No way on the highway

The notion of a bypass around U.S. 74 from Charlotte into Union County had been kicking around for years before the newly formed Turnpike Authority in 2007 proposed the construction of a 20-mile toll road that would run parallel to U.S. 74, skirt Monroe and connect to the Interstate 485 beltway southeast of Charlotte.

Under the supervision of the Federal Highway Administration, the state Department of Transportation moved ahead with the project, the Monroe Connector, and appeared to be on track to begin construction – until May 3. That’s when the 4th U.S. Circuit Court of Appeals, perplexed by the DOT’s conduct during the environmental review process, sent the project back to the drawing board after finding that the department had misrepresented critical assumptions about environmental impact.

“The record is devoid of any evidence establishing that the region is developmentally saturated such that a major toll road will have no appreciable environmental impact,” wrote Judge Diana Gribbon Motz. “Here the agencies not only failed to disclose the assumptions underlying (their data), but also provided the public with erroneous information.”

The decision, said attorney David Farren of the Southern Environmental Law Center, is “a wake-up call for the DOT and other transportation agencies around the county that the only way to assess environmental impacts of building major highways is to factor in resulting sprawl development on the landscape.”

Build or no build

During the project review, DOT released its draft environmental impact statements for public comment and then submitted a final impact statement for approval under the National Environmental Protection Act. Those statements are critical not only because they provide the means by which the public can assess the project but also because the department needs them to obtain permits from various water and sewage agencies.

Here, DOT represented that construction of the connector would have little environmental impact. In reaching that conclusion, the department looked at the impact that building the road would have on traffic, jobs, the environment and other factors when compared with not building the road – a “build” vs. “no build” analysis.

In public comment, the N.C. Wildlife Federation and other groups began questioning the validity of the DOT’s statements because some of the agency’s conclusions appeared implausible. For example, DOT estimated that traffic volume in 2035 would actually be less if the road were built than if it weren’t. DOT also projected minimal environmental effects in both scenarios.

The groups suspected that DOT had relied on flawed data from the local metropolitan planning organization and asked, point blank, whether the agency had assumed the construction of the Monroe Connector in its “no build” scenario. At each step of the way, the agencies alternatively ignored those questions or responded that the Monroe Connector was not factored into the “no build” baseline and approved the project in August 2010.

In November 2010, N.C. Wildlife Federation, Clean Air Carolina and Yadkin Riverkeeper filed suit in the U.S. District Court to stop construction of the connector, contending that DOT had failed to analyze the environmental impacts, conducted a flawed analysis of alternatives and misrepresented facts to the agencies and the public.

“The nutshell to this case is that DOT compared building the road to building the road, and then lied about it,” Farren said. “We filed for a preliminary injunction because we were concerned that they would go ahead and issue bonds, and once they did that they’d be psychologically locked in to pursuing the project. And we were also told that they were going to enter into a contract with a contractor to build the project and that they were pursuing right of way acquisitions.”

During the injunction hearing, the DOT admitted for the first time since the inception of the project that the “no build” baseline did in fact assume the existence of the connector. Nonetheless, the district court denied the injunction and then later granted the agencies’ summary judgment motion dismissing the complaint, finding that despite the agencies’ misrepresentations, they had taken steps to assure otherwise that the environmental impact would be minimal.

The judges on the 4th Circuit panel, though, were not impressed. At times confounded by the DOT’s actions and impatient with counsel’s explanations, the judges grilled the attorneys for the agencies.

“If DOT knew there was an error there, why didn’t it explain that there was an error?” Motz asked. “Isn’t it all about the process? It’s supposed to be clean, crystal clear and open?”

Judge Dennis Shedd added, “So you made an error, and you did nothing to correct that error, correct? And then you say that litigation suffices to make the information public about that error? You think that suffices?”

The court’s decision to send the project back to the review process has national implications, according to Farren. “There are only a handful of cases around the country at the appellate level that speak to the issue of the environmental impacts of beltway projects like this to induce low-density sprawling development,” he said. “And the fact that the 4th Circuit, which is traditionally very conservative – we had two conservatives out of the three on the panel – the fact that they saw this and they called the DOT on it is highly significant.”

