MOTION FOR PRELIMINARY INJUNCTION AND MEMORANDUM IN by ixv13561

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                      UNITED STATES DISTRICT COURT
                       DISTRICT OF SOUTH CAROLINA

                          CHARLESTON DIVISION

SOUTH CAROLINA COASTAL                 )
CONSERVATION LEAGUE,                   )
                                       )
                Plaintiff,             )
                                       )
                  v.                   )




                                                                  e
                                       )




                                                                ic
UNITED STATES ARMY CORPS OF            )        C.A. No. 2:07-cv-03802-CWH
ENGINEERS, CHARLESTON DISTRICT, et al. )




                                                       rv
                                       )
                Defendants,            )




                                                     Se
                                       )
SOUTH CAROLINA STATE PORTS             )
AUTHORITY,                             )
                Defendant-Intervenor.  )
                                       )
                                              s
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MOTION FOR PRELIMINARY INJUNCTION AND MEMORANDUM IN SUPPORT
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                                       INTRODUCTION

        Pursuant to Rule 65, Fed. R. Civ. P., Plaintiff South Carolina Coastal Conservation

League (“the League”) moves this Court for a preliminary injunction to prevent construction of a

marine terminal project that will cause irremediable environmental harm and greatly limit

options for protecting Charleston’s transportation backbone, Interstate 26 (“I-26”), from severe

degradation. In this lawsuit the League contends that federal approvals given for the proposed

terminal and an associated roadway at the former Charleston Naval Complex fail to comply with

applicable law in numerous respects. As germane here, an injunction is needed because Federal

Defendants are violating the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et

seq. (2009), by allowing the proposed terminal and roadway and their 10,920 vehicle trips a day

to become a reality before the Federal Highway Administration (“FHWA”) has evaluated

whether I-26 can accommodate such traffic, or decided whether the access roadway, interchange

or interstate widening needed for the terminal can safely, and lawfully, be approved.          An

injunction is also needed to prevent construction from prejudicing the consideration of options to

reduce impacts on I-26, such as the use of near-dock rail to divert container traffic from the

interstate.

        The Fourth Circuit has approved NEPA injunctions to stop construction that harms the

environment or that constrains evaluation of project alternatives. Construction here would do

both. Relief is also strongly supported by the four-factor test for preliminary injunctions. First,

the League’s underlying merits case is strong. In contravention of law requiring projects to be

evaluated comprehensively, the agencies piecemealed evaluation of the terminal and its

necessary road components, and by doing so obscured the overall project’s billion-dollar costs

and severe impacts while precluding the evaluation of less costly alternatives like near-dock rail.

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Second, construction will do the League harm by causing severe irreparable environmental

damage to the Cooper River and making an objective evaluation of other alternatives practically

impossible. Third, delay to assure compliance with the law will cause no cognizable harm to

Federal Defendants, and any harm befalling the State Ports Authority (“SPA”) is of its own

making – the League requested that SPA not begin construction to avoid triggering this request

for injunctive relief. Further, because of a massive decline in trade, SPA’s Charleston facilities

currently suffer from significant overcapacity and will have overcapacity for at least the next

decade; no capacity constraints could be caused by temporarily enjoining construction that would

only add to an existing glut.

       Finally, the public interest strongly favors preliminary relief. An injunction is needed to

ensure that public agencies spending public money on public projects that would severely

degrade a critical piece of publicly-owned infrastructure – Interstate 26 – comply with the law.

Construction should be enjoined until the agencies convince this court that they have completed

a lawful review process and issued all required permits and approvals.

                                         BACKGROUND

I.     Statutory Framework

       NEPA sets forth a regulatory scheme for major federal actions that may significantly

affect the natural environment.      Mt. Lookout-Mt. Nebo Prop. Prot. Ass'n v. Fed. Energy

Regulatory Comm'n, 143 F.3d 165, 171 (4th Cir. 1998). The statute’s purpose is “to promote

efforts which will prevent or eliminate damage to the environment and biosphere and stimulate

the health and welfare of man.” Nat'l Audubon Soc’y v. Dep't of the Navy, 422 F.3d 174, 184

(4th Cir. 2005) (quoting 42 U.S.C. § 4321). To achieve these goals, agencies must prepare “a

detailed statement” on “any adverse environmental effects which cannot be avoided should the



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proposal be implemented” and “any irreversible and irretrievable commitments of resources

which would be involved in the proposed action should it be implemented.” 42 U.S.C. §

4332(2)(C); 40 C.F.R. § 1508.11 (2009).1 Called an environmental impact statement (“EIS”),

the document serves dual functions. “First, it ensures that agencies take a hard look at the

environmental effects of proposed projects. Second, it ensures that relevant information

regarding proposed projects is available to members of the public so that they may play a role in

the decision-making process.” Hughes River Watershed Conservancy v. Glickman, 81 F.3d 437,

446 (4th Cir. 1996) (Hughes River I) (citing Robertson v. Methow Valley Citizens Council, 490

U.S. 332, 349 (1989)).

        By “focusing [an] agency's attention on the environmental consequences of a proposed

project, [the ‘action-forcing’ nature of] NEPA ensures that important effects will not be

overlooked or underestimated only to be discovered after resources have been committed or the

die otherwise cast.”     Robertson, 490 U.S. at 350 (citations omitted).     That full-disclosure

mandate is further effectuated by the statute’s requirement that agencies examine “alternatives to

the proposed action” in the EIS. 42 U.S.C. § 4332(2)(C)(iii). Recognized as “the heart of the

environmental impact statement,” this alternatives analysis must “[r]igorously explore and

objectively evaluate all reasonable alternatives” to the action, including, importantly, the “no

action” alternative. 40 C.F.R. § 1502.14. To explore a proposal’s impacts and alternatives



1
  The Council on Environmental Quality (“CEQ”) has set forth regulations that agencies are
required to follow, see 40 C.F.R. § 1500.3 (2009), and courts give these regulations “substantial
deference.” Andrus v. Sierra Club, 442 U.S. 347, 358 (1979). The CEQ regulations require that
an EIS must be prepared in stages, beginning with a draft EIS, or DEIS, which must be circulated
to obtain feedback from other agencies and the public. 40 C.F.R. §§ 1502.9(a), 1503.1. Agencies
must then respond to these comments and publish a FEIS. Id. §§ 1502.9(b), 1503.4. After the
FEIS is complete, the agency may be required to draft a supplemental EIS, or SEIS, if changed
circumstances obtain or new information becomes available. Id. § 1502.9(c). Finally, once the
agency has made a decision, it must publish a record of decision (“ROD”). Id. § 1505.2.
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properly, an EIS must define a proposal at the correct scale, with “proposals which are related to

each other closely enough to be, in effect, a single course of action” to “be evaluated in a single

impact statement.”     40 C.F.R. § 1502.4(a); see also 40 C.F.R. § 1508.25(a)(1).            More

specifically, the following actions are to be evaluated together: where one action

“[a]utomatically trigger[s]” another; where one action “[c]annot or will not proceed unless”

another is “taken previously or simultaneously”; where two actions “[a]re interdependent parts of

a larger action”; and where two actions have “cumulatively significant impacts.” 40 C.F.R. §

1508.25(a); see also § 1508.7. “Only through comprehensive consideration of pending proposals

can the agency evaluate different courses of action.” Kleppe v. Sierra Club, 427 U.S. 390, 410

(1976); see Nat’l Audubon Soc’y, 422 F.3d at 197.

