                        PUBLISHED


UNITED STATES COURT OF APPEALS
              FOR THE FOURTH CIRCUIT


SHENANDOAH VALLEY NETWORK;              
COALITION FOR SMARTER GROWTH;
ROCKBRIDGE AREA CONSERVATION
COUNCIL; VIRGINIA ORGANIZING
PROJECT; SCENIC VIRGINIA
INCORPORATED; VALLEY
CONSERVATION COUNCIL; SIERRA
CLUB; NATIONAL TRUST FOR
HISTORIC PRESERVATION IN THE
UNITED STATES; APVA
PRESERVATION VIRGINIA,
              Plaintiffs-Appellants,


LARRY ALLAMONG,
                and
                                           No. 10-1954

                           Plaintiff,
                 v.
J. RICHARD CAPKA, Administrator,
Federal Highway Administration;
MARY PETERS, Secretary, United
States Department of
Transportation; ROBERTO FONSECA-
MARTINEZ, Virginia Division
Administrator Federal Highway
Administration,
             Defendants-Appellees,
                                        
2            SHENANDOAH VALLEY NETWORK v. CAPKA


                  v.                   
VIRGINIA DEPARTMENT OF
TRANSPORTATION; VIRGINIA
SECRETARY OF TRANSPORTATION,
PIERCE HOMER; COMMONWEALTH OF          
VIRGINIA; COMMISSIONER OF
TRANSPORTATION, DAVID S. EKERN,
            Intervenors-Appellees.
                                       
         Appeal from the United States District Court
    for the Western District of Virginia, at Charlottesville.
           Norman K. Moon, Senior District Judge.
                  (3:07-cv-00066-nkm-bwc)

                  Argued: December 8, 2011

                 Decided: February 17, 2012

        Before WILKINSON, KING, and KEENAN,
                    Circuit Judges.



Dismissed by published opinion. Judge Wilkinson wrote the
opinion, in which Judge King and Judge Keenan joined.


                          COUNSEL

ARGUED: Matthew E. Price, JENNER & BLOCK, LLP,
Washington, D.C., for Appellants. Sambhav N. Sankar,
UNITED STATES DEPARTMENT OF JUSTICE, Washing-
ton, D.C., for Appellees. ON BRIEF: Andrea C. Ferster,
Washington, D.C., for Appellants; Elizabeth S. Merritt, Dep-
uty General Counsel, Paul W. Edmondson, Vice President &
           SHENANDOAH VALLEY NETWORK v. CAPKA              3
General Counsel, NATIONAL TRUST FOR HISTORIC
PRESERVATION, Washington, D.C., for Appellant National
Trust for Historic Preservation. Kenneth T. Cuccinelli, II,
Attorney General, Suzanne T. Ellison, Senior Assistant Attor-
ney General, OFFICE OF THE ATTORNEY GENERAL,
Richmond, Virginia; Timothy J. Heaphy, United States Attor-
ney, Anthony P. Giorno, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Roanoke,
Virginia; Ignacia S. Moreno, Assistant Attorney General,
UNITED STATES DEPARTMENT OF JUSTICE, Environ-
ment & Natural Resources Division, Washington, D.C.; Tracy
White, UNITED STATES DEPARTMENT OF TRANSPOR-
TATION, Federal Highway Administration, Baltimore, Mary-
land, for Appellees.


                         OPINION

WILKINSON, Circuit Judge:

   The Federal Highway Administration ("FHWA") and the
Virginia Department of Transportation ("VDOT") (collec-
tively, "the Agencies") are planning improvements to Virgin-
ia’s Interstate 81 corridor using a tiered review process.
Appellants—a group of environmental and preservation
organizations—challenged the Agencies’ execution of the
tiered process, alleging various constitutional and statutory
violations. The district court rejected these challenges and
granted summary judgment in favor of the Agencies.

