December 13, 2016
CATAWBA RIVERKEEPER FOUNDATION; CLEAN AIR CAROLINA, Plaintiffs-Appellees,
NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; NICHOLAS J. TENNYSON, in his official capacity as Secretary of NCDOT, Defendants-Appellants, and FEDERAL HIGHWAY ADMINISTRATION; JOHN F. SULLIVAN, in his official capacity as Division Administrator of FHWA, Defendants.
Argued: September 21, 2016
from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
Chief District Judge. (5:15-cv-00029-D)
and remanded with instructions by published opinion. Judge
Diaz wrote the opinion, in which Judge Duncan and Judge
Thomas Slusser, NORTH CAROLINA DEPARTMENT OF JUSTICE,
Raleigh, North Carolina, for Appellants. Kimberley
Hunter, SOUTHERN ENVIRONMENTAL LAW CENTER, Chapel Hill, North
Carolina, for Appellees.
Cooper, Attorney General, NORTH CAROLINA DEPARTMENT OF
JUSTICE, Raleigh, North Carolina, for Appellants.
H. McGee, SOUTHERN ENVIRONMENTAL LAW CENTER, Chapel Hill,
North Carolina, for Appellees.
DUNCAN, KEENAN, and DIAZ, Circuit Judges.
appeal involves the proposed construction of the Gaston
East-West Connector,  a 22-mile toll road in North Carolina
spanning from southeast Gaston County to west Mecklenburg
County with new crossings over the South Fork and Catawba
Rivers. The Catawba Riverkeeper Foundation and Clean Air
Carolina (collectively, the "Conservation Groups")
brought suit against the North Carolina Department of
Transportation ("NCDOT"), the Federal Highway
Administration, and officials representing those agencies,
challenging the environmental analysis conducted for the
Connector. The district court granted the Conservation
Groups' motion for summary judgment.
the district court ruled, the North Carolina General Assembly
stripped the Connector of its funding and repealed the
statute that expressly authorized its construction. And after
the district court entered judgment, state and local
authorities removed the Connector from the various planning
models for such projects. At oral argument, NCDOT represented
that the Connector is no longer viable. In light of these
developments, we conclude that this appeal is moot and
accordingly vacate the district court's judgment.
planners in Gaston County, North Carolina first considered
the need to construct a bypass to improve east-west mobility
between Gaston County and Mecklenburg County in the late
1980s. NCDOT began studying the project in 2001, meeting with
other agencies and local authorities to assess the benefits
of the project relative to alternatives such as mass transit
or improvements to existing roadways. In coordination with
these officials, NCDOT determined that building a "new
location freeway" more effectively addressed the goals
of (1) "improv[ing] east-west transportation mobility .
. . between Gastonia and the Charlotte metropolitan
area" and (2) "establish[ing] direct access between
the rapidly growing area of southeast Gaston County and west
Mecklenburg County." J.A. 723.
required by the National Environmental Policy Act
("NEPA"), 42 U.S.C. § 4321, et seq.,
NCDOT and the Federal Highway Administration (collectively,
the "Agencies") began assessing the environmental
impact of the project. In the meantime, the North Carolina
General Assembly designated the Connector a candidate project
subject to the control of the North Carolina Turnpike
Authority. N.C. Gen. Stat. § 136-89.183(a)(2)(b) (2006)
(repealed by 2013 N.C. Sess. Laws § 5.1). The
General Assembly also gave the Turnpike Authority conditional
power to propose additional projects not expressly authorized
in the statute, provided they were "approved by the
General Assembly prior to construction" and "shown
in the current State Transportation Improvement Plan."
Id. § 136-89.183(a) (2) (2006) .
April 2009, the Agencies published for public review and
comment a draft Environmental Impact Statement for the
Connector. The draft statement considered twelve alternative
"new location" controlled-access toll roads,
ranging from 21.4 to 23.7 miles in length, assessed each
alternative's capacity to meet the project's needs,
and compared each with a "no-build" baseline
alternative. The Agencies also forecasted traffic demand and
distribution in the geographic area through 2030, creating
both a "build" forecast depicting how a network of
transportation facilities would operate with projected future
traffic volumes and a "no build" baseline forecast.
develop the traffic forecasts, the Agencies relied on data
derived from socioeconomic forecasts prepared by area
planning organizations that assumed construction of the
Connector. The Agencies superimposed each alternative onto
this set of socioeconomic projections and eliminated
alternatives from further study on this basis. The draft
Environmental Impact Statement also contained a qualitative
Indirect and Cumulative Effects ("ICE") report,
describing the Connector's estimated effects on growth
and land use, wildlife habitat, and water resources in the
response to requests from environmental advocates and other
agencies, the Agencies also published a quantitative ICE
report that analyzed future land-use change. They first
created a "build" forecast and then employed a
"gravity model" to reallocate the growth effects to
create the "no build" forecast
baseline. The Agencies determined that construction
of the Connector would result in 3, 700 additional households
and 300 fewer jobs in the study area when compared to the
"no build" forecast.
