N.C. case tests integrity of environmental review for major highway projects

Attorneys for conservation groups in North Carolina took their case against a controversial highway project to the U.S. 4th Circuit Court of Appeals today, arguing that the N.C. Department of Transportation blatantly violated one of the country’s fundamental environmental laws in evaluating a proposed bypass near Charlotte. The case could set a precedent for how road-building agencies in the court’s jurisdiction (NC, SC, VA, WV and MD) weigh the environmental consequences of constructing major highways.

The case before the 4th Circuit comes on appeal from a closely-watched lawsuit filed under the National Environmental Policy Act last year by the Southern Environmental Law Center on behalf of Clean Air Carolina, the Yadkin Riverkeeper and North Carolina Wildlife Federation. The groups say the NCDOT and Federal Highway Administration virtually turned NEPA on its head by assuming in the environmental impact statement for the Monroe Bypass that the highway already existed when they analyzed a “no build” option.

This flawed approach led to the improbable result that building the 20-mile, four-lane bypass with nine interchanges on the fringe of metro Charlotte would have practically no impact on development patterns, the Yadkin River watershed or air quality from increased commuting. In addition to skewing the outcome for approving the project, the illegal analysis precluded from consideration a much less expensive option for upgrading the existing highway corridor. The NCDOT’s own study showed that major improvements to traffic flow along existing U.S. 74 would cost about $15 million dollars, versus more than $700 million for the Monroe Bypass.

The conservation groups pointed out the flaw while the environmental study was underway, but the agencies, in their official statement of finding published in the Federal Register in 2010, denied it.  During the ensuing litigation, the lower court acknowledged that the misrepresentation had occurred, but ruled that it was “immaterial”-despite the fact that the implausible analysis was the basis for several federal and state agencies to approve the project.

“This case goes to the very heart of the important environmental review process for major highway projects across the fast-growing South,” said David Farren, SELC senior attorney.  “The facts here are quite simple: the transportation agencies compared building the road to building the road, and then denied it.

“If this flimsy, so-called ‘analysis’ can stand, the concern is we could end up building tens of billions of dollars in massive highway projects across the region without any fiscal or environmental checks and balances.

“Especially in these times of tight public budgets, we should not be ignoring smaller-scale alternatives, with a lighter environmental footprint, that can bring the same traffic benefits without costing a fortune, promoting sprawl or lining the pockets of developers and speculators.”

A map showing the project location on the fringe of metro Charlotte is available here.