RALEIGH — The N.C. Department of Transportation announced Tuesday, May 22, that it will ask a federal appeals court to rehear its case regarding the Monroe Bypass.
“The petition for rehearing seeks a review by the full circuit court of the legal analysis arising out of technical data and facts that the state believes the higher court panel misunderstood,” the NCDOT said in a news release.
The court will decide whether it will rehear this case.
Until a decision is reached, the N.C. Turnpike Authority will suspend most of its work on the project “until it is legally prudent to move forward,” according to the release. That move also includes a review of the issues detailed in the court’s opinion and determining what, if any, additional environmental studies might be necessary, the release said.
Earlier this month, the Fourth Circuit Court of Appeals ruled the NCDOT and other agencies violated federal policy “Because the agencies failed to disclose critical assumptions underlying their decision to build the road and instead provided the public with incorrect information, they did indeed violate NEPA (National Environmental Protection Act). … The agencies failed to take the required ‘hard look’ at environmental consequences.”
The lawsuit was brought against the NCDOT by the Southern Environmental Law Center on behalf of Clean Air Carolina, North Carolina Wildlife Federation and Yadkin Riverkeeper who argued NCDOT did the environmental impact study using incorrect comparisons and assumed the traffic projected for the bypass, once created, was already prevalent in the area, which they used in their study as the basis for the project’s necessity, opting to not further investigate other alternatives to a 20-mile toll road with nine interchanges stretching from U.S. 74 at I-485 to U.S. 74 in Marshville.
David Farren, the SELC attorney who took this case to trial, said this request for a rehearing is “likely much ado about nothing.”
He said it’s unlikely the NCDOT will be granted a rehearing because it does not meet any legal or practical criteria for reconsideration.
“It’s not a key issue of national law or policy or a case where courts have ruled an opposite way. It was a unanimous vote across party lines and so, both legally and practically, there’s virtually only a very small chance the court would hear this and even smaller chance they’d reverse their decisions,” Farren said.
And while the NCDOT waits to hear whether the court will rehear the case, Farren said the SELC will sit back and watch as they don’t have to respond to the request unless the court asks them to.
Farren said if anything, this request shows the NCDOT’s misunderstanding of the ruling, not the court’s misunderstanding of the case.
“There are signals that have come out from the NCDOT in press statements and so on that they’ve unfortunately failed to recognize what the court is saying,” Farren said. “So not only are they (making this request), but I understand they’re continuing to buy right-of-ways, paying interest on all those bonds and saying in press statements they don’t know if this means they have to do another environmental impact study, but that’s clear from the court’s opinion they have to. I’m disappointed those things are happening.”
He said rather than seeking a reconsideration, the NCDOT needs to start looking at less expensive alternatives.
“That’s the whole point of the law behind this lawsuit, to take an open and honest look at alternatives and impacts,” Farren said. “That’s what this federal law requires and so far all we’ve heard from the DOT is that it might delay the project, but that doesn’t comply with the letter of the law or standard of the law.”
For more information on the bypass, visit www.ncdot.gov/projects/monroeconnector.