Don’t believe everything you read, so they say.
And in this case, it’s true.
If you have read that the U.S. Court Appeals for the Fourth Circuit “overturned” the lawsuit brought by environmental groups against state and federal agencies over their plan to replace the aging Herbert C. Bonner Bridge, don’t believe it.
Yesterday, folks on the Outer Banks were scrambling to make sense of the news reports on Wednesday’s decision.
They were trying to figure out what the opinion really means for going forward with the project so fervently that you would have thought their lives depended on it.
And one of these days, they might.
Anyway, news reports in almost every media I checked Wednesday and yesterday referred to the decision being “overturned” — in either the headline or at the very beginning of the article.
The first thing you should understand about the Appeals Court decision is that it did not overturn a lower court decision in a lawsuit filed by environmental groups over the decision by N.C. Department of Transportation and the Federal Highway administration to replace the bridge.
You have to read only to Page 4 of the 57-page decision to figure that out.
On Page 4, the appeals judges say that they “affirm the district court’s determination that Defendants complied with NEPA, reverse the district court’s determination that a special exemption frees Defendants from complying with Section 4(f), and remand for further proceedings.”
In this case, the Southern Environmental Law Center, on behalf of its clients, Defenders of Wildlife and the National Wildlife Refuge Association, sued DOT and FHWA in 2011, challenging their replacement decision.
The state and federal agency chosen alternative on the project is Parallel Bridge Corridor with an N.C. 12 Transportation Management Plan, which would use a phased approach to address the hotspots on Highway 12 through Pea Island National Wildlife Refuge.
The environmental groups think that the agencies should build a 17.5 mile bridge in the Pamlico Sound that bypasses the refuge. The state claims that the parallel bridge is too expensive to build.
The Cape Hatteras Electric Cooperative was allowed to join as a defendant-intervenor because the environmental groups? preferred alternative ? the 17.5 bridge ? would require prohibitively expensive transmission lines under the bridge.
In September 2013, U.S. District Court Judge Louise Flanagan ruled in favor of the state and federal defendants. In October 2013, SELC appealed her decision, and in May, a three-judge panel of the Court of Appeal heard arguments at a hearing.
The part of Flanagan’s decision that the Appeals Court affirmed deals with the issue of whether the state and federal agencies complied with the National Environmental Policy Act in its Environmental Impact Statement, choosing its preferred alternative, and its Record of Decision.
The environmental groups also claimed that the agencies illegally “segmented” the project in its chosen phased approach to problems with Highway 12.
Flanagan ruled that the agencies did comply with NEPA and did not illegally segment the project, and the Appeals Court agreed with her.
This issue is the heart of the decision, the “critical” issue. The Appeals Court deals with the issue in 46 pages of its 57-page decision.
And the fact that two federal courts have now ruled that DOT met the requirements of NEPA may well help decide a related legal squabble over a state-issued Major CAMA Permit to replace the bridge.
SELC is also challenging that permit, and an administrative hearing on that permit is scheduled for October. The challenge is largely based on whether the environmental requirements were met.
The Appeals Court overturned a portion of Flanagan’s ruling about Section 4(f) of the Transportation Act of 1966 — specifically it overturned Flanagan’s ruling that the agencies qualified for a joint planning exception to preparing a 4(f) evaluation.
Section 4(f) requires that the federal government prepare a special analysis of transportation projects that require the use of federal land or a historic site. In this case, the project would require the use of about 4 acres of the wildlife refuge land at the southern terminus of the bridge.
The agencies must examine all alternatives for the project and show that the project will not have a negative effect on the refuge and its wildlife — or that its chosen alternative is the least environmentally damaging alternative.
The agencies would be exempt if they can show that the transportation corridor and the refuge were planned at the same time.
Flanagan ruled that the agencies proved their point and got the exception. The Appeals Court overturned that part of the ruling, saying that the agencies couldn’t qualify for an exception because they had not produced enough evidence to show they did.
They remanded the case back to Flanagan for further proceedings and instructed her to examine the record to determine if the planning exception applies.
Even though they claimed that they qualified for the exception, the agencies did produce a Section 4(f) evaluation of the project that said the preferred alternative was the least environmentally damaging alternative.
In its decision, the Appeals Court said it vacated Flanagan’s analysis of the Section 4(f) evaluation that was written and instructed her to follow the legal framework set forth in the decision and engage in the “requisite thorough, probing, and indepth review” to make sure the agencies comply with Section 4(f).
In essence, the higher court instructed Flanagan to review the part of her decision that deals with Section 4(f).
This hardly constitutes “overturning” the lower court decision.
The Department of Transportation, Dare County, and the Cape Hatteras Electric Cooperative are all encouraged by the ruling.
Bobby Outten, Dare County manager and attorney, said that meeting NEPA requirements are a “big, big chunk” of projects such as the bridge replacement.
Outten said that the 4(f) part of the higher court ruling was “confusing.”
