ELR Citation: 50 ELR 20046
No(s). 2:17-cv-3412 (D.S.C. Feb 21, 2020) (Hendricks, J.)

A district court granted in part and denied in part motions to compel discovery in a challenge to the Federal Highway Administration's (FHwA's), U.S. Army Corps of Engineers', and EPA's approval of permits for construction of a new interstate highway from North Carolina to Myrtle Beach. An environmental group asserted that the agencies' compiled administrative record was incomplete because it did not include all the information that was directly or indirectly considered by the agencies when rendering their decisions not to prepare a supplemental EIS (SEIS) and to approve a CWA §404 permit for the project. The court denied the group's motion to include e-mails sent by an EPA employee expressing concern that the alternatives analysis on which the agencies relied was outdated and opining that an SEIS would likely be needed, because the record already showed the Agency's concern and opinion as to those matters. It also denied the group's motion to include e-mails sent by the South Carolina Department of Natural Resources criticizing the alternatives analysis, because the group failed to show those e-mails were considered by EPA decisionmakers when deliberating and rendering their final decision. The court did, however, find that the group's letter requesting preparation of an SEIS and describing new information that the FHwA allegedly failed to consider should be added to the record because the letter may illustrate factors that the FHwA should have considered when rendering its decision. It therefore granted the group's motion to compel to the extent it seeks supplementation of the FHwA record with its request letter.