North Carolina Wildlife Federation v. North Carolina Department of Transportation

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

NORTH CAROLINA WILDLIFE 
FEDERATION; CLEAN AIR CAROLINA;
YADKIN RIVERKEEPER,
Plaintiffs-Appellants,
v.
NORTH CAROLINA DEPARTMENT OF
TRANSPORTATION; EUGENE  No. 11-2210
CONTI, Secretary of the North
Carolina Department of
Transportation; FEDERAL HIGHWAY
ADMINISTRATION; JOHN F. SULLIVAN,
Division Administrator, Federal
Highway Administration,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
James C. Dever III, Chief District Judge.
(5:10-cv-00476-D)

Argued: March 21, 2012

Decided: May 3, 2012

Before MOTZ, SHEDD, and AGEE, Circuit Judges.
2 N. CAROLINA WILDLIFE v. N. CAROLINA DEP’T TRANSP.
Vacated and remanded by published opinion. Judge Motz
wrote the opinion, in which Judge Shedd and Judge Agee
joined.

COUNSEL

ARGUED: Frank S. Holleman, III, SOUTHERN ENVIRON-
MENTAL LAW CENTER, Chapel Hill, North Carolina, for
Appellants. Seth Morgan Wood, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina; Scott
Thomas Slusser, NORTH CAROLINA DEPARTMENT OF
JUSTICE, Raleigh, North Carolina, for Appellees. ON
BRIEF: Chandra T. Taylor, Kimberley Hunter, J. David Far-
ren, SOUTHERN ENVIRONMENTAL LAW CENTER,
Chapel Hill, North Carolina, for Appellants. Roy Cooper,
Attorney General, Raleigh, North Carolina, for Appellees
North Carolina Department of Transportation and Eugene
Conti, Secretary of the North Carolina Department of Trans-
portation; Thomas G. Walker, United States Attorney,
Raleigh, North Carolina, for Appellees Federal Highway
Administration and John F. Sullivan, Division Administrator,
Federal Highway Administration.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

The North Carolina Department of Transportation and the
Federal Highway Administration (collectively "the Agen-
cies") recently approved construction of a new twenty-mile
toll road in North Carolina linking Mecklenburg and Union
Counties—the Monroe Connector Bypass. Seeking to enjoin
construction of the toll road, the North Carolina Wildlife Fed-
eration, Clean Air Carolina, and Yadkin Riverkeeper (collec-
tively "the Conservation Groups") filed this suit, contending
 N. CAROLINA WILDLIFE v. N. CAROLINA DEP’T TRANSP. 3
that the process by which the Agencies approved the road vio-
lated the National Environmental Protection Act ("NEPA").
The district court granted summary judgment to the Agencies.
The Conservation Groups now appeal. Because the Agencies
failed to disclose critical assumptions underlying their deci-
sion to build the road and instead provided the public with
incorrect information, they did indeed violate NEPA. Accord-
ingly, we must vacate the judgment of the district court and
remand for further proceedings consistent with this opinion.

I.

We begin by recounting the undisputed facts and the proce-
dural history of this case.

A.

In 2007, after a number of failed attempts, the North Caro-
lina Department of Transportation again proposed construc-
tion of the Monroe Connector Bypass (hereinafter "the
Monroe Connector") and, under the Federal Highway Admin-
istration’s supervision, commenced the environmental assess-
ment process required by NEPA.

The Agencies began by creating a Statement of Purpose
and Need, which evaluated the region’s existing transporta-
tion network, including an in-depth analysis of U.S. Highway
74. That road serves as the "primary transportation connection
between Union County, the fastest growing county in North
Carolina, and Mecklenburg County/City of Charlotte, the eco-
nomic hub of the region," and "also serves as an important
commercial corridor." The Agencies determined that U.S.
74’s "[a]verage travel speeds range from approximately 20 to
30 miles per hour during the peak hour" with "one-third of the
intersections operating at an unacceptable Level of Service."
The Statement of Purpose and Need concluded that U.S. 74
suffers from "[c]apacity [d]eficiencies" and does not allow for
"high-speed regional travel."
4 N. CAROLINA WILDLIFE v. N. CAROLINA DEP’T TRANSP.
To remedy these shortcomings, the Agencies proposed
developing "a facility that allows for safe, reliable, high-speed
regional travel in the US 74 Corridor . . . while maintaining
access to properties along existing US 74."

