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Defenders of Wildlife v. North Carolina Department of Transportation

ELR Citation: 44 ELR 20181
Nos. 13-2215, (4th Cir., 08/06/2014)

The Fourth Circuit affirmed a lower court's decision that FHwA and North Carolina complied with NEPA in their approval of a bridge and highway improvement project between the mainland and the Outer Banks barrier islands, but reversed that court's determination that the defendants were exempt from complying with §4(f) of the Department of Transportation Act of 1966 (DOT Act). Despite environmental groups' arguments to the contrary, the defendants did not engage in unlawful segmentation with respect to the five studied parallel bridge alternatives in violation of NEPA. The defendants fully analyzed and disclosed the environmental impacts associated with the alternatives, and they conducted a full, site-specific analysis. Thus, their decision to implement the project one phase at a time does not violate NEPA. But the lower court erred in ruling that the project was exempt from DOT Act §4(f)’s substantive requirements under the "joint planning exception." For a transportation facility that uses §4(f) property to meet the exception, the property for the transportation facility must be “formally reserved . . . before or at the same time” as the establishment of the §4(f) property and they must be concurrently or jointly planned or developed. Here, however, the highway had not yet been formally reserved, and it was not jointly or concurrently planned when the §4(f) property at issue in this case—a wildlife refuge—was created. The joint planning exception, therefore, does not apply.