S OUTHERN E NVIRONMENTAL L AW C ENTER Telephone 919-967-1450 601 WEST ROSEMARY STREET, SUITE 220 Facsimile 919-929-9421 CHAPEL HILL, NC 27516-2356 January 6, 2014 VIA E-MAIL AND FEDEX Jennifer Harris North Carolina Department of Transportation 1 South Wilmington Street Raleigh, NC 27601 [email protected] RE: Monroe Connector/Bypass: Draft Supplemental Environmental Impact Statement Dear Ms. Harris: On behalf of the North Carolina Wildlife Federation, Clean Air Carolina and the Yadkin Riverkeeper, the Southern Environmental Law Center (“SELC”) submits the attached comments on the Draft Supplemental Final Environmental Impact Statement (“DSFEIS”) for the Monroe Connector/Bypass. In addition, we submit a report by transportation expert David T. Hartgen, which reviews NCDOT’s traffic forecasts for the project.1 Dr. Hartgen concludes that the forecasts are inadequate to support decisionmaking. The comments below identify severe deficiencies in the DSFEIS which call into question the advisability of proceeding further with the $900 million Bypass. The key shortcomings include the following: New Trends: Much has changed since NCDOT first began to study the Monroe Connector/ Bypass in 2007. But the DSFEIS, which appears to be written only to justify a new highway, disregards any new information suggesting the merits of a different approach. • Travel speeds along the U.S. 74 corridor have improved dramatically in the past five years, increasing by 10-15 mph in that short time span. • Traffic volumes in the corridor have remained flat for the past decade. • The Bypass, which was originally anticipated to save commuters travelling its full length 29-32 minutes, is now estimated to save a mere 8-12 minutes in the opening year. • Growth in previously fast-growing Union County has slowed significantly, particularly in the Bypass study area. • Transportation resources have become increasingly scarce. 1 David T. Hartgen, Review of Traffic Forecasting: Monroe Connector/Bypass Draft Supplemental Final EIS, November 2013 (Dec. 26, 2013) [hereinafter “Hartgen Report 2013”], Attachment 1. Charlottesville • Chapel Hill • Atlanta • Asheville • Birmingham • Charleston • Nashville • Richmond • Washington, DC • The cost of the project has skyrocketed to almost $900 million. • A principal contractor for the project has been indicted for fraud in highway contracting and has been suspended from bidding on federal projects. These new trends all suggest that an expensive new-location toll-highway may no longer be the best solution for Union County or the state of North Carolina. Alternatives: Travel in Union County still needs improvement, and fortunately there are solutions available. Yet once more the DSFEIS rejects all cost-effective alternatives out of hand and looks only at the costly, destructive Bypass. • Transportation expert David T. Hartgen has declared the traffic forecasts in the DSFEIS inadequate to support decisionmaking. • The past five years have demonstrated that low-cost, small-scale improvements can result in dramatic improvements to travel speeds on U.S. 74. But the DSFEIS once more fails to consider how such improvements may be expanded to improve travel in Union County for a fraction of the cost of the Bypass. • The DSFEIS fails to look at how a suite of alternatives including upgrades to U.S. 74, a parallel road network and expanded transit and freight rail services, might work together to improve mobility in the corridor. • The analysis of alternatives in the DSFEIS is based on outdated and overstated traffic data which manufactures the conclusion that the Bypass is inevitable. Impacts: After being chastised by the United States Court of Appeals for the Fourth Circuit for presenting the public with inaccurate information, NCDOT has finally clarified its methodologies, and the full extent of its flawed analysis is now laid bare. • The “No-Build” analysis in the DSFEIS is based on an assumption that disregards entirely the constraining impact a congested U.S. 74 might have on future growth, thus dramatically understates the level of growth attributable to increased highway capacity, such as the Monroe Bypass. • The DSFEIS continues to assert that minimal growth will result from the Bypass, despite statements at all levels of government, including from NCDOT, to the contrary. • The DSFEIS fails to consider fully how growth may be redistributed, and how a shift in growth away from the Charlotte metro area may impact air quality. Disregard for the Public Process: Despite the clear mandate from the United States Court of Appeals for the Fourth Circuit that NCDOT must use the NEPA process to accurately and transparently inform the public, NCDOT has continued to foster a climate of misinformation. • NCDOT paid a contractor for the Bypass to create a fake grassroots group and spread information about the Bypass that was entirely contrary to the findings 2 in the EIS. The contractor also hosted a pro-Bypass BBQ at the site of the public NEPA hearing, again