“But the issue is narrowed down to one thing,” he said. “And they didn’t say, ‘You can’t build the bridge.'”
The Southern Environmental Law Center is also pleased. It says so in two pages of its usual “spin” that it calls a media release.
The release says the Appeals Court ruled that the agencies “have a duty to provide and disclose to the public a long-term plan that analyzes the impacts of the transportation route” through Pea Island.
The release says in part:
“The transportation agencies must minimize harm to the refuge and fully assess alternative solutions to NCDOT?s current plan to build and maintain a patchwork of bridges and highways in the Atlantic Ocean?s tidal zone and surf for the next 50 years. The decision by the appeals court reverses the decision of the U.S. District Court for the Eastern District of North Carolina and returns the case for reconsideration consistent with the appellate court ruling.”
SELC ignores the facts that NCDOT and FHWA have fully assessed and disclosed to the public their plan. It’s called the Parallel Bridge Corridor with an N.C. 12 Transportation Management Plan.
SELC and its clients no doubt think they should get a pat on the back for stepping in to protect what they call “national treasures,” such as Pea Island Refuge.
Pea Island is a treasure, and it is a beautiful part of Hatteras Island, appreciated and loved by both islands and visitors.
But it is not the natural, pristine area that SELC and clients would have you believe. It has been manipulated by man ever since it was established, beginning with the dunes that were built in the ’30s by the Civilian Conservation Corps.
This is from a blog I wrote about Pea Island in 2011:
“In the 1930s, The Civilian Conservation Corps built dunes and dikes in the refuge. In the late ?50s and early ?60s, the U.S. Fish and Wildlife Service constructed three impoundments to enhance habitat quality. These ‘ponds’ with their dike system are carefully managed by Fish and Wildlife and are periodically drained. The service also conducts periodic burns in the refuge to help maintain the habitat.”
Also, the refuge has managed to attract hundreds of species of birds and other wildlife despite the fact that it has been a transportation corridor since its inception. In the beginning, it had a sand road and it’s had a paved road running through it since the 1950s. The road requires regular maintenance and has already been moved west several times. One bridge is under construction at an inlet cut by Hurricane Irene in 2011 and another is planned in northern Rodanthe — with the blessing of the U.S. Fish & Wildlife Service.
The environmental groups’ determination to stop the plan to replace the bridge will mean further delays in replacing a decrepit structure that is long past its useful life.
At a cost of millions of dollars, DOT manages to keep it safe for the traveling public. But the fact remains that time has run out for the Bonner Bridge.
Now, Judge Flanagan will review her decision and decide if she can follow the higher court’s instructions with the information she already has in the case record — which runs thousands of pages — or if she needs more information. It’s her choice.
And, then, of course, SELC will have the opportunity for continued posturing with another appeal.
If that happens, we hope it will take less time than it has in the past.
North Carolina Secretary of Transportation Tony Tata said yesterday that he hopes that, after two court rulings, SELC and its clients might indicate “some willingness to negotiate” when it comes to this “critical lifeline for the citizens of the Outer Banks.”
Also, Board of Transportation Chairman Ned Curran added that he is willing to meet with the boards of directors of Defenders of Wildlife and the National Wildlife Refuge Association.
“I will go anywhere, anytime to meet with them to try to bring some stability back to that area — from an environmental perspective and from a human perspective.”
We doubt that SELC or its clients are interested in dropping the case or negotiating anything. However, I wouldn’t be at all surprised if they try to take their case all the way to the U.S. Supreme Court, which probably wouldn’t agree to hear it.
Meanwhile, the human perspective is what gets lost in this legal fight and in the reporting on what decisions mean and how much longer it will take to reach an end to it all.
Chairman Curran summed it up best at yesterday’s Board of Transportation meeting, and we will let him have the last word here.
“Football season is just a few weeks away and when State beats Carolina or vice-versa — just trying to be balanced here — we all have high five’s and chest-beatings and express (that) we’ve beat you. Those are fun sentiments when it comes to football, but when it comes to elements of court decisions and it comes to people, those are not the kind of sentiments we want to see from anybody.
“So everyone goes to the corner, thinks about legal strategies and perhaps lost in all that are the people who face the very real uncertainties, (such as) last year when we had to close the bridge for safety concerns and their lives were disrupted and once again we are reminded how vital a transportation network is — in this case, a bridge. People had to get to chemotherapy treatments, to doctors’ appointments, get to jobs, to day cares. (The trip) went from minutes to hours. That’s the fresh uncertainty they face again….
“What we’re trying to do here is to protect the environment and protect the lives of people that are there. It is vitally important, no matter what side of the issue, you are on.”
FOR MORE INFORMATION
Click here to read the U.S. Court of Appeals ruling.
Click here to read the ruling of U.S. District Court Judge Louise Flanagan.
Click here to read the entire Southern Environmental Law Center media release.