   On appeal, appellants claim that the Agencies are attempt-
ing to foreclose consideration of environmentally friendly
alternatives for specific sections of I-81 by choosing a
corridor-wide improvement concept in the first stage of the
review process. Appellants, however, misapprehend the
Agencies’ position. As confirmed at oral argument, the Agen-
cies plan to comply with the Stipulation in this case and the
4           SHENANDOAH VALLEY NETWORK v. CAPKA
National Environmental Policy Act ("NEPA"), 42 U.S.C.
§§ 4321 et seq., by considering site-specific alternatives to the
corridor-wide concept in subsequent stages. Because there is
no actual dispute here, and because appellants cannot show
any injury or imminent threat of injury, this suit is not justi-
ciable. Accordingly, we must dismiss the appeal.

                               I.

                               A.

   NEPA requires federal agencies to prepare a detailed state-
ment on the environmental impacts of any "major Federal
action[ ] significantly affecting the quality of the human envi-
ronment." 42 U.S.C. § 4332(2)(C). The resulting Environ-
mental Impact Statement ("EIS") must describe "any adverse
environmental effects which cannot be avoided" and rigor-
ously explore alternatives to the proposed action. Id.; see 40
C.F.R. §§ 1502.1, 1502.14. NEPA does not mandate substan-
tive results, Hughes River Watershed Conservancy v. Glick-
man, 81 F.3d 437, 443 (4th Cir. 1996), but it does require
agencies to "take a ‘hard look’ at environmental conse-
quences" and to disseminate information that allows the pub-
lic to participate in the decisionmaking process, Robertson v.
Methow Valley Citizens Council, 490 U.S. 332, 350 (1989)
(citation omitted).

   Agencies are encouraged to conduct a "tiered" or multi-
phase analysis when contemplating large or complex projects.
See 40 C.F.R. §§ 1502.20, 1508.28. At the first tier of "major
transportation actions," agencies consider "broad issues such
as general location, mode choice, and areawide air quality and
land use implications of the major alternatives." 23 C.F.R.
§ 771.111(g). The agencies then address "site-specific details"
at the second tier. Id. This approach allows agencies "to elimi-
nate repetitive discussions of the same issues and to focus on
the actual issues ripe for decision at each level of environmen-
tal review." 40 C.F.R. § 1502.20.
            SHENANDOAH VALLEY NETWORK v. CAPKA                5
   After an agency approves a transportation project and noti-
fies the public of its final action in the Federal Register, the
limitations period for NEPA claims is 180 days. 23 U.S.C.
§ 139(l)(1). Claims arising under NEPA are subject to judicial
review pursuant to the Administrative Procedure Act
("APA"). Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556
F.3d 177, 189 (4th Cir. 2009). A reviewing court must set
aside the action if it is found to be "arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law."
Id. (citing 5 U.S.C. § 706(2)(A); Citizens To Preserve Over-
ton Park, Inc. v. Volpe, 401 U.S. 402, 413-14 (1971)).

                              B.

   Interstate 81—a major trucking corridor—extends 855
miles from Tennessee to New York at the Canadian border,
connecting markets in the northeastern United States and Can-
ada to the mid-southern states. By any measure this highway,
and especially some segments of it, bears heavy traffic. In
Virginia, the I-81 corridor includes many priceless natural and
historic properties, including national parks, Civil War battle-
fields, historic landscapes, and Main Street historic districts.
As a spokesman for the National Trust for Historic Preserva-
tion noted, "[M]any small towns in the Shenandoah Valley
have worked for many years to preserve their historic charac-
ter and to revitalize their downtown commercial districts by
capitalizing on their historic properties." J.A. 190.

