Image courtesy FreeFoto.com
Remember the headline to my March 12, 2012 blog post about the Monroe Connector Bypass (or just the Monroe Bypass, for short)?
It suggested that the legal saga surrounding the proposed $725 million highway construction project was nearing “the end of the road.”
On second thought, not so much.
The road has taken an unexpectedly sharp turn, and there’s no telling how long the project may now be delayed. Why? Because according to the Fourth Circuit Court of Appeals (“4th Circuit”) in its May 3, 2012 decision in N.C. Wildlife Federation v. N.C. Department of Transportation, the North Carolina Department of Transportation (“NCDOT”) and the Federal Highway Administration (“FHA”) (collectively, the “Agencies”) failed to conduct a clear, transparent environmental review process that permitted meaningful public comment under applicable principles of federal environmental law.
Image from ncdot.gov
Oral arguments are set to take place before the Fourth Circuit Court of Appeals in Richmond, Virginia on March 20, 2012 in connection with an appeal asserted by several environmental groups seeking to stall construction of the Monroe Connector Bypass (commonly known as the “Monroe Bypass”) in Union County. If the Fourth Circuit rejects the appeal and allows the project to move forward, a groundbreaking is expected in August of this year, as reported late last week by the Charlotte Observer.
November 1, 2011 Update: Lawyers from the Southern Environmental Law Center have appealed Judge Dever’s decision to the 4th Cirtcuit Court of Appeals. As the Charlotte Observer notes, the appeal is not expected to postpone construction of the bypass. Also in today’s Charlotte Observer is this story regarding the potential far-reaching impact of the project, including for area construction crews.
Original October 25, 2011 Story: Earlier today, summary judgment entered in favor of the N.C. Department of Transportation (“NCDOT”) in a lawsuit brought by lawyers from the Southern Environmental Law Center seeking to stop the Monroe Bypass project in Union County from moving forward. As reported by News 14 Carolina (story and video here), work can now begin on the $824 million project. The new toll road will run approximately 20 miles from Highway 74 at I-485 to Highway 74 between Wingate and Marshville.
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Based on my cursory review of the Monroe Bypass opinion, it appears the attorneys for the Southern Environmental Law Center advanced arguments that are substantially similar to those they are making in a separate litigation concerning the planned Bonner Bridge replacement project in Dare County, on which I commented back in September. Specifically, counsel argued that NCDOT did not carefully analyze the potential environmental impacts of the project, thereby violating the National Environmental Policy Act (“NEPA”) of 1969. Judge James C. Dever III disagreed in a 28-page Order reciting, in a fair amount of detail, the steps taken by NCDOT to analyze the environmental impacts of the project and comply with NEPA.
Since both the Monroe Bypass and Bonner Bridge matters are pending in the U.S. District Court for the Eastern District of North Carolina, Judge Dever’s ruling is likely to cast a long shadow over the OBX litigation. Indeed, unless NCDOT handled the environmental impact studies for the OBX project in a substantially less comprehensive manner than Judge Dever describes with respect to the Monroe Bypass project, it is difficult to envision a scenario where the Southern Environmental Law Center prevails in stopping the Bonner Bridge replacement project from moving forward.
While construction crews continued making steady progress repairing the damage Hurricane Irene inflicted upon Route 12 in the Outer Banks in late August (updates can be found here and here), lawyers for the N.C. Department of Transportation were busy responding to a complaint filed by two national non-profit organizations seeking to put the kibosh on the State’s current plan for replacing the Herbert C. Bonner Bridge, which spans the Oregon Inlet and connects Hatteras Island with the rest of the Outer Banks.
Plaintiffs Defenders of Wildlife and the National Wildlife Refuge Association filed their Complaint on July 1, 2011 alleging, among other things, that NCDOT violated various federal environmental laws in failing to “rigorously explore and objectively evaluate” alternatives to the bridge’s replacement, including a “no action” alternative that would scrap the bridge entirely in favor of utilizing high-speed ferries. NCDOT lawyers answered the Complaint on September 6, denying that the Department violated any federal laws and asserting that Plaintiffs had failed to state a claim against NCDOT upon which relief could be granted. Both the Complaint and the Answer are posted on NCDOT’s “Bonner Bridge Repair and Replacement Projects” webpage. Additional coverage by the North Beach Sun can be found here.
Incidentally, the replacement project went out to bid between the filing of the Complaint and the filing of the Answer. Specifically, in late July, NCDOT awarded a $215.8 million contract to the design-build team of PCL Civil Constructors Inc. and HDR Engineering Inc. of the Carolinas; the Department’s press release can be found here.
As of the date of this blog post, the Plaintiffs had not sought any preliminary injunctive relief to stop the design process in its tracks. I’ll keep my eye out for developments in the litigation and keep you posted as this matter unfolds.