       To make holistic evaluation more than an empty gesture, the regulations specify that,

until “an agency issues a record of decision” on an overall proposal, “no action concerning the

proposal shall be taken which would: (1) [h]ave an adverse environmental impact; or (2) [l]imit

the choice of reasonable alternatives.” 40 C.F.R. § 1506.1(a); see also § 1502.2(f) (“Agencies

shall not commit resources prejudicing selection of alternatives before making a final decision.”).

The Fourth Circuit has accordingly approved injunctions to prevent work on a highway project

where it found that “[i]f investment in the proposed route were to continue prior to and during

the [government] consideration of the environmental report, the options open to the Secretary

would diminish, and at some point his consideration would become a meaningless formality.”

Arlington Coalition on Transp. v. Volpe, 458 F.2d 1323, 1333 (4th Cir. 1972); see Md.

Conservation Council, Inc. v. Gilchrist, 808 F.2d 1039, 1042-43 (4th Cir. 1986); W. N.C.

Alliance v. N.C. Dep't of Transp., 312 F. Supp. 2d 765, 774 (E.D.N.C. 2003) (enjoining I-26

project that would create traffic bottleneck and pre-ordain need to widen other highway



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segments).

II.     History of the Project

        This lawsuit concerns an EIS that purports to evaluate a marine container terminal

serviced by trucks and a four lane access roadway that would carry those trucks to and from I-26

in North Charleston, South Carolina. See First Amend. Compl. at 2 [Dkt. #28]2. As the U.S.

Army Corps of Engineers (“Corps”) embarked upon preparing the EIS, its cooperating agency,

the Federal Highway Administration (“FHWA”), stated that the EIS would “need to include an

analysis of the transportation impacts and improvements needed to accommodate the additional

traffic associated with the port expansion project.” Letter from R. Lee, FHWA, to Lt. Col. A.

Lee, Corps (April 22, 2004) [Ex. B]. Subsequent traffic studies showed that adding the port

access roadway’s 10,920 vehicles per day to I-26 would cause the interstate to fail, and the port

interchange to have deficiencies, unless the existing six-lane interstate were widened to eight

lanes westward of the port interchange.3 Faced with this data, officials from the Corps, FWHA

and SCDOT met by phone on August 22, 2006 to decide whether to include the widening project




2
  A diagram showing the proposal is attached to the present motion as Exhibit A.
3
  See, e.g., Letter from R. Lee, FHWA, to Lt. Col. E. Fleming, Corps, at 2 (Oct. 10, 2006)
(warning that traffic from the port access road would cause portions of I-26 “to breakdown
significantly earlier than the no-action alternative”) [Ex. C]; E-mail from J. Barker, SCDOT, to
S. Armstrong, Parsons Brinkerhoff (“PB”) (July 7, 2006) [Ex. D] (explaining that the proposed
“interchange works with 8 lanes along I-26” but would “have deficiencies with only the existing
6 lanes”); E-mail from S. Armstrong, Parsons-Brinckerhoff, to T. Kitowicz, FHWA, at 1 (Nov.
17, 2006) [Ex. E] (widening needed with port access road interchange because “adequate LOS
(Level of Service) requires thru [sic] traffic to be distributed within 4 lanes instead of 3 lanes”);
Final Envtl. Impact Statement: Proposed Marine Container Terminal at the Charleston Naval
Complex, App. E to App. W, “Supplemental Traffic Report” at 30 (Table 15) [Ex. F] (stating
that the interchange’s collector-distributor road “would operate at poor LOS if the I-26 mainline
is not widened to four lanes in each direction”); Letter from T. Chapman, SCDOT, to Senator
Hugh Leatherman, Chairman, Senate Finance Committee at 1 (Nov. 14, 2006) [Ex. G] (seeking
support for $531 million in roadway improvements necessary for the new terminal, including
$235 million for the I-26 widening).
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in the EIS. (COE016992-94).4 To “move forward with the Port EIS, the Corp[s] need[ed]

concurrence from FHWA that the Port Access Road, and its accompanying impacts to I-26”

would “comply with acceptable highway design standards.” (COE016692) [Ex. H].

        The agencies saw two options: (1) move “forward with I-26 impacts” and “I-26

improvements” included in the EIS despite “the necessary delay in the current EIS” (noted as the

“preferred method”), or (2) move the EIS forward “with a conditional IMR [interchange

modification report] stating that in a separate project I-26 will be improved to an acceptable

level for service for the Port design year,” with the anticipated interstate improvement completed

“by an agreed-upon future year.”       (COE016993 (emphasis added)).             Because traffic

information provided by the Corps’ contractor, Parsons Brinckerhoff (“PB”), indicated “that I-26

will fail to operate in the westbound direction (p.m. peak) at an average of 10 years sooner as a

result of the new access road traffic,” id., FHWA believed that “inclusion of the I-26

improvements in the current EIS is the preferred and probably only solution.” E-mail from S.

