In an important decision last week, the 4th Circuit Court of Appeals made clear just how high the hurdles are in the way of building highways in wildlife refuges. The decision in Defenders of Wildlife v. North Carolina DOT sent the Federal Highway Administration and the North Carolina DOT back to the drawing board in their efforts to find a solution to transportation problems on Hatteras Island.
After a multi-year planning process that reviewed multiple options, FHWA and NCDOT together decided on a plan to replace the Bonner Bridge, which connects the mainland to Hatteras Island. They punted on what to do about Route 12 on Hatteras Island south of the bridge.
Environmental groups sued, alleging violations of both NEPA and Section 4(f), which prohibits use of wildlife refuges (and certain similar resources) for roads unless:
there is no prudent and feasible alternative to using that land; and . . . the program or project includes all possible planning to minimize harm to the publicly owned land resulting from the use.
The environmental groups alleged that the agencies violated NEPA by segmenting the project. Since the new bridge would not solve the Hatteras problems and it was clear that the agencies intended to do something in the future on Route 12, the plaintiffs argued that the agencies could not split the decision. On this issue, the Court sided with the agencies. The agencies did not engage in improper segmentation because they fully analyzed the different options for Route 12; they simple deferred a decision as to which option to implement until a later date. The Court made clear that the agencies are limited to those options which have been fully analyzed.
The result was different on the Section 4(f) question. The district court ruled for the agencies on the ground that the project was exempt under the “joint planning exemption, which applies:
[w]hen a property is formally reserved for a future transportation facility before or at the same time a [Section 4(f) property] is established and concurrent or joint planning or development of the transportation facility and the Section 4(f) resource occurs.
However, the refuge was established in 1938 and the district court relied on evidence from the 1940s and 1950s to determine that the road had been reserved. The Appeals Court remanded for a determination whether evidence available in 1938 established joint planning. It was very clear, however, that the Court was extremely skeptical that the exemption applies.
The Court also noted that, assuming the exemption does not apply, the “no prudent and feasible alternative” and “all possible planning to minimize harm” requirements pose an extremely high barrier to building roads in refuges. In this case, based on the Court’s description of the record, there appear to be options outside the reserve that are feasible from an engineering perspective. To the Court, that will probably be enough to kill any option through the reserve.