Federal Appeals Court upholds ruling favoring Mid-Currituck toll bridge | Eastern North Carolina Now

    Publisher's Note: This post appears here courtesy of the Carolina Journal. The author of this post is CJ Staff.

    The 4th U.S. Circuit Court of Appeals has affirmed a trial court ruling protecting the Mid-Currituck toll bridge from a challenge by environmental groups.

    The unanimous appellate panel agreed with the trial court that the N.C. Department of Transportation and the federal government did not violate federal law in approving the bridge.

    "The Currituck Sound separates the northern barrier islands of North Carolina's Outer Banks from the state mainland. With their sandy beaches and seaside views, the Outer Banks are a popular tourist destination. But the Wright Memorial Bridge is the only highway crossing the Sound to the Outer Banks - so congestion is common on area roads, especially in the summer," wrote Judge Albert Diaz.

    "The North Carolina Department of Transportation and the Federal Highway Administration ... had long considered constructing a second bridge spanning the Sound," Diaz added. "After decades of stalled progress, the agencies in 2019 memorialized their decision to build a two-lane toll bridge across the mainland and Outer Banks."

    The $500 million bridge project extends from Aydlett on the mainland to Corolla on the Outer Banks.

    The Southern Environmental Law Center filed suit in 2019 on behalf of the North Carolina Wildlife Federation and a citizens group called No Mid-Currituck Bridge-Concerned Citizens and Visitors Opposed to The Mid-Currituck Bridge. The complaint argued that government agencies violated the National Environmental Policy Act when approving the bridge.

    "The National Environmental Policy Act, the country's flagship environmental law, requires federal agencies to 'take a "hard look" at environmental impacts before undertaking major actions,'" Diaz noted.

    Discussion of the project dated back to 2008, and agencies prepared an environmental impact statement by 2012. But the state pulled funding for the project for several years. Once the project resumed, government officials reviewed the EIS but did not prepare a new one.

    "We begin with Plaintiffs' contention that the agencies violated the Act by failing to prepare a supplemental EIS where significantly changed circumstances demanded it," Diaz wrote. "The agencies reply that they took a hard look at the updated information and determined that none of it merited a supplemental EIS. We agree with the agencies."

    "Plaintiffs point to three areas where they claim significant new information had emerged since the EIS: (1) traffic forecasts, (2) growth and development patterns, and (3) sea-level projections. They also argue the agencies erred in not reconsidering the viability of alternatives given this new information," Diaz wrote. "[W]e disagree that any of these developments compelled the agency to publish a supplemental EIS."

    An updated forecast suggested a 39% drop in average daily traffic on the bridge. "[I]t's thus unclear why reduced traffic over the bridge - which would seem to decrease the bridge's environmental footprint - would require a supplemental EIS," Diaz wrote.

    "The agencies reasonably concluded that the bridge would still meet its purposes as well as (or better than) the other alternatives even if traffic on it were moderately reduced," the 4th Circuit opinion explained. "The new traffic forecasts 'did not call into question the entirety' of the bridge, the choice of the bridge over alternatives, or the bridge's environmental impact - 'or at least [the agencies were] entitled to so conclude.'"

    The 4th Circuit also addressed bridge critics' complaints about rising sea levels. "Plaintiffs claim that the agencies ignored the most up-to-date data on sea-level rise, which (according to Plaintiffs) show that the bridge 'may become inaccessible' under new projections," Diaz wrote. "The agencies respond that they originally found that the bridge would be 'a useful asset' if existing roads flooded, and that their reevaluation reaffirmed that conclusion."

    "In sum, the agencies took a hard look at the new information proffered, and their decision to not prepare a supplemental EIS wasn't arbitrary or capricious," Diaz wrote.

    Appellate judges also rejected the bridge critics' arguments that government agencies failed to account correctly for the bridge's potential impact on local development.

    "Plaintiffs fault the agencies for glossing over the environmental impact of the extra 2,400 units that would be constructed under the bridge scenario. They claim that the EIS 'made no attempt to evaluate the effect of the Toll Bridge's additional development on the habitat, wildlife, and natural resources of the Outer Banks,'" Diaz wrote. "But the EIS does adequately account for this added development."

    Judges Steven Agee and Pamela Harris joined Diaz's opinion.