Ikerd, FHWA, to R. Patton, SCDOT, and D. Hinton, FHWA (Aug. 21, 2006) [Ex. I]. Thus, the

state and federal transportation agencies decided on August 21, 2006 that “the westbound

widening of I-26 is being added to the Port EIS.” E-mail from R. Patton, SCDOT, to N. Ball,

Corps (Aug. 22, 2006) (COE016991) [Ex. J]. The decision was memorialized several days later

in a letter from SCDOT’s Executive Director to the Corps stating that the “early failure” of I-26

caused by the port traffic was “unacceptable, as it will adversely impact both the general public,

as well as efficient ingress and egress of the new port traffic,” and declaring that “[b]ased upon

this information, we cannot recommend approval of the [interchange modification report] IMR

unless an additional westbound lane, extending from the new access road interchange through

4
 Documents produced by the Corps in its Administrative Record are referred to by “COE”
number.
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the Montague interchange, is added as an integral part of the access roadway project.” Letter

from B. Mabry, SCDOT, to Lt. Col. Fleming, Corps (Aug. 28, 2006) (noting as well that “traffic

data developed to date is insufficient to determine if there are similar operation concerns in the

eastbound direction in the AM peak hour.”) (COE001723-24) [Ex. K]. 5

        SPA and the Corps resisted inclusion of I-26 in the EIS, which would have delayed its

completion.6 To that end, an SPA official contacted the modelers at Parsons Brinckerhoff with

suggestions on how the modeled impacts of the port access roadway could be reduced. Noting

that SPA “really had no basis” for earlier port traffic assumptions it provided to modelers, the

SPA official, Joe Bryant, suggested other, “just as easily” made assumptions that would reduce

the port’s modeled impact on I-26; admonished modelers to use lower numbers than SPA had

earlier provided for Veterans Terminal; and asked how reducing assumed port volume by 35%




5
  See E-mail from R. Lee, FHWA, to T. Chapman/E. Mabry, SCDOT (Sept. 23, 2006) (attaching
FHWA Minute Memo at 1 (Sept. 19, 2006)) (“FHWA is of the opinion that addressing the
adverse affects needs to be part of the project and therefore included in the existing EIS.”) [Ex.
L]; Parsons Brinckerhoff, Meeting Summary (Aug. 31, 2006) (COE017196-97)
(“SCDOT/FHWA noted that an IMR would need to be included in the current FEIS project that
indicates adequate levels of services, including the widening of Interstate 26 to Montague
Avenue Interchange based on the recent Year of Failure Analysis (westbound) done by PB.”)
[Ex. M]; E-mail from J. Bryant, SPA, to N. Ball, Corps, et al. (Aug. 24, 2006) (COE017024)
(“FHWA is concerned because the IMR indicates certain sections of the westbound lanes of I-26
will reach level of service F very shortly after the facility opens. SCDOT feels the situation can
be addressed with the addition of another lane for those segments.”).
6
  See, e.g., E-mail from N. Ball, Corps, to J. Bryant, SPA, et al. (Aug. 27, 2006) (COE017031)
(expressing “concern[] that we have jumped to the conclusion that widening of I-26 and any
additional environmental work must be included in the FEIS.”); E-mail from C. Boltin, DHEC,
to S. Brooks et al., DHEC, (Oct. 12, 2006) (stating that “there is a deadline being pushed on
DHEC from DOT and Corps” and that “[t]he Commissioner is under lots of pressure to get this
completely out of DHEC by the end of the week”) [Ex. N]. See also E-mail from N. Ball, Corps,
to D. Hinton, FHWA, (Oct. 17, 2006) [Ex. O]. E-mail from N. Ball to S. Armstrong (Aug. 22,
2006) (COE016993) (Referencing “the necessary delay” accompanying the “preferred method”
of including the I-26 widening in the EIS).
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“would…affect [] failure dates” of I-26 “since [the volume] number is a guess at this point.”7 In

response, the modelers smoothed down the new terminal’s assumed growth curves and boosted

background growth assumed from the nearby federal law enforcement training center

(“FLETC”) to show the port access roadway hastening I-26’s failure by less than 10 years, as

earlier shown.8 See E-mail from R. Patton, SCDOT to N. Ball, Corps, and S. Ikerd, FHWA

(Aug. 28, 2006) (COE017031) (noting Parsons Brinckerhoff and others “spent almost two weeks

trying to prove” that I-26 fails “only 2-3 years sooner with the Port than without”). In the end,

the best the modelers could do was indicate that the port access road would cause two I-26

segments to the west of the port interchange – the segment from Meeting Street interchange (Exit

217) to the Cosgrove Avenue interchange (Exit 216), and the next segment from Cosgrove to

Dorchester Road (Exit 215) – to fail up to eight and five years earlier than would occur

otherwise, respectively, with another two miles in the eastbound direction failing four years

earlier.9

        The Corps moved forward to finalize its EIS with the port access road included as an

“integral part of the proposed project,” but with the I-26 interchange and widening excluded

7
  E-mail form J. Bryant, SPA, to R. Patton et. al (Sept. 1, 2006) (COE017044) [Ex. P]; E-mail
from J. Bryant, SPA, to S. Armstrong, Parsons Brinckerhoff (Sept. 6, 2006) (COE017054); E-
mail from J. Bryant, SPA, to M. Rahman, Parsons Brinckerhoff (Sept. 15, 2006) (COE017082)
[Ex. Q]; see E-mail from J. Bryant, SPA, to N. Ball, Corps, et al. (Sept. 6, 2006) (CEO017057)
(admitting SPA’s reduced port throughput assumption was “an educated guess”) (COE016993);
8
  E-mail from M. Rahman, Parsons Brinckerhoff, to J. Bryant, SPA (Sept. 15, 2006) (CE017083)
[Ex. R].
9
  While Table 5.2-2 of the EIS shows the I-26 westbound segment between Dorchester and
Montague and all eastbound segments not failing as of 2025 without the port [Ex. S], other tables
show the port roadway causing the westbound segment from the Meeting Street (Exit 217) to
Cosgrove Avenue (Exit 216) to fail in 2018 instead of 2025 (“seven plus” years earlier), the
westbound segment from Cosgrove to Dorchester Road (Exit 215) to fail in 2014 rather than
2019 (five years earlier), and the eastbound segment between Dorchester Road and Montague
Avenue (Exit 213) to fail in 2014 rather than 2018 (four years earlier). See EIS, p. 5-37 (Table
5.1-17) and Tables 9, 10, 12, and 13 at pages 23-27 in “Appendix E – Traffic Technical
Memorandum,” attached to EIS Appendix W. [Ex. F].
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from the project definition. EIS at 3-3 [Ex. S]. Reversing its earlier course, FHWA agreed

separately evaluate the I-26 widening and interchange by completing a nominally independent

environmental assessment (“EA”) to be followed by a finding of no significant impact