Agencies subsequently published a final Environmental Impact
Statement, addressing public and other agency comments on the
earlier draft statement and identifying the Connector as the
preferred alternative. They estimated the Connector's
cost to be about $943 million, to be paid for by toll revenue
bonds, an annual $35 million appropriation of "gap"
funding from the North Carolina General Assembly, and other
funding sources. In February 2012, the Federal Highway
Administration issued a Record of Decision, identifying the
Connector as the "environmentally preferable alternative
. . . because it represents the best overall balanced
minimization of all impacts analyzed." J.A. 3747.
Conservation Groups participated in the NEPA process for the
Connector, submitting comments and attending public meetings
to voice their concerns about the integrity of the
environmental analysis conducted by the Agencies. Following
our decision in North Carolina Wildlife Federation v.
North Carolina Department of Transportation, 677 F.3d
596 (4th Cir. 2012),  the Groups urged the Federal Highway
Administration to rescind the Connector's Record of
Decision and prepare a supplemental Environmental Impact
Statement. The Federal Highway Administration declined to do
Conservation Groups thereafter filed suit in the Western
District of North Carolina pursuant to the Administrative
Procedure Act, 5 U.S.C. § 701 et seq.
("APA"), seeking: (1) a declaratory judgment that
the Agencies violated NEPA by conducting a deficient
environmental analysis, (2) vacatur of the Record of
Decision, and (3) injunctive relief. After the parties filed
cross-motions for summary judgment, the court transferred the
case to the Eastern District of North Carolina.
the motions were pending, the North Carolina General Assembly
passed legislation requiring a data-driven prioritization
process to score and rank proposed transportation projects
based on a number of factors, including cost and congestion.
N.C. Gen. Stat. § 136-189.11. The Connector received a
low score under this new funding formula, ranking below 1,
200th place. The General Assembly subsequently repealed that
portion of the statute giving the Turnpike Authority express
power to build the Connector, 2013 N.C. Sess. Laws §
5.1, and rescinded the Connector's earmarked $35 million
annual funding. 2013 N.C. Sess. Laws § 4.8 (striking
funding for the "Garden Parkway, " previously
codified at N.C. Gen. Stat. § 136-176(b2)) .
these developments, the district court directed the parties
to brief whether the court retained subject matter
jurisdiction and whether the Turnpike Authority still had the
power to build the Connector. The parties urged the court to
resolve the pending motions for summary judgment, arguing
that the Turnpike Authority could still build the Connector
as an unspecified project because it remained on the list of
approved projects at both the state and local levels.
court proceeded to the merits and granted the Conservation
Groups' motion for summary judgment, holding that the
alternatives analysis underlying the Connector "violated
NEPA and the APA by using the same set of socioeconomic data
that assumed construction of the [Connector] to assess the
environmental impacts of the Build and No Build
alternatives." J.A. 324. The district court also agreed
with the Conservation Groups that the Agencies failed to
adequately assess and disclose the Connector's
environmental impacts, reasoning that:
[D]efendants' fundamental assumption that the [Connector]
would have no effect on overall growth in the Metrolina
region, unsupported by any evidence showing complete
saturation of the region, and their use of the gravity model
to reallocate assumed growth in the No Build condition
constitute clear error and violates NEPA and the APA.
J.A. 325. The court consequently vacated the Record of
Decision for the Connector.
the district court's ruling, the last domino fell for the
Connector when it was removed from local and state
transportation plans,  which in turn meant that it was no longer
eligible for federal funding. In short, the Connector no
longer has the statutory authority or funding to proceed.
appeals the merits of the district court's decision. But
preliminarily, it also contends that the case is now moot,
and therefore seeks vacatur of the district court's order
granting summary judgment to the Conservation Groups. Because
we agree with NCDOT that developments subsequent to the
district court's ruling render the appeal moot, we do not
address the merits of the district court's ruling.
III limits the jurisdiction of federal courts to cases and
controversies. U.S. Const, art. Ill. § 2, cl.1.
"The doctrine of mootness originates in Article
Ill's 'case' or 'controversy'
language." Incumaa v. Ozmint, 507 F.3d 281, 286
(4th Cir. 2007) (quoting Daimler Chrysler Corp. v.
