Appeals Court rules NC DOT/Turnpike messed up permit - delay on Monroe Connector Bypass tollroad

May 7, 2012
By Peter Samuel

2012-05-07: North Carolina DOT/NCTA and FHWA had won the first round of litigation by environmental groups against the permitting of the Monroe Connector Bypass southeast of Charlotte and was close to completion of right of way purchase and start of construction. The US record of decision had been obtained last fall from the Federal Highway Administration (FHWA), the procurement of a contractor (United Infrastructure) was complete and financial close reached for funding.

But May 3 in a unanimous 16 page ruling a 3-judge US Appeals Court (4th Circuit, Richmond VA) sided with the enviros issuing a strong rejection of "the Agencies" (NCDOT/NCTA and FHWA) defense, saying they had violated the NEPA process by using false data to support their choice of the toll expressway bypass over alternatives. The Court "remanded" the case, apparently requiring NCDOT and FHWA to redo their NEPA permitting. The project is now on hold.

At issue was data presented as the traffic expected in 2035 under a No Build option.

Consultants Michael Baker & Co apparently messed up using trip data that the local metropolitan planning organization called MUMPO projected assuming the construction of the expressway bypass, but presenting it as valid data for No Build.

During litigation NCDOT/NCTA at first denied but eventually acknowledged the mistake. It added a correction to the NEPA documents and claimed it made no material difference to the conclusion. FHWA accepted the belated NCDOT correction. So did the first judge to hear the enviros' case US District Court judge in North Carolina,  James Dever, October 25 last year.

Dever said he had "reviewed the record holistically" and concluded that "the misstatements were not materially false or misleading and did not violate NEPA."

Reversed emphatically

But he is reversed emphatically by the US Appeals Court May 3: "The Agencies now admit that the administrative record mischaracterizes the 'no build' data. Such an acknowledgment made during litigation does not change the fact that the NEPA process itself relied on those mischaracterizations. For example, the Record of Decision--the 'final agency action,' Natural Desert, 625 F.3d at 1118, and conclusive statement of 'what the [agency's] decision was,' 40 C.F.R. 1505.2(a) --incorrectly states that the 'socioeconomic forecasts for the No Build Scenario did not include the Monroe Connector.

"Litigation admissions cannot change this...

"Accordingly, we reject the Agencies' argument that their after-the-fact disclosures assuage the harms incurred during the NEPA process....

"In sum, although we need not and do not decide whether NEPA permits the Agencies to use MUMPO's data in this case, we do hold that by doing so without disclosing the data's underlying assumptions and by falsely responding to public concerns, the Agencies failed to take the required 'hard look' at environmental consequences."

NCDOT reviewing the ruling


NCDOT in a statement says: "We are reviewing the ruling with our legal and environmental experts. Once we have reviewed this ruling, we will work on our legal and procedural options to advance the project by addressing the court's concerns as soon as possible.  While this ruling will cause delays, it does not mean the project will not move forward. We hope to have a new plan and timeline developed and released to the public within the next few weeks."

The project

The Monroe Bypass is a $900m 20 mile, 32km long 2x3 lane expressway with eight interchanges upgrading and bypassing US74 on the southeast outskirts of the Charlotte area. Starting out at the I-485 belt route around Charlotte, it is designed to improve local mobility in the greater Charlotte area, plus form part of an upgrade to expressway standard of a mixed route including I-74 to I-95 and further to the Atlantic coast at Wilmington NC.

It would be all-electronic with seven toll gantries.

The screwed-up permitting process which took four years has allowed environmental groups to scream malfeasance by the highway builders and disregard for "sprawl" supposedly promoted by highways. No-Build of the highway upgrade would probably simply divert the so-called sprawl development elsewhere to places with better highway connections. Meanwhile more motorists sit longer in traffic.

on Monroe Bypass:

http://www.ncdot.gov/projects/monroeconnector/

Judge Dever's OK:

http://www.ncdot.gov/projects/monroeconnector/download/monroe_Opinion.pdf

US Appeals Court ruling:

http://tollroadsnews.com/sites/default/files/USctAppeals201205.pdf

TOLLROADSnews 2012-05-07

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