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.”

A North Carolina conservation organization and a local citizen group filed a lawsuit in the federal district court for the Eastern District of North Carolina challenging approvals for a toll bridge in the Currituck Outer Banks. The plaintiffs alleged that transportation agencies had approved the project in March 2019 without any public review of the project since a final environmental impact statement (EIS) was completed in January 2012 after the project had failed to move forward for decades due to concerns about the need for the bridge, its potential environmental impacts, and the availability of alternatives. The plaintiffs alleged that a number of issues warranted further scrutiny, including that in the intervening years “the science behind sea level rise, storm surge, and climate change models has significantly advanced—with implications for the durability of the Toll Bridge, its utility as a hurricane evacuation route, and its financial viability as a toll revenue generating facility.” The plaintiffs said the reevaluation of the 2012 EIS had not considered recent advances in climate change science; up-to-date sea level projections; recent observed and projected increases in storm surge magnitude; intensifying hurricanes; or marsh migration. The plaintiffs asserted a number of claims under NEPA, including that a supplemental EIS should have been prepared to address, among other issues, the new data about sea level rise and storm surge impacts.