UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-2091

CLEAN AIR CAROLINA; YADKIN RIVERKEEPER; NORTH CAROLINA 

WILDLIFE FEDERATION,

Plaintiffs - Appellants,

v.

NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; FEDERAL HIGHWAY 

ADMINISTRATION; JOHN F. SULLIVAN, in his official capacity 

as Division Administrator of FHWA; NICHOLAS J. TENNYSON, in 

his official capacity as NC Secretary of Transportation,

Defendants - Appellees.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Raleigh. James C. Dever III, 

Chief District Judge. (5:14-cv-00863-D)

Argued: May 12, 2016 Decided: June 9, 2016

Before WILKINSON, MOTZ, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Kimberley Hunter, SOUTHERN ENVIRONMENTAL LAW CENTER, 

Chapel Hill, North Carolina, for Appellants. Erika Barnes 

Kranz, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; 

Thomas Norfleet Griffin, III, PARKER POE ADAMS & BERNSTEIN LLP, 

Charlotte, North Carolina, for Appellees. ON BRIEF: Ramona 

McGee, SOUTHERN ENVIRONMENTAL LAW CENTER, Chapel Hill, North 

Carolina, for Appellants. John C. Cruden, Assistant Attorney 

General, Jared Pettinato, Environment & Natural Resources 
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Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; 

Gloria Hardiman-Tobin, Jack Gilbert, Christopher S. Jones, 

FEDERAL HIGHWAY ADMINISTRATION, Atlanta, Georgia; Matthew L. 

Fesak, Assistant United States Attorney, OFFICE OF THE UNITED 

STATES ATTORNEY, Raleigh, North Carolina, for Appellees Federal 

Highway Administration and John F. Sullivan. Scott Slusser, 

Special Deputy Attorney General, NORTH CAROLINA DEPARTMENT OF 

JUSTICE, Raleigh, North Carolina, for Appellees North Carolina 

Department of Transportation and Nicholas J. Tennyson.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

The North Carolina Department of Transportation and the 

Federal Highway Administration (collectively “the Agencies”) 

approved construction of a twenty-mile toll road in western 

North Carolina linking Mecklenburg and Union Counties -- the 

Monroe Connector Bypass. Seeking to enjoin construction of the 

toll road, Clean Air Carolina, the North Carolina Wildlife 

Federation, and Yadkin Riverkeeper (collectively, “the 

Conservation Groups”) filed suit in 2010. The Conservation 

Groups contended that the process by which the Agencies approved 

the road violated the National Environmental Policy Act (“NEPA”)

and the Administrative Procedure Act (“APA”). See National 

Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-74 (2012); 

Administrative Procedure Act, 5 U.S.C. §§ 701-06 (2012).

The district court granted summary judgment to the 

Agencies. See N.C. Wildlife Fed’n v. N.C. Dep’t of Transp., No. 

5:10-CV-476-D, 2011 WL 5042075 (E.D.N.C. Oct. 24, 2011). On 

appeal, we reversed and remanded. See N.C. Wildlife Fed’n v. 

N.C. Dep’t of Transp., 677 F.3d 596 (4th Cir. 2012). We 

explained that “NEPA procedures emphasize clarity and 

transparency of process over particular substantive outcomes.” 

Id. at 603. “Because the Agencies failed to disclose critical 

assumptions underlying their decision to build the road and 

instead provided the public with incorrect information,” we held 
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that their lack of transparency violated NEPA. Id. at 598. We 

reserved judgment on the legitimacy of the Agencies’ analysis, 

and remanded “so that the Agencies and the public [could] fully 

(and publicly) evaluate” that analysis. Id. at 605.

In July 2012, the Agencies rescinded their prior Record of 

Decision and reinitiated the NEPA process. In November 2013, 

the Agencies published a new draft Environmental Impact 

Statement (“EIS”) indicating that they had “reevaluated the 

primary needs for the proposed action” and that “those needs 

[had] not changed” from those in the original EIS. In the time 

after issuance of the original EIS, the Agencies had reduced 

traffic congestion on U.S. 74 -- the road in question -- through

minor improvements in the infrastructure. The Agencies 

nevertheless concluded that “while providing some short-term 

benefit,” the minor improvements would “not meet the purpose and 

need for the Monroe Connector Bypass project.” The Agencies 

thus concluded that the toll road was still “the best option” 

for meeting the area’s long-term traffic needs.

In reaching that conclusion, the Agencies also reevaluated 

the data that they had failed to disclose to the public during 

the original NEPA process. In order to evaluate the 

environmental impact of building the toll road, NEPA requires 

the Agencies to compare the projected impact of building the 

toll road to a “no-build” baseline of the environmental impact
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without the road. Previously, the no-build baseline that the 

Agencies relied on had in some parts assumed the existence of 

the toll road -- and in denying that assumption the Agencies had 

not been transparent with the public. Now, admitting their 

original error, the Agencies conducted a new no-build analysis 

that properly excluded the existence of the toll road. They 

concluded, however, that the travel time and land use 

projections -- taking into account the correct information --

were identical to their original projections. Consequently, the 

Agencies confirmed that their original no-build model was 

accurate, and compared it to an updated build model based on 

current data.

In December 2013, the Agencies held public hearings on 

their draft EIS. The Conservation Groups submitted comments, 

including an expert report that criticized the Agencies’ 

reliance on their prior data. In May 2014, the Agencies 

simultaneously released a new final EIS and a new Record of 

Decision. The final EIS discussed updated socioeconomic 

projections, which had been released in January 2014, that 

projected growth in the area by 2040. Those projections showed 

that the surrounding counties would not grow as quickly as 

previously estimated, but would still reach the previous 

estimates by 2040. The Record of Decision thus confirmed the 
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Agencies’ decision to build the road. The Conservation Groups 

again filed suit.

The Conservation Groups alleged that the Agencies violated 

NEPA and the APA in four ways: (1) the alternatives analysis 

was arbitrary and capricious; (2) the environmental impact 

analysis was arbitrary and capricious; (3) the Agencies 

undermined NEPA by fostering a climate of misinformation; and 

(4) the Agencies should not have issued the final EIS and the 

Record of Decision at the same time.

In a lengthy opinion, the district court rejected those 

challenges. First, the court found that the Conservation Groups 

did not establish that the Agencies “failed to take a sufficient 

‘hard look’ at the reasonable alternatives.” Clean Air Carolina 

v. N.C. Dep’t of Transp., No. 5:14-CV-863-D, 2015 WL 5307464, at 

*8 (E.D.N.C. Sept. 10, 2015). The district court explained that 

the Agencies “adequately created and compared No Build and Build 

scenarios” and corrected their previous flaws in evaluating 

alternatives. Id. at *10. Second, the court found that the 

Agencies had adequately analyzed the environmental impacts of 

the project -- including any growth induced by the project 

itself and the cumulative impacts of the project. Id. at *11-

13. Third, the court found that “in light of the administrative 

record as a whole” the Agencies had complied with NEPA’s 

requirements for public comment and transparency. Id. at *14-
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15. Finally, the court found that the Agencies did not abuse 

their discretion in issuing the final EIS and the Record of 

Decision together. Id. at *15-16. Concluding that the Agencies 

had met all of the requirements of NEPA and the APA, the 

district court granted summary judgment to the Agencies. Id. at 

*17. The Conservation Groups then filed this appeal.

Having carefully considered the controlling law and the 

parties’ briefs and oral arguments, we affirm on the reasoning 

of the thorough district court opinion.

AFFIRMED