In evaluating possibilities that might meet these goals, the
Agencies created an Environmental Impact Statement (herein-
after "Impact Statement"). The Agencies began with a draft
Impact Statement, and after taking public comment, published
a final Impact Statement. See 40 C.F.R. §§ 1502.9(a),
1503.1(a), 1503.4.

The draft Impact Statement analyzed a wide variety of pro-
posals, among them the Agencies’ preferred choice—the
Monroe Connector. After two initial screenings, the Agencies
eliminated all but three categories of proposals: (1) improve
U.S. 74, (2) construct the Monroe Connector, and (3) a hybrid
—combining the Monroe Connector with improvements to
U.S. 74. Within these categories, the Agencies developed
twenty-five "preliminary study alternatives." They analyzed
these preliminary study alternatives to determine which ones
"should be carried forward" as "detailed study alternatives" to
receive greater analysis. After considering economic impacts
and traffic projections, the Agencies "carried forward" sixteen
"build" alternatives for detailed study.1 These "build" alterna-
tives consisted of nearly identical paths for constructing the
Monroe Connector.

The Agencies also carried forward a "no action" alternative
—a scenario "without major improvements." The draft Impact
Statement and the final Impact Statement explained that the
1
The Agencies eliminated the hybrid category after determining that the
necessary improvements "would have a significant adverse impact on
businesses and the economy of Union County." They eliminated the "im-
prove U.S. 74" category after projecting that by 2035, daily traffic volume
on an improved U.S. 74 would far exceed traffic volume on U.S. 74 and
the Monroe Connector combined.
 N. CAROLINA WILDLIFE v. N. CAROLINA DEP’T TRANSP. 5
purpose of the "no action" or "no build" alternative was "to
provide a baseline for comparison" with the "build" alterna-
tives. For example, in the draft Impact Statement, the Agen-
cies compared the year-2035 traffic projections for the "build"
alternatives against the year-2035 traffic projections for the
"no build" baseline. Similarly, in the final Impact Statement
the Agencies compared the indirect and cumulative environ-
mental effects of the "build" alternatives with the "no build"
baseline. Given its widespread use the accuracy of the "no
build" baseline was critically important.

The Agencies created the "no build" baseline using infor-
mation from a local planning organization. They relied on the
Mecklenburg-Union Metropolitan Planning Organization
("MUMPO") to develop socioeconomic data based on its
Regional Travel Demand Model. This model projects "popu-
lation, household, and employment figures" for the region
using a two-step process. First, a "top-down" analysis of "cen-
sus and employment projection data . . . at the county [level]"
calculated "the maximum number of households, population
and employment." Appellees’ Br. at 15-16. Second, a
"bottom-up" process allocated the top-down projected growth
throughout the Monroe Connector’s future land use study
area. Id.

The bottom-up process divided the area into 571 "traffic
analysis zones." MUMPO’s model then calculated projected
growth for each of these zones using a number of "land devel-
opment factors": developable and redevelopable residential
land, population change, water availability, sewer availability,
expert predicted growth, municipal growth policy, and travel
time to employment. A zone’s "travel time to employment"
depended on MUMPO’s anticipated roadway network for the
region. This anticipated roadway network included the pro-
posed Monroe Connector. Thus, although the Agencies used
MUMPO’s projections as the "no build" baseline, part of
MUMPO’s data actually assumed construction of the Monroe
6 N. CAROLINA WILDLIFE v. N. CAROLINA DEP’T TRANSP.
Connector. By using MUMPO’s data, therefore, the Agencies
incorporated "build" assumptions into the "no build" baseline.

Throughout the NEPA process, public commentators
repeatedly asked the Agencies whether the "no build" baseline
in fact assumed construction of the Monroe Connector. In
responding to these comments, the Agencies either failed to
address the underlying issue or incorrectly stated that the
Monroe Connector was not factored into the "no build" base-
line.

