Catawba Riverkeeper Foundation v. North Carolina Department of Transportation, No. 15-2285 (4th Cir. 2016)
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At issue in this case was the proposed construction of a twenty-two-mile toll road in North Carolina called the Gaston East-West Connector. Two Conservation Groups brought suit against the North Carolina Department of Transportation (NCDOT), the Federal Highway Administration (collectively, the Agencies), and others, challenging the environmental analysis conducted for the Connector. The district court granted summary judgment for the Conservation Groups, concluding that the alternatives analysis underlying the Connector violated National Environmental Policy Act and the Administrative Procedure Act and that the Agencies failed adequately to assess and disclose the Connector’s environmental impacts. NCDOT appealed. Before the district court ruled, however, the Connector was stripped of its funding, and the statute that expressly authorized its construction was repealed. Following the district court’s ruling, the Connector was removed from local and state transportation plans. The Fourth District vacated the district court’s judgment and remanded with instructions that the district court dismiss the action, holding that the appeal was moot where the Connector was no longer viable.
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PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-2285 CATAWBA RIVERKEEPER FOUNDATION; CLEAN AIR CAROLINA, Plaintiffs − Appellees, v. 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, official capacity as Division Administrator of FHWA, in his Defendants. Appeal 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) Argued: September 21, 2016 Decided: December 13, 2016 Before DUNCAN, KEENAN, and DIAZ, Circuit Judges. Vacated and remanded with instructions by published opinion. Judge Diaz wrote the opinion, in which Judge Duncan and Judge Keenan joined. ARGUED: Scott Thomas Slusser, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellants. Kimberley Hunter, SOUTHERN ENVIRONMENTAL LAW CENTER, Chapel Hill, North Carolina, for Appellees. ON BRIEF: Roy Cooper, Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellants. Ramona H. McGee, SOUTHERN ENVIRONMENTAL LAW CENTER, Chapel Hill, North Carolina, for Appellees. 2 DIAZ, Circuit Judge: This Gaston appeal involves Connector, 1 East-West Carolina the spanning from proposed a 22-mile southeast construction toll Gaston of the road in North 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 (“NCDOT”), the representing analysis the North Federal those conducted Carolina Highway agencies, for the Department of Administration, challenging Connector. the The Transportation and officials environmental district court granted the Conservation Groups’ motion for summary judgment. Before 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, Connector is no longer viable. NCDOT represented that the In light of these developments, we conclude that this appeal is moot and accordingly vacate the district court’s judgment. 1 The Connector is known locally as the Garden Parkway. 3 I. A. Local 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, building freeway” NCDOT more “improv[ing] Gastonia determined effectively east-west and that the addressed transportation Charlotte a the “new location goals mobility metropolitan . . of . area” (1) between and (2) “establish[ing] direct access between the rapidly growing area of southeast Gaston County and west Mecklenburg County.” J.A. 723. As (“NEPA”), Highway assessing required 42 by U.S.C. the § Administration the National 4321, et Environmental seq., (collectively, environmental impact 2 of NCDOT the the and Policy the “Agencies”) project. 2 Act Federal began In 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 (Continued) 4 meantime, the Connector a North North Carolina candidate Carolina General project Turnpike Assembly subject Authority. to the N.C. designated control Gen. Stat. the of § the 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 current State prior to Transportation construction” Improvement and “shown Plan.” in Id. the § 136- 89.183(a)(2) (2006). In April 2009, the Agencies published for public review and comment a Connector. draft Environmental Impact Statement for the 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 preferable alternative,’ and provides information on the adopted means to avoid, minimize, and compensate for environmental impacts.” J.A. 1480. 5 transportation facilities would operate with projected future traffic volumes and a “no build” baseline forecast. To develop the traffic forecasts, the Agencies relied on data derived planning of from socioeconomic study Statement Cumulative that forecasts assumed prepared by area construction of the The Agencies superimposed each alternative onto this further Impact socioeconomic organizations Connector. set from projections on also Effects this and basis. contained (“ICE”) The a report, eliminated draft qualitative describing alternatives Environmental Indirect the and Connector’s estimated effects on growth and land use, wildlife habitat, and water resources in the geographic area. In response to requests from environmental advocates and other agencies, the Agencies also published a quantitative ICE report that analyzed future land-use change. a “build” forecast and then employed a They first created “gravity model” to reallocate the growth effects to create the “no build” forecast baseline. 