it proper to
14
impute the actions of state legislators and local planners to
NCDOT. Accordingly, we shall vacate the district court’s
judgment.
A.
Our “customary practice when a case is rendered moot on
appeal is to vacate the moot aspects of the lower court's
judgment.” Norfolk, 608 F.3d at 161. In such circumstances,
the equitable remedy of vacatur “‘clears the path for future
relitigation of the issues between the parties.’” Alvarez v.
Smith, 558 U.S. 87, 94 (2009) (quoting United States v.
Munsingwear, 340 U.S. 36, 40 (1950)).
The Supreme Court, however, has recognized exceptions to
this general practice in instances where mootness occurs through
the voluntary action of the losing party, rather than through
happenstance. See U.S. Bancorp Mortg. Co. v. Bonner Mall
P'ship, 513 U.S. 18, 29 (1994) (“[M]ootness by reason of
settlement does not justify vacatur of a judgment under
review.”); Karcher v. May, 484 U.S. 72, 82–83 (1987) (vacatur
inappropriate when losing party fails to pursue its appeal).
Consistent with that precedent, we too have said that “‘vacatur
normally is not appropriate . . . when the losing party's
deliberate actions have rendered moot an otherwise live
controversy.’” United States v. Springer, 715 F.3d 535, 541
(4th Cir. 2013) (quoting Remus Joint Venture v. McAnally, 116
15
F.3d 180, 185 (6th Cir. 1997)). “The rationale for this rule is
that appellants should not be allowed to escape the preclusive
effect of an adverse district court judgment simply by taking a
unilateral action during the pendency of their appeal to moot
the matter.” Id. at 542.
However, where “appellate review of the adverse ruling was
prevented by ‘the vagaries of circumstance,’” vacatur remains
available, “subject . . . to considerations of the public
interest.” Valero Terrestrial Corp. v. Paige, 211 F.3d 112,
117–18 (4th Cir. 2000) (quoting Bancorp, 513 U.S. at 25)).
Thus, when determining the propriety of vacatur in a moot
appeal, our decision is “informed almost entirely, if not
entirely, by the twin considerations of fault and public
interest.” Id. at 118.
B.
The Conservation Groups contend that vacatur is
inappropriate because NCDOT “contributed to the mootness of
which they now complain,” by lobbying the General Assembly for
the enactment of the new transportation funding statute and
formally approving the Connector’s removal from the state’s
transportation improvement program. Appellees’ Br. at 30. We
do not agree.
We dispel first the Groups’ assertion that NCDOT’s support
of transportation funding reform—characterized by the Groups as
16
an “intentional intercession in the legislative process”—is
sufficient to impute the actions of the General Assembly to
NCDOT. Id. To the contrary, our precedent counsels against
conflating the actions of a state executive entity with those of
a state legislature. Valero, 211 F.3d at 115.
In Valero, the appellant corporation brought suit against
various West Virginia executive agencies, challenging the
constitutionality of certain provisions of the West Virginia
Code pertaining to waste disposal and management regulation.
Id. The district court declared the provisions constitutionally
invalid and issued a permanent injunction prohibiting their
enforcement. Id. Shortly after judgment was entered, the West
Virginia Legislature revised the enjoined provisions, mooting
the case and prompting the executive agencies to seek vacatur of
the adverse decision. Id.
On appeal, we affirmed the district court’s vacatur of its
decision, distinguishing explicitly between the actions of the
state legislature in amending the statutory provisions at issue,
thereby mooting the case, from the actions of the defendant
state executive officials, holding that “defendant state
executive officials are in a position akin to a party who finds
its case mooted by ‘happenstance,’ rather than events within its
control.” Id. at 121 (internal quotation marks omitted). As a
17
result, we concluded that the principal consideration of “fault”
counseled in favor of vacatur. Id. 7
Similarly, here, NCDOT, a state executive agency, is a
separate entity from the North Carolina General Assembly. That
NCDOT lobbied the General Assembly in support of the
transportation funding reform does not alter this central
distinction, nor does it warrant the conclusion that NCDOT
“caused” the Connector’s demise. See Chem. Producers &
Distribs. Ass'n v. Helliker, 463 F.3d 871, 879 (9th Cir. 2006)
(“Lobbying Congress or a state legislature cannot be viewed as
‘causing’ subsequent legislation for purposes of the vacatur
inquiry. Attributing the actions of a legislature to third
parties rather than to the legislature itself is of dubious
legitimacy . . . .”).