(“FONSI”).10

       Despite agreeing to this plan, FHWA remained of the conclusion that port access road

traffic would cause over four miles of westbound I-26 (the segments mentioned above) “to

breakdown significantly earlier than the no-action alternative.” E-mail from D. Hinton, FHWA,

to N. Ball, Corps (Oct. 25, 2006) [Ex. T]. In a subsequent interchange modification reports

prepared for submittal to FHWA, SCDOT concluded the same thing, and stated that the

collector-distributor (“C-D”) merge area of the port access road “would operate at a LOS [level

of service] of F” without widening.11

       The Corps’ EIS published in December 2006, obscures the port roadway’s impact on I-26

by claiming that “population growth” will cause several segments of I-26 to “reach a failing level

of service over the next 20 years” and as “a result, I-26 will need to be widened whether or not a

new port facility is constructed.” EIS, at ES-13-14 [Ex. S]. It also discounts locating the

terminal at other sites as having “a much greater impact” because their truck traffic would be

added to I-526, a heavily congested highway that has “no ongoing plans to widen.” EIS, at ES-



10
   An EA is a “concise public document” which contains a far briefer analysis than that required
in an EIS and is only adequate when a project has no significant environmental impacts. See 40
C.F.R. 1508.9 (2009).
11
   SCDOT, “Interchange Modification Report, I-26 and CNC Marine Container Terminal Access
Road, Charleston, SC” at 5-6 (Final Rev. July 15, 2008) [Ex. U]. LOS ratings are based on the
density of vehicles on a freeway, and are defined at six levels from best (LOS A) to the worst
(LOS F). FHWA and SCDOT, Environmental Assessment for I-26 Improvements, at 6 (April
2007) [Ex. V]. As relevant here, LOS D is the level at which speed declines slightly from
increasing flows; LOS E describes operations “at capacity”; and LOS F “occurs when queues
begin to form on the freeway as a result of a breakdown or bottleneck at a downstream point.”
Id.
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14.     While the narrative notes that the proposed project would cause capacity constraints

“sooner” with the project than without, it blames this on “background growth in traffic and [an]

inadequate number of lanes” and assures these problems are “being addressed in a separate study

by the SCDOT” of I-26 widening, EIS at 3-18, with a “mitigated Alternative 1d scenario”12

shown to demonstrate that the Corps’ chosen roadway option, Alternative 1d, would provide

acceptable levels of service when I-26 is widened to eight lanes. EIS at 5-79. The flip side of

that coin – the inability of the access roadway and interchange to properly operate unless I-26 is

widened to eight lanes – is only hinted at deep within a table contained in an appendix to an

appendix in volume 4 of the EIS. Table 15, App. E to App. W, at 30 (proposed connector-

distributor “C-D road on-ramp . . . would operate at poor LOS if the I-26 mainline is not widened

to four lanes in each direction”).

          The Corps published its record of decision (“ROD”) for the terminal and roadway in

April 2007, and pursuant to the agreed upon plan, FHWA signed its environmental assessment

for “I-26 Improvements” at the same time.             See Environmental Assessment for I-26

Improvements from I-526 (Exit 212) to North Meeting Street (Exit 217) [Ex. V]. In terms of

extent, the eastern terminus of the I-26 project in the EA is the Meeting Street Exit of I-26, while

the western terminus of the terminal project is the same exit, ROD at 9 (COE013373). These

overlapping termini would be conjoined by a new interchange connecting the port roadway to I-

26. See Letter from T. Chapman, SCDOT, to R. Lee, FHWA, at 1 (March 31, 2008) (“proposed

access road exits the port terminal and will interchange with existing I-26, necessitating

modifications to the existing interchange at milepost 217 and closure of the existing interchange

at milepost 218”) [Ex. A to Fed. Defs’ Opp. To Joinder Ex. E] [Dkt. #85.] Because that



12
     EIS, App. E to App. W, at 16.
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interchange is necessary for the terminal and roadway, the Corps assured FHWA that “[i]f

SCDOT does not receive the funding or approval of the IMR [interchange modification report]

the access road and the port facility will not be constructed.” Email from N. Ball, Corps, to D.

Hinton, FHWA, at 1 (Oct. 17, 2006) [Ex. O].13 At the same time, however, the interchange

requires I-26 to be widened to eight lanes for proper operation, and would have “deficiencies

with only the existing six lanes”14 with its collector-distributor road merge area operating at LOS

F if I-26 is not widened,15 which the EIS almost admits in an appendix. See EIS (showing C-D

merge area having “poor” level of service “if the I-26 mainline is not widened to four lanes in

each direction”). EIS App. E to App. W, at 30 (Table 15) [Ex. F].16 Consistent with this

functional interdependence, the agencies freely admitted the interconnectedness of the terminal,

roadway, interchange and widening to officials when seeking funding for their project.17 Yet

they persisted in segmenting the elements in their environmental evaluation. As a result, the EIS



13
   Interchange modification reports are received and evaluated by FWHA pursuant to its
statutory duty to evaluate addition or modification of interstate interchanges, and FHWA’s
decision-making must comply with NEPA . 23 U.S.C. §111; 63 Fed. Reg. 7045 (Feb. 11, 1998).
14
   E-mail from J. Barker, WSA, to T. Kitowicz, FHWA, at 1 (July 7, 2006) (forwarding
statement by S. Armstrong, PB) [Ex. W].
15
   SCDOT, “Interchange Modification Report, I-26 and CNC Marine Container Terminal Access
Road, Charleston, SC” at 5-6 (Final Rev. July 15, 2008) [Ex. U]
16
   See E-mail from S. Armstrong, PB, to T. Kitowicz, FHWA, at 1 (Nov. 17, 2006) (widening
needed “to develop the 4 lanes westbound by the point the westbound [port interchange
collector/distributor road] occurs” because “adequate LOS requires thru [sic] traffic to be
distributed within 4 lanes instead of 3 lanes”) [Ex. E].
17
   For example, in a letter sent to the chairman of the Senate Finance Committee (and copied to
FHWA), SCDOT represented that “road improvements associated with the port expansion at the
naval base in North Charleston [would cost] $531 million” including $235 million for the
interchange modification and I-26 widening admitted to be an “element of the port project”
required by “the increased traffic projected along the I-26 corridor from the new port access road
interchange west to the I-26/Montague Road interchange.” Letter from T. Chapman, SCDOT, to
Sen. H. Leatherman at 1 (Nov. 14, 2006) [Ex. G]; see also Letter from B. Limehouse, SCDOT,
to Rep. J. Merrill at 1 (Sept. 14, 2007) (stating SCDOT working towards “receipt of the final
environmental document approvals from the Federal Highway Administration (FHWA) for the
port access road and interchange at I-26”) [Ex. AA].
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approved by the Corps in April 2007 assumes that I-26 will be widened, while the environmental

assessment produced by FHWA that same month assumes that port traffic will necessitate

widening,18 as do Interchange Modification Reports subsequently submitted by SCDOT to

FHWA.19 Sequencing the reviews in this way prevented the agencies from ever considering

alternatives for preserving safe operations on I-26 without a new terminal or interchange. E-mail

from J. Humphreys, Wilbur Smith Associates, to D. Hinton, FHWA, et al. (attaching MAR6

meeting notes, at 2 (March 9, 2007)) (“despite the I26 Team’s recommendation to include a ‘No-

Port – No Widening’ scenario [in] the traffic analysis” this was “discouraged . . . by FHWA”).

