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stripped the Connector of its funding and repealed the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