The planned $725 million Monroe Connector-Bypass – the Charlotte region’s first modern toll road – is in doubt after a federal appeals court ruled Thursday in favor of environmental groups that had sued to stop construction.
The 4th U.S. Circuit Court of Appeals in Richmond, in an unanimous ruling, said the N.C. Department of Transportation and other agencies “failed to disclose critical assumptions … and instead provided the public with incorrect information.”
The DOT violated federal policy that requires detailed environmental impact analysis for new highways, the court found.
The state had planned to begin construction on the toll road later this year. Now the N.C. Turnpike Authority, an arm of the state DOT, may have to redo its environmental impact analysis, which could take months or years.
If a new environmental impact study is done, it’s possible the highway might not receive the permits needed to build.
“They are back to square one,” said David Farren, an attorney with the Southern Environmental Law Center in Chapel Hill, which sued to stop the highway on behalf of several environmental groups. “The court found fundamental flaws in their analysis. And they found they weren’t forthcoming with the public.”
The 20-mile road is designed as a bypass around congested U.S. 74 in Union County.
Supporters say it’s a much-needed way to connect Charlotte to the coast, and to alleviate traffic in one of the nation’s fastest-growing counties. The law center agrees there is a traffic problem, but believes the state could widen and improve U.S 74 to save money, causing less sprawl and environmental damage.
The state was required under federal law to complete a study comparing the impacts on traffic, employment, population and the environment of building the highway with what would happen if the toll road wasn’t build. That is known as a “build vs. no build” study.
Suit: Wrong data used
The Southern Environmental Law Center charged that the state didn’t do the study correctly. When doing its “no-build” analysis, the Law Center alleged the state used data showing the toll road had already been built.
The law center said that resulted in a “build vs. build” study, which showed minimal impacts from the highway. That made it easier to obtain required permits, including one from the U.S. Fish and Wildlife Service, which was concerned the toll road would jeopardize the Carolina heelsplitter mussel, a federally endangered species.
The DOT and Turnpike Authority later admitted some mistakes had been made, but argued its engineers had fixed them. Last fall, U.S. District Court Judge James Dever III sided with the state and federal government, saying the state made a “thorough” effort to comply with NEPA, the National Environmental Policy Act.
The state believed that gave it a green light to move forward with the highway.
But the appeals court reversed that decision – and did so with pointed language.
It said the state and federal study was flawed. In its opinion, it wrote the agencies “....incorrectly stated that the Monroe Connector was not factored into the ‘no build’ baseline.”
In addition, the appellate court noted that numerous skeptics – including the U.S. Fish and Wildlife Service – repeatedly asked the state and federal agencies whether the study was done correctly.
The court wrote: “...rather than take these opportunities to make a ‘candid acknowledgement’ of what they knew to be the truth, the agencies maintained that the ‘no build’ data did not include (the road).”
Carl Tobias, a University of Richmond School of Law professor, said he was surprised at the nature of the court’s ruling.
“It’s interesting how strongly the court reprimanded the agencies,” Tobias said.
Tobias noted that two judges of the three-member panel are conservative and were appointed by former president George W. Bush.
State: Road still planned
N.C. Transportation Secretary Gene Conti said in a statement that the ruling will cause delays, but doesn’t mean the project won’t happen.
“We hope to have a new plan and timeline developed and released to the public within the next few weeks,” he said.
The DOT could appeal to the U.S. Supreme Court. Tobias said he doesn’t believe the nation’s highest court would choose to hear an appeal.
Farren said earlier public records requests showed that the Turnpike Authority was aware it was using incorrect data and then tried to conceal it.
He said a law center attorney in 2010 asked Jennifer Harris, a Turnpike Authority engineer, whether the bypass was included in the no-build data.
Harris never wrote the attorney back. She did, however, forward the email to a colleague, with a one-line message. The email had a commonly used emoticon – a semi-colon and a parentheses – that looks like a wink.
Farren said he believes Thursday’s ruling means the state must redo its NEPA analysis, and that the federally required permits based on the previous analysis are now void. “If they do a valid impact analysis, (their ability to get) permits become questionable,” he said.
The state is also trying to build another toll road in the region, the Garden Parkway in Gaston County. The law center and skeptics have questioned whether the Turnpike Authority revised part of an environmental study that showed significant job losses in Gaston as a result of the highway, due to increased access to South Carolina.
Authority officials have denied that charge.