For example, when the Agencies published their estimate
that the 2035 "build" traffic volume would be less than the
2035 "no build" baseline traffic volume, the Conservation
Groups queried whether this "implausibl[e]" conclusion might
be the result of the "no build" data actually "assum[ing] that
the Monroe Connector" would be built. Without responding
to the Conservation Groups’ underlying concerns regarding
the accuracy of the "no build" baseline, the Agencies simply
issued an errata table lowering the 2035 "no build" traffic pro-
jection baseline to below the "build" levels. The Agencies
offered no explanation as to the source of the error and
instead summarily stated that "the 2035 No-Build Alternative
[traffic] forecast was inadvertently overestimated," and
assured the public that "all other conclusions and discussions
remain valid."

Similarly, when the Agencies concluded that the indirect
and cumulative environmental effects of the Monroe Connec-
tor were minimal compared to the "no build" baseline, the
United States Fish and Wildlife Service requested "further
clarification regarding the basis for the No-build scenario."
"Specifically," the Fish and Wildlife Service asked "if
MUMPO’s [projections] are the basis for the no-build sce-
nario and [if] they contain the [Monroe Connector], how is
this a true characterization of no-build?" The Agencies
responded with a memorandum drafted by their consultant,
Baker Engineering, concluding that "the methodology for
 N. CAROLINA WILDLIFE v. N. CAROLINA DEP’T TRANSP. 7
determining the No-Build scenario . . . is appropriate and
defensible." Baker expressly stated, however, that "the
MUMPO . . . projections do not account for the Monroe Con-
nector[ ]." (emphasis added).

Unsatisfied with this response, the Fish and Wildlife Ser-
vice asked whether the Agencies were "doubly sure about
th[eir] assumption." The Agencies subsequently asked Baker
to contact MUMPO and local officials to ask whether they
"would agree with [its] assumption that the[ ] ["no build"
baseline] forecasts represent a future scenario without the
Monroe Connector." After receiving generally confirming
responses, Baker assured the Fish and Wildlife Service. In
light of this assurance, although the Fish and Wildlife Service
"continued to be concerned about the level of impacts," it
issued its Endangered Species Act concurrence, thereby
removing a major impediment to the Monroe Connector.

On August 27, 2010, the Agencies issued their Record of
Decision—the final component of the NEPA process. See 40
C.F.R. § 1505.2. The Conservation Groups again asked
whether the underlying data represented a true "no build" sce-
nario. The Record of Decision responded with additional
denials, stating that the "socioeconomic forecasts for the No
Build Scenario did not include the Monroe Connector."
(emphasis added). The Record of Decision ultimately selected
a site for construction of the Monroe Connector at an approxi-
mate cost of $800 million.

B.

On November 2, 2010, the Conservation Groups filed this
action seeking to enjoin construction of the Monroe Connec-
tor. After the district court denied the Conservation Groups’
motions for a preliminary injunction and to complete and sup-
plement the record, the parties filed cross-motions for sum-
mary judgment.
8 N. CAROLINA WILDLIFE v. N. CAROLINA DEP’T TRANSP.
The Conservation Groups asserted that the Agencies vio-
lated NEPA by: "(1) failing to analyze the environmental
impacts of the Monroe Connector[ ]; (2) conducting a flawed
analysis of alternatives; and (3) presenting materially false
and misleading information to other agencies and to the pub-
lic." N.C. Wildlife Fed’n v. N.C. Dep’t of Transp., 2011 WL
5042075, at *1 (E.D.N.C. Oct. 24, 2011). In response, for the
first time, the Agencies admitted that the "no build" baseline
data did, indeed, assume the existence of the Monroe Connec-
tor, but the Agencies nonetheless contended that they were
entitled to summary judgment. See id. at *4, *9. The district
court agreed with the Agencies, reasoning that their "use of
and reliance on [MUMPO’s] data was reasonable and did not
violate defendants’ NEPA obligations." Id. at *10. Accord-
ingly, the district court granted summary judgment to the
Agencies.

The Conservation Groups timely noted this appeal.

II.