espousing misinformation. • NCDOT knows that there is substantial confusion about the purpose of the Bypass, with many local residents expecting it to improve congestion on U.S. 74 and promote economic growth. Yet the Department has done nothing to publicly clarify the true project’s purpose and anticipated impact. I. INTRODUCTION The National Environmental Policy Act (“NEPA”) is the nation’s keystone environmental law designed to ensure careful decision making and a rational consideration of impacts and alternatives. It is the foundation of “a national policy of protecting and promoting environmental quality.” Hughes River Watershed Conservancy v. Glickman, 81 F.3d 437, 443 (4th Cir. 1996). For major federal actions that will significantly impact the environment, NEPA requires that agencies develop an Environmental Impact Statement (“EIS”). Because NCDOT’s initial EIS was found to be inadequate, the Department has prepared this Supplemental statement, the DSFEIS. Regulations from the Council on Environmental Quality provide that a Supplemental EIS shall be prepared, circulated and filed “in the same fashion” as a draft and final statement.” 40 C.F.R. § 1502.9 (c)(4). As such, the Supplemental Statement should follow all standard NEPA requirements starting with the consideration of the project’s purpose and need, a thorough analysis of alternative solutions to meet that need, and an analysis of the environmental impacts of project alternatives. See id. NCDOT’s SDFEIS for the Monroe Bypass fails at every step. II. STATEMENT OF PURPOSE AND NEED A properly targeted and well-defined Statement of Purpose and Need is paramount to NEPA, as it guides the agencies’ scope of review. 40 C.F.R. § 1502.13. The United States Court of Appeals for the Fourth Circuit has recognized this principle, for example noting that “[o]nly alternatives that accomplish the purposes of the proposed action are considered reasonable, and only reasonable alternatives require detailed study. So how the agency defines the purpose of the proposed action sets the contours for its exploration of available alternatives.” Webster v. United States Dep’t of Agric., 685 F.3d 411, 422 (4th Cir. 2012). The stated purposes of the Monroe Connector/Bypass in the DSFEIS remain unchanged from the previous EIS, and are: 1) To construct a facility that allows for safe, reliable, high-speed regional travel in the U.S. 74 Corridor between I-485 in Mecklenburg County and the Town of Marshville in Union County, in a manner consistent with the North Carolina Strategic Highway Corridors Vision Plan for U.S. 74 and the designation of U.S. 74 on the North Carolina Intrastate System. 3 2) Improve mobility in the U.S. 74 corridor within the project study area, while maintaining access to properties along existing U.S. 74.2 A. The Statement of Purpose and Need Is Improperly Narrow The Statement of Purpose and Need in the DSFEIS is overly narrow and written in such a way that it precludes meaningful consideration of a full range of alternatives, per the requirements of NEPA. 40 C.F.R. § 1502.13. Because the Statement of Purpose and Need forms the basis upon which to compare alternatives, an agency is not permitted “to contrive a purpose so slender as to define competing ‘reasonable alternatives’ out of consideration.” Simmons v. US Army Corps of Eng’rs, 120 F.3d 664, 666 (7th Cir. 1997). Here, NCDOT has done just that and, as a result, the whole NEPA document is rendered both meaningless and unlawful. NCDOT’s Statement of Purpose and Need includes so many specific elements there is no chance that any option other than the predetermined new-location bypass could meet the requirements. The project must apparently allow for “high-speed” travel, which is again specifically defined as being consistently over 50 mph.3 The project must stretch from one very specific location (I-485) to another specific location (Marshville).4 And the project must maintain access to properties along U.S. 74.5 Each of these elements is arbitrary, and in combination they form a statement that is “so unreasonably narrow that only one alternative . [could ever] accomplish the goals of the agency’s action,” rendering the EIS a “foreordained formality.” Simmons 120 F.3d at 666; see also Webster, 685 F.3d at 422. The “high-speed” element, with its very specific speed limit of 50 mph, is noted to have its origin in the Strategic Highway Corridor (“SHC”) Vision Plan.6 This external planning product was not subject the public participation requirements of NEPA, and therefore cannot be transferred into the NEPA process without opportunity for public comment and consideration.7 Without the SHC document, it becomes clear that the requirement of 50 mph is an artifice designed to constrain alternatives to only those that involve a new-location highway. The corridor is currently operating at an average speed of 44 mph, a vast improvement over past years, and significant additional improvements are planned and funded for next year.