   FHWA and VDOT are upgrading Virginia’s I-81 corridor
using a tiered NEPA review. In a 2003 Streamlining Agree-
ment, the Agencies agreed to make broad, corridor-wide deci-
sions in Tier 1 and then evaluate site-specific proposals in
subsequent stages. The Streamlining Agreement set forth the
decisions that would be made at the conclusion of each tier,
established timelines, and explained that the Tier 1 process
would require the Agencies to select a corridor-wide improve-
ment concept, such as adding highway capacity, adding rail
capacity, or segregating commercial truck traffic from general
6           SHENANDOAH VALLEY NETWORK v. CAPKA
purpose traffic. In Tier 2, the Agreement stated, the Agencies
would settle on conceptual design features of the improve-
ments for the components indentified in Tier 1.

   FHWA issued a Final Tier 1 EIS on March 21, 2007. The
Tier 1 EIS identified a wide range of approaches for improv-
ing I-81, including: (1) a "No-Build Concept" in which the
only projects that would be completed are those that are fully
funded through construction; (2) a "Transportation System
Management ("TSM") Concept" that included safety improve-
ments, truck climbing lanes, and advanced transportation
management systems; (3) four different "Rail Concepts"
involving rail line improvements; (4) five "Roadway Con-
cepts" involving the addition of vehicle lanes for the entire
length of I-81 in Virginia; (5) five "Combination Concepts"
that combined rail and highway improvements; and (6) five
"Separated Lane Concepts" involving the separation of lanes
in the same direction of travel.

   The EIS analyzed how well each concept would meet I-
81’s projected capacity and safety needs and the potential
impact of each concept on social, economic, and environmen-
tal resources. It concluded that the No-Build Concept, a stand-
alone TSM Concept, and a stand-alone Rail Concept would
all fail to satisfy the heavy transportation demands on the I-81
corridor. Moreover, the EIS determined, no concept that
added a uniform number of new lanes—separated or not—
along the entire corridor would satisfy I-81’s needs in certain
sections without providing more lanes than necessary in other
sections. Accordingly, the EIS settled on a concept that adds
a variable number of lanes, based on traffic demands, to indi-
vidual segments of the corridor.

   On June 6, 2007, FHWA issued a Tier 1 Record of Deci-
sion ("ROD"), which announced that the concept that FHWA
was advancing into Tier 2 involves constructing no more than
two general purpose lanes in each direction, where needed, to
address 2035 traffic demands. Along with this concept, the
            SHENANDOAH VALLEY NETWORK v. CAPKA                  7
ROD reported, FHWA would advance to Tier 2 several short-
term, independent safety and operational improvements.
Importantly, the ROD also declared that FHWA would divide
Virginia’s I-81 corridor into eight sections of independent
utility for site-specific analysis at Tier 2.

  Following issuance of the Tier 1 ROD, FHWA published
a Notice of Final Agency Actions in the Federal Register on
June 18, 2007. The Notice advised the public of the specific
decisions made at the conclusion of Tier 1, that the Tier 1
decisions would form the basis of subsequent tier proceed-
ings, that the decisions were final, and that—pursuant to 23
U.S.C. § 139(l)(1)—judicial review of the Tier 1 decisions
would be barred unless sought within 180 days.

                               C.

   Appellants filed a complaint in the U.S. District Court for
the Western District of Virginia within the 180-day period of
limitations—on December 17, 2007—and amended the com-
plaint on February 14, 2008. Count I of the amended com-
plaint charged, among other things, that improvement
concepts such as the TSM alternative should have been
advanced to Tier 2. Count II alleged that the Agencies vio-
lated NEPA by prematurely approving the Tier 1 ROD with-
out waiting for the completion of an I-81 freight rail study to
fully assess the feasibility of multi-state rail as an alternative
improvement concept.