In sum, to the extent that the enactment of transportation
funding reform helped to render this case moot, we view it as
7 Our sister circuits have also distinguished the actions of
an executive entity from those of the legislature for purposes
of the “voluntary action” presumption against vacatur. See,
e.g., Khodara Envtl., Inc. v. Beckman, 237 F.3d 186, 195 (3d
Cir. 2001) (vacating a lower court’s judgment as mooted by
legislative amendment and rejecting the appellee’s assertion
that the appellant Federal Aviation Association “misuse[d] . . .
the legislative process” to encourage Congress to amend the
challenged statute “to frustrate an unfavorable judgment”);
Nat'l Black Police Ass'n v. District of Columbia, 108 F.3d 346,
353 (D.C. Cir. 1997) (presumption against vacatur “is usually
inapplicable when legislative action moots a case and the
government seeks vacatur”).
18
the consequence of actions of the North Carolina General
Assembly, not NCDOT. See Rio Grande Silvery Minnow v. Bureau of
Reclamation, 601 F.3d 1096, 1131 (10th Cir. 2010) (“[T]he acts
of the legislature are not the acts of executive branch
agencies, states, or private parties.”).
We turn next to the Groups’ assertion that vacatur is
inappropriate because NCDOT intentionally mooted the case when
it approved the removal of the Connector from the state’s
transportation improvement program. Two points readily dispense
with this argument: (1) planners at the local level retain
discretion over which projects to include in their
transportation improvement plans, 23 C.F.R. § 450.326(a), and
(2) federal regulations require that an approved local
transportation plan be included in the state’s transportation
improvement program without change. See 23 C.F.R. § 450.218(b).
As such, although NCDOT approved the Connector’s removal from
its statewide plan, that result was a fait accompli following
the local planning agency’s decision to remove the Connector
from its transportation plan. Put simply, NCDOT did not act
voluntarily to moot this case.
C.
Finally, we consider the public interest. We have
recognized that “there is a substantial public interest in
judicial judgments.” Valero, 211 F.3d at 118. This is because
19
“[j]udicial precedents are presumptively correct and valuable to
the legal community as a whole.” Id. (quoting Bancorp, 513
U.S. at 26). In Bancorp, the Supreme Court’s concern for the
public interest led the Court to withhold the remedy of
appellate vacatur from the losing party who had mooted the case
through settlement, thereby “voluntarily forfeit[ing] his legal
remedy by the ordinary processes of appeal or certiorari.” 513
U.S. at 25. The Court reasoned that employing the remedy of
vacatur in that instance constituted “a refined form of
collateral attack on the judgment” that would “disturb the
orderly operation of the federal judicial system,” and therefore
did not serve the public interest. Id. at 27.
This concern, however, did not prevent the Court in Bancorp
from “stand[ing] by” the proposition that “mootness by
happenstance provides sufficient reason to vacate.” Id. at 23,
25 n.3 (citing Munsingwear, 340 U.S. at 40–41). We see no
reason to depart from that general principle here. Because
events beyond the parties’ control have mooted this appeal,
leaving the district court’s decision undisturbed would not
serve the public interest.
IV.
For the reasons given, we vacate the district court’s
judgment and remand the case with instructions that the district
20
court dismiss the action. See Mellen v. Bunting, 327 F.3d 355,
364 (4th Cir. 2003) (“If a claim becomes moot after the entry of
a district court's final judgment and prior to the completion of
appellate review, we generally vacate the judgment and remand
for dismissal.”).
VACATED AND REMANDED
WITH INSTRUCTIONS
21