Cuno, 547 U.S. 332, 352 (2006)) (internal quotation
marks omitted). Thus, "[t]o remain a justiciable
controversy, a suit must remain alive throughout the course
of litigation, to the moment of final appellate
disposition." Bahnmiller v. Derwinski, 923 F.2d
1085, 1088 (4th Cir. 1991) (internal quotation marks
if a plaintiff has standing when he or she files a complaint,
subsequent events can moot the claim." Pashby v.
Delia, 709 F.3d 307, 316 (4th Cir. 2013). "A case
becomes moot, and thus deprives federal courts of subject
matter jurisdiction, when the issues presented are no longer
'live' or the parties lack a legally cognizable
interest in the outcome." Id. (internal
quotation marks omitted). In other words, a case is moot when
"our resolution of an issue could not possibly have any
practical effect on the outcome of the matter."
Norfolk S. Ry. Co. v. City of Alexandria, 608 F.3d
150, 161 (4th Cir. 2010).
contends that this case became moot when local and state
planners removed the Connector project from their respective
transportation improvement plans, rendering the Connector
"no longer eligible for federal funding or construction
regardless of the merits of the NEPA issue on appeal."
Appellants' Br. at 32-33. At oral argument, counsel for
NCDOT represented that "the [Record of Decision] is
really a nullity, " and further that "[t]his
Project is defunct. It's no longer moving forward."
See also Appellants' Br. at 26 ("The
Project . . . is no longer viable").
turn, although the Conservation Groups concede that the
Connector now lacks funding, they say that the case still
presents a live controversy because the Record of Decision
that approved the project has not been rescinded and could
thus "be used to allow construction of the Connector at
a later date." Appellees' Br. at 24. As they see it,
little more than shifting political priorities and funding
hinder NCDOT from using the Record of Decision to build the
Connector on the basis of an allegedly flawed NEPA analysis.
We do not agree.
things now stand, the Connector faces multiple barriers to
construction. To be built, it must overcome the poor ranking
it received under the new funding formula enacted by the
General Assembly, local and state planners must reincorporate
the Connector into the various local and state transportation
improvement plans, and the state legislature must reallocate
about $900 million to the project. Moreover, even if these
events come to pass, clearing the Connector's path to
construction, we are not persuaded by the Groups'
assertion that NEPA's implementing regulations allow the
Agencies to conduct only a "superficial" and
cursory reevaluation of the Connector's Record of
Decision. See 23 C.F.R. § 771.129(b) (requiring
a written evaluation of the final Environmental Impact
Statement if "major steps to advance the action . . .
have not occurred within three years after the approval of
the final EIS"). Instead, the regulatory regime under
which the Agencies operate renders the likelihood that NCDOT
would proceed immediately to construct the Connector pursuant
to a now four-year-old Record of Decision exceedingly remote.
these circumstances, we decline the Conservation Groups'
request to issue "an opinion advising what the law would
be upon a hypothetical state of facts." Preiser v.
Newkirk, 422 U.S. 395, 401 (1975) (quoting North
Carolina v. Rice, 404 U.S. 244, 246 (1971)). " [W]
e may only decide cases that matter in the real world, "
and as such, can offer no relief to the Conservation Groups
because the Connector and its underlying NEPA analysis,
deficient or not, pose only hypothetical and speculative
harm. Norfolk, 608 F.3d at 161 (internal quotation
marks omitted); see also Preiser, 422 U.S. at 402 (a
request for declaratory relief survives a mootness challenge
where the facts "show that there is a substantial
controversy, between parties having adverse legal interests,
of sufficient immediacy and reality to warrant the
issuance of a declaratory judgment") (internal
quotation marks omitted); Connecticut v.
Massachusetts, 282 U.S. 660, 674 (1931) (An injunction
"will not be granted against something merely feared as
liable to occur at some indefinite time in the
given the remote possibility that the Connector could proceed
pursuant to the allegedly deficient Record of Decision, and
given NCDOT's representations on appeal that the
Connector is no longer viable, we cannot agree with the
Conservation Groups that "[r]evival of the Connector is
a real possibility." Appellants' Br. at 28. This
case is moot.
now to whether we should vacate the district court's
judgment. The Conservation Groups contend that even if the
case is moot, vacatur is improper because the circumstances
that deprive us of subject matter jurisdiction are not the
product of "happenstance, " but rather the direct
result of NCDOT's lobbying and decisions. In other words,
the Groups argue that NCDOT contributed to the
Connector's demise, mooting this case. But as we explain,
we do not think it proper to impute the actions of state
legislators and local planners to NCDOT. Accordingly, we
shall vacate the district court's judgment.
