North Carolina Wildlife Federation v. North Carolina Department of Transportation

The federal district court for the Eastern District of North Carolina found that the North Carolina Department of Transportation and the Federal Highway Administration (FHWA) complied with NEPA in connection with FHWA’s approval of a $600 million toll bridge across the Currituck Sound near North Carolina’s Outer Banks. Among the arguments rejected by the court was that the defendants “unfairly skewed” the comparison of the financial feasibility of the preferred alternative with an alternative that improved existing roads, including because the financial feasibility analysis unreasonably ignored the impact that sea level rise would have on future toll revenue. The court stated, moreover, that “[t]he equal impact of this environmental phenomena” on each of the alternatives “does not serve as a differentiator among the alternatives.” The court also rejected the plaintiffs’ contention that new information on rising sea level’s increased impact on the project’s viability over the next half-century required preparation of a supplemental EIS. The court found that this was “not a new circumstance that presents a seriously different picture of the environmental impact of the proposed project from what was previously envisioned.”

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The Fourth Circuit Court of Appeals denied a petition for rehearing and rehearing en banc of its February 2023 decision rejecting challenges to the National Environmental Policy Act (NEPA) review of a proposed toll bridge connecting North Carolina’s mainland to the Outer Banks. The plaintiffs’ arguments included that the defendants should have prepared a supplemental environmental impact statement to consider new sea-level rise data allegedly showing that the bridge would be inundated in less than 30 years.

The Fourth Circuit Court of Appeals affirmed a district court’s rejection of claims that the North Carolina Department of Transportation and Federal Highway Administration violated the National Environmental Policy Act when they approved a proposed toll bridge connecting North Carolina’s mainland with the Outer Banks. The agencies published a final environmental impact statement (EIS) in 2012 and then completed a reevaluation in 2019 after funding for the bridge was pulled and then recommitted. The plaintiffs’ arguments included that the agencies should have prepared a supplemental EIS to consider new information, including 2017 sea-level rise data that the plaintiffs claimed showed that the bridge would be inundated in less than 30 years. The Fourth Circuit characterized the sea-level rise issue as a “factual dispute the resolution of which implicates substantial agency expertise.” The court found that it could not conclude that the agencies were uninformed about sea-level rise risks and that the “new sea-level data only ‘confirmed concerns that the [] EIS already articulated and considered.’” The court therefore held that the agencies’ decision not to issue a supplemental EIS to consider the issue was not arbitrary or capricious.

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