NEPA claims are subject to judicial review under the
Administrative Procedure Act, which permits a reviewing
court to set aside an agency action if the action was "arbitrary,
capricious, an abuse of discretion, or otherwise not in accor-
dance with law." 5 U.S.C. § 706(2)(A); see Dep’t of Transp.
v. Pub. Citizen, 541 U.S. 752, 763 (2004); Marsh v. Or. Natu-
ral Res. Council, 490 U.S. 360, 375-76 (1989). "This inquiry
must ‘be searching and careful,’ but ‘the ultimate standard of
review is a narrow one.’" Marsh, 490 U.S. at 378 (quoting
Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S.
402, 416 (1971)). A reviewing court must ensure that the
agency has "‘examine[d] the relevant data and articulate[d] a
satisfactory explanation for its action,’" F.C.C. v. Fox Televi-
sion Stations, Inc., 556 U.S. 502, 513 (2009) (quoting Motor
Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins.
Co., 463 U.S. 29, 43 (1983)), and must not reduce itself to a
"rubber-stamp" of agency action. Fed. Mar. Comm’n v.
 N. CAROLINA WILDLIFE v. N. CAROLINA DEP’T TRANSP. 9
Seatrain Line, Inc., 411 U.S. 726, 745-46 (1973); see also
Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177,
192 (4th Cir. 2009).

The NEPA process includes a range of "‘action-forcing’
procedures that require . . . agencies [to] take a ‘hard look’ at
environmental consequences [of a proposed action] and [to]
provide for broad dissemination of relevant environmental
information." Robertson v. Methow Valley Citizens Council,
490 U.S. 332, 350 (1989) (quotation marks and citation omit-
ted). This process does not mandate particular substantive
results, but "merely prohibits uninformed—rather than unwise
—agency action." Id. at 351; see also Pub. Citizen, 541 U.S.
at 756-57 ("NEPA imposes only procedural requirements";
not "particular results"). "By so focusing agency attention,
NEPA ensures that the agency will not act on incomplete
information, only to regret its decision after it is too late to
correct. Similarly, the broad dissemination of information
mandated by NEPA permits the public and other government
agencies to react to the effects of a proposed action at a mean-
ingful time." Marsh, 490 U.S. at 371 (citing Robertson, 490
U.S. at 349).

"At the heart of NEPA is a requirement" that for every
"major Federal action[ ] significantly affecting the quality of
the human environment," the agency involved must prepare
"a detailed" environmental impact statement. Pub. Citizen,
541 U.S. at 757 (quoting 42 U.S.C. § 4332(2)(C)). This state-
ment must assess, inter alia, (1) "alternatives to the proposed
action," and (2) "the environmental impact of the proposed
action." Id.; see also Shenandoah Valley Network v. Capka,
669 F.3d 194, 196 (4th Cir. 2012); Nat’l Audubon Soc’y v.
Dep’t of the Navy, 422 F.3d 174, 185 (4th Cir. 2005).

An agency’s assessment of alternatives to the proposed
action "sharply defin[es] the issues and provid[es] a clear
basis for choice among options by the decisionmaker and the
public." 40 C.F.R. § 1502.14. Agencies must "[r]igorously
10 N. CAROLINA WILDLIFE v. N. CAROLINA DEP’T TRANSP.
explore and objectively evaluate all reasonable alternatives."
Id. § 1502.14(a). Although agencies have discretion to iden-
tify the range of "reasonable" alternatives, they must "include
the alternative of no action." Id. § 1502.14(c)-(d); see also
Theodore Roosevelt Conserv. P’ship v. Salazar, 661 F.3d 66,
72 (D.C. Cir. 2011).

An agency’s assessment of environmental impacts, in turn,
is the "scientific and analytic basis for the comparison[ ]" of
alternatives. 40 C.F.R. § 1502.16. As part of this analysis,
agencies must measure the indirect and cumulative environ-
mental effects of proposed actions. See id. § 1502.16(a)-(b).
Conclusory statements that the indirect and cumulative effects
will be minimal or that such effects are inevitable are insuffi-
cient under NEPA. See Ctr. for Biological Diversity v. U.S.
Dep’t of Interior, 623 F.3d 633, 642-43 (9th Cir. 2010); Davis
v. Mineta, 302 F.3d 1104, 1122-23 (10th Cir. 2002); see also
State Farm, 463 U.S. at 43.