"customary practice when a case is rendered moot on
appeal is to vacate the moot aspects of the lower court's
judgment." Norfolk, 608 F.3d at 161. In such
circumstances, the equitable remedy of vacatur
"'clears the path for future relitigation of the
issues between the parties.'" Alvarez v.
Smith, 558 U.S. 87, 94 (2009) (quoting United States
v. Munsingwear, 340 U.S. 36, 40 (1950)).
Supreme Court, however, has recognized exceptions to this
general practice in instances where mootness occurs through
the voluntary action of the losing party, rather than through
happenstance. See U.S. Bancorp Mortg. Co. v. Bonner Mall
P'ship, 513 U.S. 18, 29 (1994) ("[M]ootness by
reason of settlement does not justify vacatur of a judgment
under review."); Karcher v. May, 484 U.S. 72,
82-83 (1987) (vacatur inappropriate when losing party fails
to pursue its appeal) . Consistent with that precedent, we
too have said that " 'vacatur normally is not
appropriate . . . when the losing party's deliberate
actions have rendered moot an otherwise live
controversy.'" United States v. Springer,
715 F.3d 535, 541 (4th Cir. 2013) (quoting Remus Joint
Venture v. McAnally, 116 F.3d 180, 185 (6th Cir. 1997)).
"The rationale for this rule is that appellants should
not be allowed to escape the preclusive effect of an adverse
district court judgment simply by taking a unilateral action
during the pendency of their appeal to moot the matter."
Id. at 542.
where "appellate review of the adverse ruling was
prevented by 'the vagaries of circumstance, '"
vacatur remains available, "subject ... to
considerations of the public interest." Valero
Terrestrial Corp. v. Paige, 211 F.3d 112, 117-18 (4th
Cir. 2000) (quoting Bancorp, 513 U.S. at 25)). Thus,
when determining the propriety of vacatur in a moot appeal,
our decision is "informed almost entirely, if not
entirely, by the twin considerations of fault and public
interest." Id. at 118.
Conservation Groups contend that vacatur is inappropriate
because NCDOT "contributed to the mootness of which they
now complain, " by lobbying the General Assembly for the
enactment of the new transportation funding statute and
formally approving the Connector's removal from the
state's transportation improvement program.
Appellees' Br. at 30. We do not agree.
dispel first the Groups' assertion that NCDOT's
support of transportation funding reform-characterized by the
Groups as an "intentional intercession in the
legislative process"-is sufficient to impute the actions
of the General Assembly to NCDOT. Id. To the
contrary, our precedent counsels against conflating the
actions of a state executive entity with those of a state
legislature. Valero, 211 F.3d at 115.
Valero, the appellant corporation brought suit
against various West Virginia executive agencies, challenging
the constitutionality of certain provisions of the West
Virginia Code pertaining to waste disposal and management
regulation. Id. The district court declared the
provisions constitutionally invalid and issued a permanent
injunction prohibiting their enforcement. Id.
Shortly after judgment was entered, the West Virginia
Legislature revised the enjoined provisions, mooting the case
and prompting the executive agencies to seek vacatur of the
adverse decision. Id.
appeal, we affirmed the district court's vacatur of its
decision, distinguishing explicitly between the actions of
the state legislature in amending the statutory provisions at
issue, thereby mooting the case, from the actions of the
defendant state executive officials, holding that
"defendant state executive officials are in a position
akin to a party who finds its case mooted by
'happenstance, ' rather than events within its
control." Id. at 121 (internal quotation marks
omitted). As a result, we concluded that the principal
consideration of "fault" counseled in favor of
here, NCDOT, a state executive agency, is a separate entity
from the North Carolina General Assembly. That NCDOT lobbied
the General Assembly in support of the transportation funding
reform does not alter this central distinction, nor does it
warrant the conclusion that NCDOT "caused" the
Connector's demise. See Chem. Producers &
Distribs. Ass'n v. Helliker, 463 F.3d 871, 879 (9th
Cir. 2006) ("Lobbying Congress or a state legislature
cannot be viewed as 'causing' subsequent legislation
for purposes of the vacatur inquiry. Attributing the actions
of a legislature to third parties rather than to the
legislature itself is of dubious legitimacy . . . .") .
to the extent that the enactment of transportation funding
reform helped to render this case moot, we view it as the
consequence of actions of the North Carolina General
Assembly, not NCDOT. See Rio Grande Silvery Minnow v.
Bureau of Reclamation, 601 F.3d 1096, 1131 (10th Cir.
