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Second DOT highway analysis deemed ‘flawed’

Property owners in limbo over connector routeA ruling from a federal judge last week granting summary judgment to two conservation groups in their lawsuit against the N.C. Department of Transportation and the Federal Highway Administration could potentially dead-end the proposed $900-million Garden Parkway toll road project.

Chief U.S. District Judge James Dever signed the order March 13, granting summary judgment to the Catawba Riverkeeper Foundation and Clean Air Carolina, two groups that sued the transportation department in 2012 to halt construction of the controversial project before it began.

The lawsuit was filed by the Southern Environmental Law Center on behalf of the two groups in August 2012. The project has been in the works for well over a decade.

In his ruling, writing for the U.S. District Court for the Eastern District of North Carolina, Dever noted that as the plaintiffs alleged, the DOT had used the same socioeconomic  data in analyzing traffic forecasts and direct and indirect effects of both alternatives —“build” and “no build” — in its federally required environmental impact statement. In essence, the option outlined under the “no build” scenario was based on data that assumed the parkway had been constructed.

Large projects that are federally funded are required under the National Environmental Policy Act (NEPA) and Administrative Procedures Act (APA) to be assessed, in part, on their environmental impact. The agencies responsible for the projects must investigate the impacts of their proposals on the environment, economic development, land use and other areas, and weigh them against various optional approaches, including not building the project.

“…[D]efendants violated NEPA and the APA by using the same set of socioeconomic data that assumed construction of the Garden Parkway to assess the environmental impacts of the Build and No Build alternatives,” Dever wrote. “In North Carolina Wildlife Federation, the Fourth Circuit strongly suggested that assuming the construction of the proposed project when analyzing the No Build baseline was clear error.”

In that case, the 4th U.S. Circuit Court of Appeals in May 2012 overturned a lower court ruling in a similar claim, this one involving the construction of a Union County bypass around the city of Monroe. The appeals court said the agencies violated NEPA by failing to disclose flawed underlying assumptions and “falsely” responded to public concerns about the data used.

Between 2002 and 2004, records show, the defendants in the Garden Parkway case studied six alternatives to building the parkway, including mass transit and improving existing roadways. In October 2004, the defendants outlined two “critical basic elements” of the parkway’s purpose: to improve mobility from east to west and to improve the flow of traffic on Interstate 85 and U.S. 29/74.

Modeling regional travel demand in 2025, the DOT determined that a “new location freeway” would better serve those needs than repairing already existing roads. By July 2005, a merger team consisting of the defendants and other agencies tasked with evaluating the options had excluded from consideration all non-new location alternatives.

The North Carolina Turnpike Authority, created in 2002 to study and develop design work on at least nine projects, published in 2009 a draft environmental impact statement. The report contained 12 new-location alternatives and the “no build” alternative; forecasted traffic demand and distribution; and assessed “potential indirect and cumulative land use changes and environmental effects associated with” the alternatives.

To forecast travel demands, according to court documents, the defendants relied on socioeconomic data in the Metrolina Regional Model, which assumed the construction of the Garden Parkway.

Based on this, the defendants concluded that each of the new-location alternatives offered high or moderate potential to improve mobility and connectivity in Gaston and Mecklenburg counties and high or moderate potential to lead to accelerated growth and to contribute to changing land use.

Opponents say there is no evidence to show that the parkway would ease congestion, increase economic development or otherwise benefit anyone except those who bought land around proposed construction sites.

The “build” forecast indicated that building the parkway would add 3,700 additional households and take away 300  jobs—assumed to be pushed into York County, South Carolina—when compared with the “no build” option.

Under the “no build” option, households would increase by 42,200 and jobs by 33,100, according to the study.

In  the 4th Circuit case, North Carolina Wildlife Federation v. North Carolina Department of Transportation, plaintiffs NCWF, Clean Air Carolina and Yadkin Riverkeeper alleged that the processes the DOT and the Federal Highway Administration used to approve the 20-mile Monroe Connector Bypass violated the NEPA by failing to analyze the environmental impacts of the Connector, conducting a flawed analysis of the alternatives and presenting false and misleading information to other agencies and to the public.

While the district court granted summary judgment to the agencies, the appeals court vacated and remanded that decision.

“Because the Agencies failed to disclose critical assumptions underlying their decision to build the road and instead provided the public with incorrect information, they did indeed violate NEPA,” Circuit Judge Diana Motz wrote in the opinion.

And not only did the court find that the agencies confused “no build” and “build” scenarios, making it impossible to accurately isolate and assess the impacts of the Monroe Bypass,  “they refused to acknowledge their error to the public and maintained that the ‘no build’ baseline did not assume the existence of the Monroe Connector until litigation actually began,” Nora Bennani wrote in the South Carolina Law Review.

“The agencies asserted that the admission of their mistake during litigation cured the missteps previously made, an assertion the Fourth Circuit did not find compelling.”

The agencies submitted a supplemental assessment last year, which is also being challenged by the environmental groups. An attorney for SELC, Kym Hunter, said they expect to complete briefing for summary judgement by May 1. That case is before Dever, also.

In June 2012, the North Carolina General Assembly continued to not provide funds to the Garden Parkway after advisement from DOT that they expected lawsuits would further delay the project.

Legislators stripped earmarked funding for the project in 2013, requiring it to be vetted through a new scoring process. Gov. Pat McCrory created a ranking system to prioritize transportation spending and the Garden Parkway ranks 175th of 399 projects ranked by the DOT, reports show.

The SELC called its ranking “abysmal.”

Hunter said the data “trick” is commonly used by DOT and “both overstates the need for the road and understates its destructive impact.”

“Indeed, the same exact practice was used in the environmental review of the equally controversial Monroe Bypass,” she said.

June Blotnick, executive director of Clean Air Carolina, said her organization is concerned about the region’s air quality, which she said is finally to a point where it is “close to meeting truly health-based standards.”

“The Garden Parkway and other major highways planned for our region will jeopardize our federal air quality attainment status and threaten the health of all our residents,” she said.

Rick Gaskins, executive director of the Catawba Riverkeeper Foundation, said he believes Dever’s ruling puts an end to the “destructive project” he said would negatively impact Lake Wylie.

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