A road ahead?

The DOT quickly responded to the court’s ruling by assuring that the project would go forward.  “We are reviewing the ruling with our legal and environmental experts,” DOT Secretary Eugene Conti said in a May 3 press release. “While (it) 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.”

DOT spokesperson Greer Beatty had no further comment a week later and said that news concerning the department’s next steps would be released publicly when available.

But Farren is not so sure. Though the court did not impart bad faith to the DOT, and the SELC didn’t push on that question, Farren noted that in 2010 an SELC attorney had emailed Jennifer Harris, a Turnpike Authority engineer, asking whether the bypass was included in the no-build data. Harris never responded, he said, but as the SELC later discovered through public records requests, she forwarded the email along to a colleague with a “wink” emoticon.

“It’s sad for all the people who have houses in the path of the projects, and it’s sad for the taxpayers because there are billions of dollars of projects just like this in the pipeline under the stewardship of the Turnpike Authority and DOT,” Farren said.

The SELC is challenging the environmental review and permitting processes in some of those other high-profile projects.

There’s the Garden Parkway in Charlotte, a project mired in allegations of fudged job-impact numbers that resulted in a skewed environmental study.  The state’s own consultant said there would be significant job loss off the Interstate 85 corridor, and some jobs would shift into South Carolina because the road loops so far south into Gastonia, Farren said.  At the Turnpike Authority’s request, the consultant reviewed and revised those numbers down to a few hundred. Then the Charlotte Chamber of Commerce hired its own consultant who said it would actually create about 20,000 jobs.

And there’s the Mid-Currituck Bridge project, where the DOT is projecting massive toll revenue to justify the project, yet claiming minimal environmental impact.

“On the one hand DOT is projecting all this traffic that’s going to come through to support the bonds, but on the other it’s downplaying that to support getting its permits,” Farren said. The SELC has proposed lower cost alternatives: turn lanes and widening roads where appropriate.

“Given that this is a shifting barrier island, and all the problems on N.C. 12 with the blow outs of the road south of the Bonner Bridge from recent storms,” Farren said, “do we really want to be encouraging massive development on this ribbon of sand?”

“Neither project is ripe for a legal challenge, but we’ve challenged them administratively.”

And then there are projects that have stalled for years, holding up property owners while the DOT reorders its priorities and funding disappears. The Northern Beltway in Winston-Salem and the Triangle Expressway Southeast Extension – both in litigation brought by landowners tired of waiting 15 years or more for the DOT acquire their property – are just two examples.

Ironically, some funding is in place for the Monroe Connector, with more that $600 million in bonds issued so far, according to Farren. If the project ultimately collapses, the DOT claims to have an opinion from bond counsel that the funds can be applied to a different project, he added.

That bond money only goes so far.

“One thing that’s always said about the funding for these projects is that,  ‘The tolls cover the project, so if people want to pay the tolls what’s the problem?’” Farren said. “Well, the revenues almost always fall short of the projections. And for the Monroe Project, the tolls are only projected to pay 40 percent of the cost of the project. So even under the best cases, these projects are 60 percent taxpayer-funded, 40 percent tolls.”

This is a pivotal moment for transportation policy in North Carolina, Farren said. “We have the draft long-range transportation plan out on public notice. DOT is proposing to spend $160 billion between now and 2040, and they’re including projects like these that were identified as needed in the 1980s.”

To meet 21st century realities, Farren said, the DOT needs to stop becoming wedded to its projects and start thinking outside the box.

“What we have is this chicken-and-egg situation where you have these legacy projects, they get put on a map and they become the metropolitan planning organization’s priorities because they’ve been promised by the DOT,” he said. “And then the DOT points to the MPOs and says, ‘Look, they want it.’

“We’ve got to break that cycle, because we don’t have the money and these projects are ultimately very expensive, not only in laying the concrete but in the water and sewer and schools and water and air pollution. And we need to openly look at alternatives and stop chasing our tails building the bypass, and then the bypass to the bypass, and that’s what the Monroe Connector would be.”

MCCLOSKEY writes for North Carolina Lawyers Weekly, a sister publication to The Mecklenburg Times. She can be reached at [email protected].