3 The Agencies determined that construction of the Connector would result in 3,700 additional households and 300 3 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. 2350. 6 fewer jobs in the study area when compared to the “no build” forecast. The 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 February 2012, Record of Assembly, the Federal Decision, “environmentally and other Highway identifying funding sources. Administration issued Connector a as the alternative . . . because preferable the In it represents the best overall balanced minimization of all impacts analyzed.” J.A. 3747. B. The Conservation Groups participated in the NEPA process for the meetings Connector, to voice submitting their comments concerns about and attending the integrity environmental analysis conducted by the Agencies. public of the Following our decision in North Carolina Wildlife Federation v. North Carolina Department of Transportation, 677 F.3d 596 (4th Cir. 2012), 4 the 4 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 (Continued) 7 Groups urged the Federal Highway Administration to rescind the Connector’s Record Environmental of Impact Decision and Statement. prepare The a supplemental Federal Highway Administration declined to do so. The Western Conservation District of Groups thereafter North filed Carolina suit pursuant in the 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. While 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 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 project.” Id. 8 congestion. N.C. Gen. Stat. § 136-189.11. The Connector received a low score under this new funding formula, ranking below 1,200th place. that portion of the The General Assembly subsequently repealed 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. § 136176(b2)). Given 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. The 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 9 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. 5 Following the district court’s ruling, the last domino fell for the Connector when it was removed from local and state transportation plans, 6 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. II. NCDOT 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 granting summary judgment to the Conservation Groups. order Because we agree with NCDOT that developments subsequent to the district 5 The Court declined to grant injunctive relief, finding it unnecessary given its ruling. 6 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. 10 court’s ruling render the appeal moot, we do not address the merits of the district court’s ruling. Article III limits the jurisdiction of federal courts to cases and controversies. doctrine of mootness U.S. Const. art. III, § 2, cl.1. originates ‘controversy’ language.” in Article III's “The ‘case’ or Incumaa v. Ozmint, 507 F.3d 281, 286 (4th Cir. 2007) (quoting DaimlerChrysler 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 appellate disposition.” of litigation, to the moment of final Bahnmiller v. Derwinski, 923 F.2d 1085, 1088 (4th Cir. 1991) (internal quotation marks omitted). “[E]ven if a plaintiff has standing when he or she files a complaint, subsequent events can moot the claim.” Delia, 709 F.3d 307, 316 (4th Cir. 2013). Pashby v. “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 (internal quotation marks omitted). in the outcome.” Id. 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). 11 NCDOT contends that this case became moot when local and state planners respective Connector the transportation “no construction appeal.” removed longer regardless Connector improvement eligible of the plans, for of the from their rendering federal merits Appellants’ Br. at 32–33. project the funding NEPA issue or on At oral argument, counsel for NCDOT represented that “the [Record of Decision] is really a nullity,” and further that “[t]his Project is defunct. longer moving forward.” It’s no See also Appellants’ Br. at 26 (“The Project . . . is no longer viable”). In 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. As 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 Connector into and the state various planners local 12 must and reincorporate state the transportation improvement plans, and the state legislature about $900 million to the project. events come to pass, clearing must reallocate Moreover, even if these 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. Under 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)). the real world,” Conservation NEPA “[W]e may only decide cases that matter in and Groups analysis, as because deficient speculative harm. such, or the can offer Connector not, pose no and only relief its to the underlying hypothetical and Norfolk, 608 F.3d at 161 (internal quotation marks omitted); see also Preiser, 422 U.S. at 402 (a request for 13 declaratory relief survives a mootness challenge where the facts “show that there is a substantial controversy, between parties having adverse reality to legal warrant (internal interests, the of of issuance quotation marks sufficient a immediacy declaratory omitted); and judgment”) 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 future.”). In sum, 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. III. We turn now court’s judgment. to whether we should vacate the district The Conservation Groups contend that even if the case is moot, vacatur is improper because the circumstances that deprive us product of NCDOT’s lobbying of subject “happenstance,” and matter but decisions. jurisdiction rather In the other are direct words, not result the the of Groups argue that NCDOT