Courts and Law

Heads in the sand over the Bonner Bridge

BonnerBridge_1

What started out last week as news of the temporary closure of the Bonner Bridge on the Outer Banks for claimed emergency repairs quickly morphed into partisan sniping, with GOP officials deflecting blame for the state’s decades-long delay in addressing environmental problems there by attacking environmentalists who’d filed a lawsuit over the bridge two years ago.

As part of what looked like an orchestrated effort to force the groups to abandon their lawsuit, Gov. Pat McCrory portrayed them as reckless and indifferent.

“Your lawsuits are standing in the way of progress for the people, the environment and the economy of Hatteras Island and Eastern North Carolina,” he wrote in a letter to the Southern Environmental Law Center and its clients, Defenders of Wildlife and the National Wildlife Refuge Association. “You and your organization are responsible for these delays and should consider yourself accountable to the people of Hatteras Island and the taxpayers of North Carolina.”

Leaders of the General Assembly, Sen. Phil Berger and Rep. Thom Tillis, called the lawsuit “the latest episode in their scheme to agitate the left and raise funds for an extreme, fringe agenda – this time, at the expense of Northeastern North Carolina’s economy.”

And state Department of Transportation secretary Anthony Tata got personal, depicting staff at the SELC as “ivory tower elitists” who “file lawsuits from air-conditioned offices in Chapel Hill.”

“They do so,” he added, “with their lattes and their contempt, and chuckle while the good people of the Outer Banks are fighting hard to scratch out a living here based on tourism and based on access.”

Though all that vitriol made for good copy, it did not deter the SELC or its clients, who went forward and filed their opening brief in the lawsuit, now pending in the 4th U.S. Circuit Court of Appeals in Richmond.  They are asking that court to overturn a September decision by U.S. District Judge Louise W. Flanagan allowing the state to go forward with its plan to build a replacement bridge parallel to the Bonner Bridge.

It’s not a bridge per se that they oppose, but rather the plan which the state is pushing – which they say does not address persistent environmental problems on the Outer Banks – and the process by which the state adopted that plan, which they argue has been less than transparent.

“After many years of trying in vain to find a solution that would both keep the road to an Oregon Inlet bridge open and satisfy the agencies that will issue or deny permits for the road portion of the project, NCDOT decided to circumvent the law by building an Oregon Inlet bridge without disclosing its plan to keep the road to the bridge open,” said Julia Youngman, an attorney with SELC representing the groups.

“Under federal law, NCDOT is not allowed to divide up the project to hide the problems that will make keeping the road to the bridge open virtually impossible – the public has a right to know what it’s in for, and NCDOT has a duty to make a decision that addresses the entire project.”

It’s not just the bridge

Bonner Bridge, which spans the Oregon Inlet (created by a hurricane years ago), enables residents and visitors in the southern Outer Banks to travel along the only road running through the barrier islands, NC-12, and cross over further north to the mainland.

The road itself runs through a particularly unstable portion of Hatteras Island, especially through the Pea Island National Wildlife Refuge, which starts at the northern tip of the island and ends 13 miles south at the town of Rodanthe.

Storms have forced the closure of NC-12 on several occasions, cutting off access to the Bonner Bridge. In recent years, Tropical Storm Ida shut down traffic near Rodanthe in 2009, as did Hurricane Irene in 2011 – causing the closure of the bridge for seven weeks.

In 2012, Hurricane Sandy again breached sections of NC-12 near Rodanthe, cutting off access to the bridge for another two months.

NCDOT has repeatedly recognized that the utility of the bridge depends on the road. And in 2003, the department, state and federal agencies and environmental groups reached agreement on the Pamlico Sound Alternative – a 17-mile causeway bridge that would bypass NC-12 in the troubled areas, spanning instead from Bodie Island, out into the Pamlico Sound and connecting back at Rodanthe. Construction was set to begin in 2006, with the new bridge opening in 2010.

But, according to the environmental groups, political pressure from local officials for a cheaper, shorter replacement bridge that would run parallel to Bonner Bridge caused the department to back away from the Pamlico Sound Alternative.

In late 2009 NCDOT set off in piecemeal fashion instead, agreeing to and getting approvals for just the parallel bridge, leaving improvements to NC-12 in the troubled areas to then undefined “later phases.”

The Department has since proposed the construction of two additional bridges in the shifting sands of the Refuge to overcome storm wash-out on NC-12 there, and is seeking separate government approval for those proposals.

It’s that segmentation – the divvying up of what once was a unified project to ensure access from Bodie Island to Rodanthe — that lies at the heart of the lawsuit now pending in the Fourth Circuit.

Building on shifting sand

Because the Refuge through which NC-12 runs is federal land, the state is required to comply with the National Environmental Policy Act when planning a project there.

That Act provides in part that states take a comprehensive approach to projects and make full disclosure, so that agencies and the public alike can assess both cost and environmental impact.

“Dividing a project violates the spirit of NEPA by obscuring the impacts and hindering the comparison of alternatives,” the groups argue in their brief, and courts have held that proceeding in that fashion violates the Act.

One obvious way in which that plays out is in evaluating costs of competing plans.

Tata claimed yesterday during an interview on WUNC radio that the cost of the groups’ Pamlico Sound plan was exorbitant, ranging between $800 million and $1.2 billion.

That figure was wildly inflated, SELC’s executive director Derb Carter responded, pointing out that DOT had estimated the plan at $569 million in 2012.

In any event, comparing the Pamlico Sound plan to the state’s piecemeal plan is virtually impossible given the lack of details about the latter, the groups argue.

How can the $569 million price tag for a one-bridge comprehensive solution to the NC-12  and Bonner Bridge quandary be compared to an alternative that will include, at a minimum, three bridges plus whatever else is necessary as new storms hit the island?

That’s an argument that might find favor in the Fourth Circuit, which in May 2012 overturned a district court’s approval of NCDOT’s Monroe Bypass project in Charlotte on similar grounds.

Legal arguments aside, geological and other experts say that a band-aid approach to the storm-battered area is just bad fiscal and environmental policy.

Stan Riggs, a coastal scientist at East Carolina University and author of “The Battle for North Carolina’s Coast,” told the New York Times in 2012 that maintaining NC-12 “is totally a lost cause.”

“It will bankrupt the state,” he added.

That’s the current plan nonetheless, and Tata said yesterday on WUNC that the state is ready to go with a new, state-of-the-art bridge running parallel to the Bonner Bridge.

“They can engineer that bridge so well that it can withstand a Category 3 or 4 hurricane,” Robert Young, a coastal geologist and head of the Program for the Study of Developed Shorelines at Western Carolina University also told the New York Times back when NCDOT decided to go with the parallel bridge plan.

“The barrier island it is connected to cannot.”

As for DOT’s plans to build additional bridges along NC-12, possibly elevated, to protect the route from future wash-out and erosion, Young said today that people out on the coast should be very concerned.

“Lots of people have concerns about the long bridge going out into the sound.  What they don’t understand is that under the state’s latest plan, we will be building a long bridge. It’s just going to wind up out into the ocean as erosion continues.”

Image: NCDOT

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