III.

In this case, there is no dispute that the Monroe Connector
constitutes a "major Federal action" under NEPA, which
requires an environmental impact statement. The Conserva-
tion Groups argue that the Agencies failed to assess alterna-
tives or measure the indirect and cumulative effects of the
Monroe Connector because of a fundamental inaccuracy in
the "no build" baseline. Specifically, the Conservation Groups
maintain that, in calculating the "no-build" baseline, the
Agencies relied on data that assumed that the Monroe Con-
nector existed. By doing so, the Agencies assertedly conflated
the "no build" and "build" scenarios, making it impossible to
accurately isolate and assess the environmental impacts of the
Monroe Connector. Moreover, the Conservation Groups claim
that the Agencies compounded this error by refusing to
acknowledge it to the public, and instead, maintaining
throughout the administrative process that the "no build" data
did not assume the existence of the Monroe Connector.
 N. CAROLINA WILDLIFE v. N. CAROLINA DEP’T TRANSP. 11
The Agencies concede much of the Conservations Groups’
argument. At the district court, the Agencies acknowledged
that MUMPO’s data assumed the existence of the Monroe
Connector. See N.C. Wildlife Fed’n, 2011 WL 5042075, at *4,
*9. Before us, the Agencies also conceded that this fact came
to their attention during the administrative process. See Oral
Argument at 17:32, 18:45, 26:50, N.C. Wildlife Fed’n v. N.C.
Dep’t of Transp., ___ F.3d ___ (4th Cir. May 3, 2012) (No.
11-2210), available at http://coop.ca4.uscourts.gov/
OAarchive/mp3/11-2210-20120321.mp3. The Agencies addi-
tionally admitted that they publicly (and erroneously) denied
this fact throughout the administrative process. See Oral
Argument at 30:20, 35:18, 37:07, 38:47; N.C. Wildlife Fed’n,
2011 WL 5042075, at *5. Nonetheless, the Agencies maintain
that because they "conducted a thorough analysis of the envi-
ronmental impacts" of the Monroe Connector and "accepted
comments from the public," we should defer to their exper-
tise. Appellees’ Br. at 29.

What the Agencies would have us ignore is that NEPA pro-
cedures emphasize clarity and transparency of process over
particular substantive outcomes. See Pub. Citizen, 541 U.S. at
756-57; Robertson, 490 U.S. at 350-51; see also Or. Natural
Desert Ass’n v. Bureau of Land Mgmt., 625 F.3d 1092, 1121
n.24 (9th Cir. 2010) ("Clarity is at a premium in NEPA
because the statute . . . is a democratic decisionmaking tool
. . . ."). Accordingly, agencies violate NEPA when they fail
to disclose that their analysis contains incomplete informa-
tion. See N.M. ex rel. Richardson v. Bureau of Land Mgmt.,
565 F.3d 683, 708 (10th Cir. 2009); Native Ecosystems Coun-
cil v. U.S. Forest Serv., 418 F.3d 953, 964 (9th Cir. 2005);
Sierra Club v. U.S. Army Corps of Eng’rs, 701 F.2d 1011,
1030 (2d Cir. 1983); see also State Farm, 463 U.S. at 43
(holding that an agency acts arbitrarily and capriciously when
it fails to "examine the relevant data and articulate a satisfac-
tory explanation for its action including a rational connection
between the facts found and the choice made") (internal quo-
tation marks omitted). Such required "up-front disclosures
12 N. CAROLINA WILDLIFE v. N. CAROLINA DEP’T TRANSP.
[include] relevant shortcomings in the data or models." Lands
Council v. Powell, 395 F.3d 1019, 1032 (9th Cir. 2005); see
40 C.F.R. § 1502.22 (An agency "shall make clear" if there is
"incomplete or unavailable information" in an environmental
impact statement.). Here, the Agencies not only failed to dis-
close the assumptions underlying MUMPO’s data, but pro-
vided the public with erroneous information.