contributed to the Connector’s demise, mooting this case. But as we explain, we do not think it proper to 14 impute the actions of state legislators and local planners to NCDOT. Accordingly, we shall vacate the district court’s judgment. A. Our “customary practice when a case is rendered moot on appeal is to judgment.” vacate the moot aspects Norfolk, 608 F.3d at 161. of the lower court's In such circumstances, the equitable remedy of vacatur “‘clears the path for future relitigation of the issues between the parties.’” Alvarez v. Smith, States 558 U.S. 87, 94 (2009) (quoting United v. Munsingwear, 340 U.S. 36, 40 (1950)). The 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. P'ship, See 513 settlement U.S. does U.S. 18, not 29 Bancorp (1994) justify Mortg. Co. (“[M]ootness vacatur of a v. by Bonner Mall reason judgment of 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 deliberate not appropriate actions controversy.’” have . . rendered . when moot the an losing party's otherwise live United States v. Springer, 715 F.3d 535, 541 (4th Cir. 2013) (quoting Remus Joint Venture v. McAnally, 116 15 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. However, 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 Cir. Thus, (4th when appeal, determining our entirely, decision by interest.” 2000) the (quoting the is twin Bancorp, propriety “informed 513 of vacatur almost considerations U.S. at in entirely, of fault and 25)). a moot if not public Id. at 118. B. The Conservation inappropriate because Groups NCDOT contend “contributed that to the vacatur is mootness of which they now complain,” by lobbying the General Assembly for the enactment formally of approving the the new transportation Connector’s transportation improvement program. funding removal from statute the and state’s Appellees’ Br. at 30. We do not agree. We dispel first the Groups’ assertion that NCDOT’s support of transportation funding reform—characterized by the Groups as 16 an “intentional sufficient NCDOT. to Id. intercession impute the in the actions of legislative the General process”—is Assembly to 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. In Valero, the appellant corporation brought suit against various West Virginia constitutionality of certain provisions West enforcement. Virginia Id. permanent management Virginia The district court declared the provisions constitutionally a and the the Id. issued disposal of challenging pertaining and waste agencies, Code invalid to executive injunction regulation. prohibiting their Shortly after judgment was entered, the West Legislature revised the enjoined provisions, mooting the case and prompting the executive agencies to seek vacatur of the adverse decision. Id. On 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 state mooting executive the case, from officials, the holding actions that of the defendant “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). 17 As a result, we concluded that the principal consideration of “fault” Id. 7 counseled in favor of vacatur. Similarly, here, NCDOT, a state executive agency, separate entity from the North Carolina General Assembly. NCDOT lobbied transportation distinction, “caused” the funding nor the General does Assembly reform does it warrant Connector’s demise. in not the support alter See Chem. a That of this conclusion is the central that NCDOT 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 inquiry. Attributing parties rather than legislation the to actions the for of purposes a legislature of the legislature itself is vacatur to of third dubious legitimacy . . . .”). In sum, to the extent that the enactment of transportation funding reform helped to render this case moot, we view it as 7 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 vacatur”). 18 the consequence of actions Assembly, not NCDOT. of the North Carolina General 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 parties.”). We turn next to the Groups’ assertion that vacatur is inappropriate because NCDOT intentionally mooted the case when it approved the removal of the Connector transportation improvement program. with this argument: discretion over (1) planners which projects from the state’s Two points readily dispense at the to local level retain in their include 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. C. Finally, recognized we that consider “there judicial judgments.” is the a public interest. substantial public Valero, 211 F.3d at 118. 19 We have interest in This is because “[j]udicial precedents are presumptively correct and valuable to the legal community as a whole.” U.S. at 26). public Id. (quoting Bancorp, 513 In Bancorp, the Supreme Court’s concern for the 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.” U.S. at 25. vacatur in The Court reasoned that employing the remedy of that collateral 513 attack instance on the constituted judgment” “a that refined would form “disturb of the orderly operation of the federal judicial system,” and therefore did not serve the public interest. Id. at 27. This 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 events beyond leaving depart the the from that general principle parties’ control have district court’s decision here. mooted Because this undisturbed appeal, would not serve the public interest. IV. For the reasons given, we vacate the district court’s judgment and remand the case with instructions that the district 20 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.”). VACATED AND REMANDED WITH INSTRUCTIONS 21
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