In response, The League submitted lengthy comment letters objecting to the segmentation of the

interdependent Project components. Comments by J. Blanding Holman, at 1-199 to 1-221

(COE012554-76); see also Letter from B. Holman, Southern Environmental Law Center, to

Tony Fallaw, SCDOT, and Dan Hinton, FHWA at 1 (Jun. 28, 2007) (stating that “the

transportation agencies have subverted and manipulated the NEPA process – with its

requirement that environmental impacts of a project be evaluated as a whole rather than in

segments[.]”) [Ex. Z]. The League also submitted a traffic expert’s report in response to both the

EIS and the EA showing that the agencies’ transportation modeling is incorrect and that

presentation of its results is misleading because it obscures the reality that the port access

roadway would, by itself, cause I-26 to fail. Declaration of Lucinda Gibson [Ex. BB].

       Purporting to address the League’s comments, SCDOT, in conjunction with FHWA,

announced that it would issue a revised EA to include the “impacts from the port access

interchange” with the widening and show “how the improvement on [sic] I-26 would integrate

18
   See EA at 7 (Table 1) (showing all I-26 except one with Level of Service “F” where CNC
project traffic is added to current six-lane configuration) [Ex. V].
19
   SCDOT “Interchange Modification Report, I-26 and CNC Marine Terminal Access Road,” at
6 (Final Rev. July 15, 2008) [Ex. U].
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with the new port access road interchange.” Letter from D. Kinard, SCDOT, to B. Holman,

SELC (Dec. 3, 2007) [Ex. CC]. Because that approach would merely treat the port project as a

fait accompli and prevent the examination of alternatives to the overall project like near-dock rail

or improving I-26 without adding terminal traffic, the League filed the present lawsuit to

challenge the unlawful segmentation of project components and other legal errors.

       FHWA then announced that it would withhold its official decisions concerning any

project component – including, specifically, “its ROD on the Port Access Road portion of the

USCOE’s FEIS” – until this litigation is concluded. Letter from R. Lee, FHWA, to T. Chapman,

SCDOT, at 1 (Feb. 26, 2008) [Ex. DD].20 Indeed, FHWA recently claimed to this Court that the

agency has yet to make any official decision approving the port access roadway, the interchange,

or the widening project needed for the terminal. Def’s Resp. in Opp. to Plaintiff’s Mot. for

Partial Sum. Judgment and Cross Mot., 2:08-cv-02492-CWH, at 9 (July 13, 2009) [Dkt. # 24]

[Ex. EE]. To the League’s knowledge, the Corps has not changed its position that, without

FHWA “approval” of the interchange, “the access road and the port facility will not be

constructed.” E-mail from N. Ball, Corps, to D. Hinton, FHWA, at 1 (Oct. 17, 2006) [Ex. O].

III.   Facts Leading to the Present Motion

       Concerned that SPA intended to initiate construction without all required lawful

approvals, the League sent a letter to SPA in April of this year requesting that SPA not let

contracts for or otherwise commence construction of the Project and warning that any such

actions would be at the SPA’s sole risk, as well as outlining actions that would give rise to

injunctive relief in this Court. Letter from B. Holman, SELC, to P. Lawrence, SPA (April 13,

20
   See also e-mail from R. Lee, FHWA, to T. Chapman/E. Mabry, SCDOT, at 2 (Sept. 23, 2006)
(stating FHWA would issue “separate Record of Decision (ROD) for the portions of the
USACOE’s EIS addressing the Access Road and approving an interchange modification
request”) [Ex. L].
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2009) [Ex. FF]. League counsel also shared the correspondence with the Federal Defendants and

requested that those defendants not allow construction to begin. The League has received no

indication that any of the defendants intend to prevent, delay or stop construction. A subsequent

newspaper article reported that SPA was “expected to sign off soon” on a contract to begin initial

construction of the Project’s wharf structure in the Cooper River despite pending lawsuits.21

                                  STANDARD OF REVIEW

       In order to receive a preliminary injunction, a plaintiff “must establish that he is likely to

succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary

relief, that the balance of equities tips in his favor, and that an injunction is in the public

interest.” Winter v. Natural Res. Def. Council, Inc., __U.S. __, 129 S. Ct. 365, 374, 172 L. Ed.

2d 249, 261 (2008); W. Va. Ass’n of Club Owners v. Musgrave, 553 F.3d 292, 298 (4th Cir.

2009). As this Court knows, these factors interact on a sliding scale:

       When weighing the potential harms . . . a court is required to keep sight of the
       relevant strengths of the parties' positions on the merits. Thus, while a substantial
       discrepancy in the potential harms would have to be found to favor a party whose
       potential for success on the merits was no better than even, less discrepancy in
       relative harms may suffice when that party's chances for success on the merits are
       probable.

Faulkner v. Jones, 10 F.3d 226, 233 (4th Cir. 1993) (aff’g injunction in CA-93-488-2) (D.S.C.

1993) (Houck, J.)).

       A court examining an agency's environmental analysis under NEPA must determine

whether the agency undertook “a thorough investigation into the environmental impacts of an



21
   M. Parker, “Despite legal tangles, North Charleston port project to start in days,” Charleston
Regional Business Journal (June 4, 2009), http://www.charlestonbusiness.com/news/27995-
despite-legal-tangles-north-charleston-port-project-to-start-in-days [Ex. GG] According to the
article, crews would remove 880,000 cubic yards of material, drive steel pipe and sheet walls,
and discharge 290,000 cubic yards of fill to construct a containment wall project that will stretch
850 feet into the Cooper River. Id.
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agency's action and a candid acknowledgment of the risks that those impacts entail.” Nat’l

Audubon Soc'y, 244 F.3d at 185 (citing Robertson, 490 U.S. at 350); see 40 C.F.R. § 1502.14(a)

(agencies shall “[r]igorously explore and objectively evaluate all reasonable alternatives”). In

reviewing an agency's decision not to prepare a supplemental EIS, a court must undertake a two-

step inquiry to determine: (1) whether the agency took a hard look at the proffered new

information and (2) if the agency did take a hard look, whether the agency's decision not to

prepare a supplemental EIS was arbitrary or capricious. Hughes River I, 81 F.3d 443.