The very purpose of public issuance of an environmental
impact statement is to "provid[e] a springboard for public
comment." Pub. Citizen, 541 U.S. at 768 (alteration in origi-
nal). In this case, however, the Agencies’ responses to the
public comments contravened that purpose. In commenting,
the Fish and Wildlife Service and a number of private parties,
including the Conservation Groups, repeatedly raised ques-
tions regarding the "no build" baseline. But, rather than take
these opportunities to make a "candid acknowledgment" of
what they knew to be the truth, Nat’l Audubon Soc’y, 422
F.3d at 185, the Agencies maintained that the "no build" data
did not include the Monroe Connector.

This mischaracterization related to a critical aspect of the
NEPA process—the accuracy of the "no build" baseline.
NEPA requires that an agency’s alternatives analysis include
a "no build" alternative. 40 C.F.R. § 1502.14(d). "Without
[accurate baseline] data, an agency cannot carefully consider
information about significant environment impacts . . . result-
ing in an arbitrary and capricious decision." See N. Plains
Res. Council, Inc. v. Surface Transp. Bd., 668 F.3d 1067,
1085 (9th Cir. 2011). Accordingly, courts not infrequently
find NEPA violations when an agency miscalculates the "no
build" baseline or when the baseline assumes the existence of
a proposed project. See, e.g., Friends of Yosemite Valley v.
Kempthorne, 520 F.3d 1024, 1037-38 (9th Cir. 2008);2 N.C.
2
Laguna Greenbelt v. U.S. Department of Transportation, 42 F.3d 517
(9th Cir. 1994), on which the Agencies heavily rely, not only predates
Friends of Yosemite, but in fact provides no support for the Agencies’
 N. CAROLINA WILDLIFE v. N. CAROLINA DEP’T TRANSP. 13
Alliance for Transp. Reform, Inc. v. U.S. Dep’t of Transp.,
151 F. Supp. 2d 661, 690 (M.D.N.C. 2001).

In an attempt to avoid this outcome, the Agencies contend
that although they provided the Fish and Wildlife Service, the
Conservation Groups, and the public incorrect information
regarding the "no build" data, their subsequent admissions
during this litigation cured these missteps. They cite no sup-
port for this proposition, and we have found none. To accept
the Agencies’ argument would amount to acceptance of "post
hoc rationalizations for agency action," State Farm, 463 U.S.
at 50, rather than "judg[ing] the propriety of [the] action
solely by the grounds invoked by the agency." SEC v. Chen-
ery Corp., 332 U.S. 194, 196 (1947).

This we cannot do. For "[i]t is well-established that an
agency’s action must be upheld, if at all, on the basis articu-
lated by the agency itself." State Farm, 463 U.S. at 50 (citing
Chenery, 332 U.S. at 196). The "basis articulated by the
agency" is the administrative record, not subsequent litigation
rationalizations. See O’Reilly v. U.S. Army Corps of Eng’rs,
477 F.3d 225, 238-39 (5th Cir. 2007); Hall v. U.S. Envt’l
Prot. Agency, 273 F.3d 1146, 1161 (9th Cir. 2001). Our focus
on the administrative record in this case is particularly appro-
priate given that NEPA emphasizes the importance of an open
and public environmental assessment process. See Nat’l
Audubon Soc’y, 422 F.3d at 184. NEPA "guarantees that the
relevant information will be made available to the larger audi-

arguments. There, the court rejected the argument that relying on "local
planning documents that assume[d] the existence of the tollroad" violated
NEPA, but only because the "record show[ed] that 98.5% of all land in the
project’s ‘area of benefit’ [wa]s already accounted for by either existing
or committed land uses not contingent on construction of the [project]."
Id. at 525. The case at hand is markedly different. The record here is
devoid of any evidence establishing that the region is developmentally sat-
urated such that a major toll road will have no appreciable environmental
impact.
14 N. CAROLINA WILDLIFE v. N. CAROLINA DEP’T TRANSP.
ence that may also play a role in both the decisionmaking pro-
cess and the implementation of that decision." Robertson, 490
U.S. at 349.3

The Agencies now admit that the administrative record
mischaracterizes the "no build" data. Such an acknowledg-
ment made during litigation does not change the fact that the
NEPA process itself relied on those mischaracterizations. For
example, the Record of Decision—the "final agency action,"
Natural Desert, 625 F.3d at 1118, and conclusive statement
of "what the [agency’s] decision was," 40 C.F.R. § 1505.2(a)
—incorrectly states that the "socioeconomic forecasts for the
No Build Scenario did not include the Monroe Connector."
Litigation admissions cannot change this.