   Finally, Count III—entitled "Violation of Due Process, 42
U.S.C. § 1983"—charged that the Agencies’ publication of
the Tier 1 Statute of Limitations Notice will effectively bar
appellants from challenging any failure by the Agencies to
consider alternatives when specific I-81 projects are consid-
ered in the Tier 2 NEPA documents. Consequently, Count III
asserted, the Notice violates appellants’ right to judicial
review of those site-specific decisions.
8           SHENANDOAH VALLEY NETWORK v. CAPKA
   On October 10, 2008, the parties filed a joint Stipulation
and Agreement in order to narrow counts in the pending liti-
gation. The Agreement included a Stipulation of Dismissal in
which the parties agreed to dismiss Count I with prejudice.
The parties expressly disagreed, however, about the impact of
the Tier 1 ROD and limitations period on future claims chal-
lenging the scope of alternatives to be considered at Tier 2.
Appellants described their position as follows:

    [I]t is Plaintiffs’ position that the Tier 1 ROD is not
    a final decision with respect to the range of alterna-
    tives that must be considered under NEPA if and
    when those Tier 2 projects are actually proposed as
    federal actions. Plaintiffs do not agree and do not
    stipulate that the SOL Notice will preclude any chal-
    lenges to Tier 2 decisions alleging failure to consider
    any alternatives under NEPA or any other law.
    Instead, it is Plaintiffs’ position that future claims
    based on Tier 2 projects and Tier 2 NEPA docu-
    ments are not ripe for judicial review until a final
    decision is made to approve that Tier 2 project, and
    are not subject to the SOL Notice.

J.A. 184. For their part, the Agencies articulated the following
stance:

    It is the [Agencies’] position that alternatives to be
    considered during Tier 2 will be consistent with the
    improvement concept advanced from Tier 1. . . .
    Alternatives that are not consistent with this
    improvement concept will not be considered in the
    Tier 2 NEPA documents, except where applicable
    laws and regulations require the consideration of
    other alternatives that avoid impacting specific pro-
    tected environmental resources or where a substan-
    tial change in the proposed action for a specific
    [section of independent utility] or significant new
    and relevant information requires consideration of an
             SHENANDOAH VALLEY NETWORK v. CAPKA                 9
      additional alternative(s). It is the [Agencies’] posi-
      tion that claims challenging the improvement con-
      cept advanced from Tier 1 into Tier 2 are presently
      ripe for judicial review and are barred unless filed on
      or before December 17, 2007.

Id.

   The parties subsequently cross-moved for summary judg-
ment, which the district court granted in favor of the Agen-
cies. The court rejected appellants’ Count II claim that the
Agencies should have postponed Tier 1 decisions pending
completion of the I-81 freight rail study, finding that appel-
lants’ argument was "not only contrary to NEPA and case
law, but [was] unreasonable in light of existing studies con-
cluding that rail is simply not a viable solution for the prob-
lems identified in the I-81 Study." The court also rejected
appellants’ due process claim, stating that "[t]he Tier 1 [EIS]
and ROD explain that the selected variable-lane widening
concept advanced will appropriately narrow the range of alter-
natives under consideration at Tier 2, and the SOL notice
fully complies with FHWA’s guidance for issuing such
notices."

   Appellants then moved to alter or amend the judgment,
arguing that the district court opinion had failed to address (1)
whether the Agencies’ decision "to eliminate alternatives
from consideration during any future Tier 2 NEPA studies
was presently ripe for review," and (2) if ripe, whether that
decision violated NEPA. Concluding that it had in fact
addressed these issues, the district court denied appellants’
motion. According to the court, it had already held "that the
Tier 1 decision to eliminate improvement concepts from fur-
ther consideration during Tier 2 was ripe for review." More-
over, the court asserted, the Agencies’ "analysis of alternate
improvement concepts and the decisions rendered concerning
those concepts were compliant with NEPA and the APA."
The court also denied appellants’ request to file a second
10          SHENANDOAH VALLEY NETWORK v. CAPKA
amended complaint, explaining that "further NEPA chal-
lenges to the decision to reject certain alternate improvement
concepts from consideration at Tier 2 are futile." This appeal
followed.

                               II.