         “The decision to issue or deny a preliminary injunction is committed to the sound

discretion of the trial court,” and the appellate court reviews the district court’s decision for an

abuse of discretion. Quince Orchard Valley Citizens Ass'n v. Hodel, 872 F.2d 75, 78 (4th Cir.

1989).

                                          ARGUMENT

         The Fourth Circuit has approved NEPA injunctions to stop construction of project

components that harm the environment or constrain the evaluation of project alternatives; the

project here would do both. Construction of the terminal would directly impact the Cooper River

and would severely limit the options available to keep I-26, Charleston’s transportation

backbone, operating at acceptable levels of service. Further, SPA intends to proceed with

construction even though the Federal Highway Administration has not officially decided whether

to approve the port access roadway, the port access roadway interchange, or widening I-26.

NEPA prohibits construction of any part of the Project before FHWA’s evaluation is complete.

These facts surpass the four-factor test guiding the issuance of preliminary relief.

1. The League Is Likely to Succeed On the Merits

         Although the League has numerous grounds for contesting the Federal Defendants’



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approval of the Project, it focuses here on one claim in particular: unlawful exclusion of the

Project’s I-26 elements from the EIS. As noted, NEPA directs that “[p]roposals…which are

related to each other closely enough to be, in effect, a single course of action” are to “be

evaluated in a single impact statement.”      40 C.F.R. § 1502.4(a); see also 40 C.F.R. §

1508.25(a)(1). The terminal, roadway, interchange and widening constitute a single course of

action, and fit the descriptions of connected projects in the regulations. For example, the

terminal and roadway will “[a]utomatically trigger” the I-26 interchange and widening, and

“[c]annot or will not proceed unless” the I-26 components are constructed “previously or

simultaneously,” 40 C.F.R. § 1508.25(a). The Corps’ has stated that “the access road and the

port facility will not be constructed” without the interchange, [Ex. O], and the interchange will

have “LOS F” if the I-26 mainline is not widened to four lanes in each direction, [Ex. U],

because traffic must be “distributed within 4 lanes instead of 3 lanes” for service to be

“adequate.” [Ex. E]. Further, the terminal will trigger the $250 million widening project because

its 10,920 vehicles a day will cause I-26 to fail when it otherwise would not and the agencies

have said the additional traffic will require widening. See Decl. of Lucinda Gibson at ¶¶ 5-9

[Ex. BB]. The terminal and its roadway component projects are also “interdependent parts of a

larger action” that will have “cumulatively significant impacts” that must be considered together

in the same EIS because the terminal relies on the roadways to function and the roadway projects

are necessitated by the terminal. 40 C.F.R. § 1508.25(a); see also § 1508.7; EIS at 3-18

(admitting terminal roadway has “cumulative impacts” on I-26 that would likely require the

widening of segments” of I-26) [Ex. S]. Notably, the transportation agencies considered these

components as interconnected parts of a larger endeavor when seeking funds for them from

legislators.



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       The segmentation of these component actions was unlawful.                     “Only through

comprehensive consideration of pending proposals can the agency evaluate different courses of

action.” Kleppe v. Sierra Club, 427 U.S. 390, 410 (1976); see State of North Carolina v. City of

Virginia Beach 951 F.2d 596, 603 (4th Cir. 1992) (segmentation occurs when piecemealed action

has a “direct and substantial probability of influencing [the agency's] decision on the larger

project.) Here, one option that FHWA and the Corps should have evaluated, but have yet to, is

the use of near-dock rail facilities to divert traffic from I-26 and reduce or displace the need for

highway widening. See Gibson Decl. at ¶ 10. Since “24% of the truck volumes entering I-26

westbound will exit at the next several interchanges to arrive at the two intermodal yards” owned

by CSX and Norfolk Southern,22 providing direct access to rail facilities could remove 24% of

terminal traffic from I-26, or almost 2,000 tractor trailers per day.23 More direct and efficient rail

access could boost that percentage even higher, but segmentation has prevented the agencies

from investigating that option and whether removal of thousands of trucks a day from I-26 would

expand the range of alternatives for maintaining levels of service on I-26, as it certainly would.

See Gibson Decl. at ¶¶ 9-10 [Ex. BB].

       Indeed, because the Environmental Assessment prepared by FHWA on the “separate” I-

26 improvements assumes a truck-only terminal has already been built, the option of not building

the terminal while widening I-26 cannot be considered, even though this option would provide

Charleston with the highest level of I-26 performance – as confirmed by a subsequent internal

evaluation undertaken at SPA’s direction. See Tables 5 & 6, Wilbur Smith, “Engineering & Cost

Study – Port Access Road, Charleston, S.C.” (attached to e-mail from D. Kinard, SCDOT, to D.

22
  Parsons Brinckerhoff, Meeting Summary (Aug. 31, 2006) (COE017196) [Ex. M].
23
  See EIS at 3-4, Table 3.501 (“Summary Comparison of Environmental Consequences from
Project Alternatives”) (specifying project would generate 10,920 trips per day “of which 63
percent would be made by trucks”).
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Hinton, FHWA (April 18, 2008)) [Ex. HH].

       On similar facts, U.S. District Judge Terrence Boyle preliminarily enjoined the

segmentation of an I-26 widening project near Asheville. W. N.C. Alliance v. N.C. Dep't of

Transp., 312 F. Supp. 2d 765, 774 (E.D.N.C. 2003). There, the agency analyzed the widening of

one segment of I-26 without including the next highway segment in its analysis. Because

widening the first segment would “create a bottleneck and additional congestion where” it met

the next segment, the court found it lacked independent utility or a logical terminus, and enjoined

the segmentation to prevent the defendants from subdividing “projects that do not have

independent utility or logical termini simply to expedite the NEPA process or avoid addressing

environmental impacts.” Id. at 774-75 (citing Wilds v. S.C. Dep't of Transp., 9 Fed. App'x 114,

121 (4th. Cir. 2001)). Nor did evidence that the next, excluded segment was “already congested

and targeted for expansion” change the conclusion, since the proposed widening would

“eliminate options and clearly restrict consideration of alternatives” for it. Id. at 776.24

       The same situation presents itself here. The terminal project terminus and the I-26

projects’ terminus overlap and physically intertwine so that there is nothing “logical” about

keeping them separate. Further, segmentation allowed the Corps to mislead the public about the

terminal proposal’s full costs because its EIS simply assumes that the $300 million widening

project needed to “mitigate[]” project impacts, EIS, App. E to App. W at 16 [Ex. F], will be

undertaken by others, as if for free. Yet by making the port project and its 10,920 vehicles a fait

accompli, segmentation deprives those who must actually pay for that widening – taxpayers –



