No Mid-Currituck Bridge-Concerned Citizens & Visitors Opposed to the Mid-Currituck Bridge v. North Carolina Department of Transportation

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.