When relevant information "is not available during the
[impact statement] process and is not available to the public
for comment[,] . . . the [impact statement] process cannot
serve its larger informational role, and the public is deprived
of [its] opportunity to play a role in the decision-making pro-
cess." N. Plains, 668 F.3d at 1085 (citing Robertson, 490 U.S.
at 349). Accordingly, we reject the Agencies’ argument that
their after-the-fact disclosures assuage the harms incurred
during the NEPA process.4
3
The Agencies have steadfastly opposed the Conservation Groups’
attempts to supplement the administrative record with contemporaneous
emails between agency officials, assertedly evidencing that the Agencies
acted in bad faith. In doing so, the Agencies have repeatedly argued that
the certified administrative record provides the complete basis for judicial
review. See Appellees’ Br. at 55. Though we need not decide whether the
district court abused its discretion in denying the Conservation Groups’
motion to supplement the administrative record with these emails, we do
note the incongruity of the Agencies’ position: the Agencies contend that
the Conservation Groups should not be permitted to add to the administra-
tive record emails sent before the record closed, while at the same time
urging us to give controlling weight to their litigation concessions, not
made until well after the administrative record closed.
4
The Agencies briefly raise two other arguments. First, they contend
that through Baker they adequately responded to concerns about the pro-
 N. CAROLINA WILDLIFE v. N. CAROLINA DEP’T TRANSP. 15
In sum, although we need not and do not decide whether
NEPA permits the Agencies to use MUMPO’s data in this
case, we do hold that by doing so without disclosing the
data’s underlying assumptions and by falsely responding to
public concerns, the Agencies failed to take the required
"‘hard look’ at environmental consequences." Shenandoah
Valley, 669 F.3d at 196. We therefore vacate the judgment of
the district court and remand so that the Agencies and the
public can fully (and publicly) evaluate the "no build" data.5

priety of the "no build" data. But in response to queries from public and
private groups as to the propriety of the "no build" data, Baker undertook
two patently inadequate steps. One concluded that the Monroe Connector
was not in the "no build" baseline, the other did not focus at all on the
potential error.
Second, the Agencies maintain that the Conservation Groups "over-
state" the importance of the error involved in including the Monroe Con-
nector in the "no build" baseline. The Agencies acknowledge that the error
affected one of the factors in MUMPO’s model—travel time to employ-
ment. In general, areas with reduced travel time to employment tend to
experience greater population growth and development, which can sub-
stantially impact the local environment. But by including the Monroe Con-
nector in the "no build" baseline’s travel time to employment, the
Agencies assumed that the new road would not decrease travel time to
employment, and thus would not cause development with attendant envi-
ronmental impacts. To minimize this mistake, the Agencies argue that the
model incorporated other, untainted factors. In doing so, the Agencies
ignore their own record evidence of the importance of travel time to
employment. Not only did this factor receive disproportionate weight in
the model, but the Agencies repeatedly noted that decreased travel time to
employment often spurs development. Accordingly, the administrative
record does not demonstrate the irrelevance of travel time to employment.
To assume this fact would overstep our limited scope of review. See Chen-
ery, 332 U.S. at 196.
5
The Conservation Groups point to a number of other instances where
the Agencies assertedly failed to comply with NEPA’s requirements. See,
e.g., 40 C.F.R. § 1502.24. We need not address these contentions because
on remand, when the Agencies reevaluate the Impact Statement, they will
have an opportunity to provide full public disclosure and all necessary
explanations of their process.
16 N. CAROLINA WILDLIFE v. N. CAROLINA DEP’T TRANSP.
IV.

For the reasons discussed above, we vacate the judgment of
the district court and remand for further proceedings consis-
tent with this opinion.

VACATED AND REMANDED