24
   The court also found noteworthy the agency defendants’ earlier characterization of their
supposedly discrete project as part of the “overall widening project” of the I-26 corridor. Id. at
776. See Fla. Wildlife Fed'n v. U.S. Army Corps of Eng'rs, 401 F. Supp. 2d 1298, 1321 (D. Fla.
2005) (finding unlawful segmentation where agency initially discussed project as a whole before
using “independent utility” concept as “post-hoc [] avenue to limit and expedite permit review.”)
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from evaluating other options to protect I-26 at far less expense, such as near-dock rail. Because

segmentation thus has “direct and substantial probability of influencing” the evaluation of

alternatives, it violated the letter and spirit of NEPA. State of North Carolina, 951 F.2d at 603;

see Arlington Coal. on Transp., 458 F. 2d. at 1333.

2. The League is Likely to Suffer Irreparable Harm in the Absence of Preliminary Relief

       The Fourth Circuit has recognized that an injunction “may be necessary to prevent

actions that would produce either or both” of the results prohibited by the CEQ regulations

pending NEPA compliance: those that “have an adverse environmental impact” or “limit the

choice of reasonable alternatives.” Nat'l Audubon Soc’y, 422 F.3d at 201 (citing 40 C.F.R. §§

1506.1(a), 1502.2(f)).    “‘[E]nvironmental injury, by its nature, can seldom be adequately

remedied by money damages and is often permanent or at least of long duration, i.e.,

irreparable.’” S.C. Dep’t of Wildlife & Marine Res. v. Marsh, 866 F.2d 97, 100 (4th Cir. 1989)

(quoting Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 545 (1987)). The 220 acre

terminal site “includes approximately 70 acres of tidal march and open water habitat that would

be dredged and filled to provide additional container storage or developed as a pile-supported

wharf.” ROD at 7 (COE013371). Some 1.2 million cubic yards of material “would be dredged

from the area between the shoreline and the proposed wharf and then backfilled once the

containment structure has been installed.” Id. at 45. According to the Corps, the “entire aquatic

ecosystem in the project site and its vicinity will be severely impacted by the Port Expansion

construction and the effects will likely be permanent,” including from “dredging and filling

activities [that] will severely impact the benthic infaunal communities by removing them from

the project area.” Id. at 48; see Heindel Decl. at ¶ 5 [Ex. II].

       Injunctive relief is also needed to prevent construction of a truck-only terminal from



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rendering the evaluation of alternatives, like rail or not constructing the terminal at all, “a

meaningless formality.” Arlington Coal. on Transp., 458 F.2d at 1333; see Nat’l Audubon

Soc’y, 422 F.3d at 201; Md. Conservation Council, 808 F.2d at 1042-43; W. N.C. Alliance, 312

F. Supp. 2d at 774; Crutchfield v. U.S. Army Corps of Eng’rs, 192 F. Supp. 2d 444, 462 (E.D.

Va. 2001) (enjoining construction that “would increase significantly the pressure to approve the

project as tendered” and create “pressures which, viewed realistically, restrict the regulators’

options”); see also S.C. Wildlife Fed'n v. S.C. Dep’t of Transp., 485 F. Supp. 2d 661, 677

(D.S.C. 2007) (Norton, J.) (retaining injunctive jurisdiction to prevent actions that could

“significantly alter how the agencies evaluate” alternatives and render “court's remedy

nugatory”). The danger ascertained in these cases is clear and present here: once “resources have

been committed or the die otherwise cast” by construction of the terminal, Robertson, 490 U.S.

at 350, that facility’s $600 million pricetag and the 10,920 vehicles it aims to put on I-26 will

significantly alter, if not pre-determine, how the port access road, the port interchange, and the I-

26 widening are evaluated. Injunctive relief is required to prevent that violation of NEPA. See

Conservation Law Found. Inc. v. Busey, 79 F.3d 1250, 1271 (1st Cir. 1996) (finding NEPA

injunction necessary to prevent agencies “becom[ing] entrenched in a decision uninformed by

the proper NEPA process because they have made commitments or taken action to implement

the uninformed decision”).

3. The Balance of Equities Between the Parties Strongly Favors the League

       The harms recognized by the Fourth Circuit favoring NEPA injunctions outweigh the

harm to Defendants. The Federal Defendants, for their part, should suffer no harm at all from

having construction enjoined consistent with their statutory mandates. Nor will SPA, a state

agency, suffer harm from the delay necessary to comply with applicable law: the increased cost



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associated with the additional time needed to comply with NEPA is not irreparable harm. Park

County Res. Council, Inc. v. U.S. Dept. of Agric., 817 F.2d 609, 618 (10th Cir. 1987); Coalition

for Canyon Preservation v. Bowers, 632 F.2d 774, 780 (9th Cir. 1980).

       SPA may attempt to claim harm from unexpectedly having to tell contractors to stop

work. But the League wrote to SPA months ago requesting that SPA not let contracts or begin

construction, and warning that injunctive relief would be appropriate to prevent environmental

damage, preserve an objective alternatives analysis, and stop construction on a project that has

yet to receive all needed approvals. Letter from B. Holman, SELC, to P. Lawrence, SPA (April

13, 2009) [Ex. FF].25 Any injury that came after that request and warning is of SPA’s own

making.   As for claims that deferred construction would lead to capacity constraints, the

unfortunate reality is that SPA’s existing terminals are significantly underutilized now and will

remain so for the foreseeable future. A recent South Carolina Department of Commerce report

showed that Charleston’s maximum throughput capacity of 2.6 million twenty-foot equivalent

units (TEUs) will not be exhausted until year 2023. S.C. Dep’t of Commerce. “State Rail Plan

2008 Update” at 88 (March 2008) [Ex. JJ]. SPA has indicated its terminal could be constructed

in five years; accordingly, it could begin construction nine years from now and still avoid

capacity constraints with existing terminals already equipped for large “Post-Panamax” ships.

       Even if SPA’s harms are credited, they are remediable, while the League’s are not.

