Judge Expedites Monroe Bypass Challenge – Will Consider Temporary Injunction Later if Necessary

U.S. District Judge James C. Dever, III, today put off as premature a request by environmental groups for a temporary injunction for the proposed Monroe Bypass near Charlotte, but is expediting the case and said he would consider a temporary injunction later if necessary.  He also said he “will not hesitate” to issue  a permanent injunction if warranted based on a review of the administrative record next year.  A status conference has been scheduled for February 4, 2011.

Three environmental groups, represented by SELC, sued the N.C. Department of Transportation in November and sought  a preliminary judgment to immediately halt work on the proposed 20-mile bypass, saying the agency botched a required environmental analysis in its attempt to rush the project through without considering the full impacts of the project or less damaging and less expensive alternatives.

In ruling today on the groups’ motion, Judge Dever said he would allow the groups to re-file for a preliminary injunction if local or state agencies obtain permits for the project and prepare to issue financing bonds for the project, most recently estimated to cost over $800 million. 

The judge also said he would be willing to consider a permanent injunction once the full administrative record on the project has been filed with the court, which is part of the process of the environmental lawsuit.  That filing is expected in late January. With NCDOT saying it plans to start construction as early as fall 2011, Judge Dever also ordered an expedited schedule for the lawsuit to go to trial before construction begins. 

The judge made no prediction of his ruling on the merits, but signaled that he’s eager to take a close look at the Environmental Impact Statement as soon as the necessary papers and legal briefs are filed.  “If, on a full record, the court determines that a permanent injunction is warranted, the court will not hesitate to issue it,” he wrote.

STATEMENT FROM CHANDRA TAYLOR, SELC SENIOR ATTORNEY:

“We’re very pleased the judge is committed to hearing our case quickly and that he will allow us to renew our motion for a temporary halt if permits are issued to prevent NCDOT from making irrevocable financing commitments.

“Traffic on U.S. 74 is bad, but building this costly and environmentally unsound toll road is not the answer. NCDOT failed in numerous ways to conduct a full and honest assessment of alternatives and environmental impacts, as required by law. We look forward to presenting our case.”

BACKGROUND:
On November 2,  Clean Air Carolina, N.C. Wildlife Federation and Yadkin Riverkeeper, represented by SELC, filed suit against NCDOT and the Federal Highway Administration for violating federal environmental law in assessing the impacts of the proposed 20-mile Monroe Bypass southeast of Charlotte. The groups sought a preliminary injunction until the merits of the case are heard.

Among other claims, the groups say the agencies illegally biased the outcome of the environmental study by assuming the bypass already existed when analyzing a “no build” option. Such an assumption allowed NCDOT to come up with virtually identical environmental impacts for two drastically different scenarios: building the multi-lane, 20-mile highway with nine interchanges through the Yadkin River watershed, and not building it. It also foreclosed less damaging and costly options because the analysis assumed all the additional traffic that the project would bring.

As required under federal law, more cost-effective and environmentally sound ways to relieve traffic on U.S. 74 should have been seriously considered, rather than just slight variations of the  proposed bypass, pegged at more than $800 million, only half of which would be covered by tolls. Numerous other tollways around the South have failed to meet their projected revenues, including a project near Greenville, South Carolina, and the Pocahontas Parkway near Richmond, Virginia.