2010) ("[T]he acts of the legislature are not the acts
of executive branch agencies, states, or private
next to the Groups' assertion that vacatur is
inappropriate because NCDOT intentionally mooted the case
when it approved the removal of the Connector from the
state's transportation improvement program. Two points
readily dispense with this argument: (1) planners at the
local level retain discretion over which projects to include
in their transportation improvement plans, 23 C.F.R. §
450.326(a), and (2) federal regulations require that an
approved local transportation plan be included in the
state's transportation improvement program without
change. See 23 C.F.R. § 450.218(b). As such,
although NCDOT approved the Connector's removal from its
statewide plan, that result was a fait accompli following the
local planning agency's decision to remove the Connector
from its transportation plan. Put simply, NCDOT did not act
voluntarily to moot this case.
we consider the public interest. We have recognized that
"there is a substantial public interest in judicial
judgments." Valero, 211 F.3d at 118. This is
because " [ j]udicial precedents are presumptively
correct and valuable to the legal community as a whole."
Id. (quoting Bancorp, 513 U.S. at 26) . In
Bancorp, the Supreme Court's concern for the
public interest led the Court to withhold the remedy of
appellate vacatur from the losing party who had mooted the
case through settlement, thereby "voluntarily
forfeit[ing] his legal remedy by the ordinary processes of
appeal or certiorari." 513 U.S. at 25. The Court
reasoned that employing the remedy of vacatur in that
instance constituted "a refined form of collateral
attack on the judgment" that would "disturb the
orderly operation of the federal judicial system, " and
therefore did not serve the public interest. Id. at
concern, however, did not prevent the Court in
Bancorp from "stand[ing] by" the
proposition that "mootness by happenstance provides
sufficient reason to vacate." Id. at 23, 25 n.3
(citing Munsingwear, 340 U.S. at 40-41) . We see no
reason to depart from that general principle here. Because
events beyond the parties' control have mooted this
appeal, leaving the district court's decision undisturbed
would not serve the public interest.
reasons given, we vacate the district court's judgment
and remand the case with instructions that the district court
dismiss the action. See Mellen v. Bunting, 327 F.3d
355, 364 (4th Cir. 2003) ("If a claim becomes moot after
the entry of a district court's final judgment and prior
to the completion of appellate review, we generally vacate
the judgment and remand for dismissal.").
AND REMANDED WITH INSTRUCTIONS.
 The Connector is known locally as the
 This assessment, which includes time
for public notice and comment, ultimately leads to the
preparation of a Record of Decision. The Record of Decision
"identifies the Selected Alternative, presents the basis
for the decision, identifies all the alternatives considered,
specifies the 'environmentally' preferable
alternative, ' and provides information on the adopted
means to avoid, minimize, and compensate for environmental
impacts." J.A. 1480.
 A gravity model produces quantified
results that can serve as the basis for assessing land use
change. The model "essentially holds that all other
factors influencing development held constant, growth will
shift towards areas with the greatest relative accessibility
improvement as a result of the project." J.A.
 That case concerned the proposed
construction of the Monroe Connector Bypass by the Agencies.
677 F.3d at 598. We concluded that the Agencies violated NEPA
by failing to disclose to the public that the Bypass's
underlying NEPA analysis relied on socioeconomic data that
assumed construction of the Bypass and by disseminating
erroneous information about that assumption. Id. at
603. Although we did not decide whether NEPA permitted the
Agencies to use data assuming the construction of the Bypass
when creating a "no build" baseline, we noted that
"courts not infrequently find NEPA violations when an
agency miscalculates the 'no build' baseline or when
the baseline assumes the existence of a proposed
 The Court declined to grant injunctive
relief, finding it unnecessary given its ruling.
 The project remains on a 2040 horizon
year plan prepared by local authorities, but it now takes the
form of a 3.4-mile long bridge crossing facility.
 Our sister circuits have also
distinguished the actions of an executive entity from those
of the legislature for purposes of the "voluntary
action" presumption against vacatur. See, e.g.,
Khodara Envtl., Inc. v. Beckman, 237 F.3d 186, 195
(3d Cir. 2001) (vacating a lower court's judgment as
mooted by legislative amendment and rejecting the
appellee's assertion that the appellant Federal Aviation
Association "misuse[d] . . . the legislative
process" to encourage Congress to amend the challenged
statute "to frustrate an unfavorable judgment");
Nat'l Black Police Ass'n v. District of
Columbia, 108 F.3d 346, 353 (D.C. Cir. 1997)
(presumption against vacatur "is usually inapplicable
when legislative action moots a case and the government seeks