Environmental harm, as noted, is generally irremediable, and completion of a major portion of

the Project will make it impossible to obtain “comprehensive consideration” of the “pending

proposal[]” as NEPA requires. Kleppe, 427 U.S. at 410 (emphasis added). Moreover, should

25
   A spokesman for the main contractor subsequently noted “concern” about pending suits and
potential work stoppage but stated that the “Ports Authority seems ready to move forward full
steam ahead.” M. Parker, “Despite legal tangles, North Charleston port project to start in days”
Charleston Regional Business Journal (June 4, 2009) [Ex. GG].
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construction proceed the League might well be foreclosed from remedying the segmentation

violation that has occurred, since courts have rejected arguments of illegal segmentation when

the segment in dispute was the last remaining segment of a substantially completed project.

College Gardens Civic Ass'n. v. U.S. Dep’t of Transp., 522 F. Supp. 377 (D. Md. 1981).

4. The Public Interest Strongly Favors Injunctive Relief

       Pursuant to NEPA, “until an agency issues a record of decision” on a proposal, “no action

concerning the proposal shall be taken” that would have adverse environmental impacts or limit

the choice of alternatives. 40 C.F.R. § 1506.1(a); § 1502.2(f) (“Agencies shall not commit

resources prejudicing selection of alternatives before making a final decision.”); see Md.

Conserv. Council, 808 F.2d at 1042 (declaring Fourth Circuit “committed to the proposition that

when a major federal action is undertaken, no part may be constructed without an EIS”).

Contrary to these requirements, construction is about to commence before FHWA has, in its own

words, finished “formulating its final agency decisions” on “three pending actions”: “(1) a

Record of Decision (ROD) for the Port Access Road . . . (2) an Environmental Analysis for the

proposed I-26 improvements [and] (3) an Approval of the proposed Port Access Road/I-26

Interchange Modification Request . . . .”26 And, as FHWA has admitted to this Court, until “in

these actions, a final EIS has been approved and a ROD has been signed by FHWA” the “project

cannot commence” under its regulations.27 See 23 C.F.R. § 771.113 (prohibiting construction

until NEPA process for project is complete). By all accounts, the Project here consists of at least

the terminal and the roadway, see ROD at 3 [Ex. KK], and the Corps itself has stated that “the

access road and the port facility will not be constructed” without an approved interchange. [Ex.



26
   Def’s Resp. in Opp. to Plaintiff’s Mot. for Partial Summ. Judgment and Cross Mot., 2:08-cv-
02492-CWH, at 9 (July 13, 2009) [Doc. # 24] [Ex. EE].
27
   Id. at 10.
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O]. Accordingly, construction of the terminal, or the roadway, before FHWA approves an EIS

and signs these records of decision violates federal law. Requiring the government to act in

accordance with the law is a public interest of the highest order. Seattle Audubon Soc’y v.

Evans, 771 F. Supp. 1081, 1096 (W.D.Wash. 1991), aff’d in relevant part, 952 F.2d 297 (9th Cir.

1991).

         Further, the public interest strongly supports an injunction to preserve the integrity of the

process from “precisely [the] sort of influence on federal decision-making that NEPA is designed

to prevent. Non-federal actors may not be permitted to evade NEPA by completing a project

without an EIS and then presenting the responsible federal agency with a fait accompli.” Md.

Conserv. Council, 808 F.2d at 1039; Patterson v. Exxon, 415 F. Supp. 1276, 1282 (D. Neb.

1976) (stating that “[a]s a practical matter, commitment of resources in one section tends to make

further construction [of that project] more likely”); see Blackwelder Furniture Co. of Statesville

v. Selig Mfg. Co., 550 F. 2d 189, 197 (4th Cir. 1977) (“public interest” factor includes

“preserving the status quo ante litem until the merits of a serious controversy can be fully

considered by a trial court”). NEPA embodies the significant public interest in having public

officials, and the public itself, fully informed about the likely consequences of actions prior to

those actions being taken. “NEPA procedures must insure that environmental information is

available to public officials and citizens before decisions are made and before actions are taken.”

40 C.F.R. § 1500.1(b) (emphases added); see also id. § 1502.5 (environmental analysis must

contribute to decision-making process and not be used to justify decisions already made). Here,

“the public interest expressed by Congress was frustrated by the [] defendants not complying

with NEPA” and “the public has a general interest in ‘the meticulous compliance with the law by

public officials.’” Fund for Animals v. Clark, 27 F. Supp. 2d 8, 15 (D.D.C. 1998) (internal



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citation omitted).

       In a case such as this one, which involves the protection of Charleston’s most vital

transportation corridor and issues of air pollution in excess of levels that impact public health,

the only way to serve the public interest is to enjoin the defendants from proceeding with the

challenged Project until this case is resolved on the merits. See Schenck v. Pro-Choice Network

of W. N.Y., 519 U.S. 357, 375-76 (1997) (finding injunction supported by “the significant

governmental interest in public safety”).



5. Only a Nominal Security Bond Should Be Required

       Pursuant to Rule 65(c), which gives this court discretion to set the bond amount in such

sum as the court deems proper, Hoechst Diafoil Co. v. Nan Ya Plastics Corp., 174 F.3d 411, 421

(4th Cir. 1999), Plaintiff respectfully request that only the nominal bond typical of NEPA cases

be required. See, e.g., Natural Res. Def. Council v. Grant, 2 ELR 20556 (4th Cir. 1972) [Ex.

LL]; Thompson v. Fugate, 1 ELR 20370 (4th Cir. 1971) [Ex. MM]; W. Va. Highlands

Conservancy v. Island Creek Coal Co., 441 F.2d 232, 236 (4th Cir. 1971). Where NEPA cases

are brought by “organizations interested in conservation and having no financial interest in [the]

controversy,” the Fourth Circuit has discerned “little or no reason for requiring more than a

nominal bond of these plaintiffs, … [who] are acting much as private attorneys general.” Natural

Res. Def. Council v. Grant, 2 ELR 20556, at 1 [Ex. LL].


       Pursuant to local Civil Rule 7.02 DSC, counsel for plaintiffs attempted to confer with

counsel for defendants. The Federal Defendants oppose this Motion and counsel is unable to

state whether SPA opposes the motion as well.




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                                           CONCLUSION

       For the foregoing reasons, the League respectfully requests that its Motion for

Preliminary Injunction be granted.


       This, the 19th day of July, 2009.

                                             Respectfully submitted,

                                                      s/ J. Blanding Holman IV
                                             J. Blanding Holman IV (D.S.C. # 9805)
                                             Southern Environmental Law Center
                                             38 Broad Street, Suite 200
                                             Post Office Box 609
                                             Charleston, SC 29402
                                             Tel: (843) 720-5270
                                             Fax: (843) 720-5240
                                             bholman@selcsc.org

                                             Attorney for Plaintiff




                                               25

								
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