   The substance of appellants’ appeal is that the district
court’s ruling will prevent them from ever challenging the
Agencies’ failure to consider site-specific alternatives to lane-
widening. According to appellants, "the FHWA has devised
an unprecedented shell game by interpreting its Tier 1 ROD
as including a decision to prospectively eliminate alternatives
from consideration in future [site-specific] ‘Tier 2’ NEPA
studies" that—due to the 180-day statute of limitations—
"must be reviewed now, even though these projects have not
yet been proposed, designed, or evaluated." Appellants’ Reply
Br. 1-2. "The district court’s decision," appellants contend,
"would clear the way for the Agencies to widen individual
segments of I-81 in the future, without further consideration
of alternatives, regardless of whether those widening projects
are in environmentally sensitive areas or would harm historic
sites." Id. at 23. Accordingly, appellants brought this appeal
to ensure that they are not foreclosed from challenging any
Tier 2 decisions that fail to consider more environmentally
friendly alternatives to lane-widening.

   Appellants’ concerns, while understandable, are misplaced.
As the Agencies declared before this court, they are bound to
consider site-specific alternatives under the terms of the Stip-
ulation and under NEPA. The Agencies stipulated that they
will consider Tier 2 alternatives to the lane-widening concept
"where applicable laws and regulations require the consider-
ation of other alternatives that avoid impacting specific pro-
tected environmental resources . . . ." J.A. 184. As appellees
acknowledged at oral argument, "‘applicable laws’ include
NEPA," which requires the Agencies to rigorously explore
alternatives that would minimize environmental impacts.
             SHENANDOAH VALLEY NETWORK v. CAPKA               11
NEPA imposes a continuing obligation on the Agencies, as
nothing in the statute confines consideration of alternatives to
Tier 1.

  Consistent with this continuing obligation, the Agencies
repeatedly confirmed at argument that they will consider site-
specific alternatives to lane-widening at Tier 2:

    Court: I want to know from the government . . . it
    would be good to get an answer to this in open court.
    I want to know, when this process moves from a
    general and conceptual, overall road improvement
    project to this more site-specific phase, whether
    environmental alternatives, be they rail or bypasses
    or whatever, whether they are still part of the calcu-
    lus or whether there’s something going on here that
    Tier 1 review in the ROD . . . has precluded and
    foreclosed those . . . . Is the government representing
    to this court that these environmental considerations
    will play a part in the calculus?

    Appellees:    Yes.

    Court:    It will play a part?

    Appellees:    Yes.

    ....

    Court: I want to know whether environmental-
    friendly alternatives are going to be considered in the
    site-specific review.

    Appellees: Absolutely. If the plaintiffs come in
    during the Tier 2 process, and during the comment
    period, for example, say, "You ought to consider
    building a bypass around this historic town," we will
12            SHENANDOAH VALLEY NETWORK v. CAPKA
     look at that, and if it’s a reasonable alternative we
     will examine it.

     ....

     Court:    Bypasses continue to be an option. . . .

     ....

     Appellees: If the plaintiffs come to Tier 2 and say,
     "We’re suggesting a bypass," yeah, we will look at
     the option.

   In addition to considering environmentally friendly alterna-
tives to lane-widening at Tier 2, as required by NEPA, the
Agencies will also analyze whether alternatives are justified
by any changed circumstances. According to the Stipulation,
the Agencies will consider site-specific substitutes for lane-
widening "where a substantial change in the proposed action
for a specific [section of independent utility] or significant
new and relevant information requires consideration of an
additional alternative(s)." J.A. 184. At oral argument, the
Agencies confirmed their commitment to analyzing alterna-
tives in light of changed circumstances:

     Appellees: We have said in the Stipulation that if
     there’s new information that comes to light down the
     road, if somebody says during the Tier 2 process,
     "Hey, you were not aware of this issue here or that
     issue there," we will consider whether we have to do
     something.

     ....

     Court: Suppose the price of gas goes up to 25 dol-
     lars a gallon. . . . So it suddenly becomes very eco-
     nomical to take rail transportation because the price
     of cars and the price of gas . . . have made [automo-
            SHENANDOAH VALLEY NETWORK v. CAPKA                  13
    biles] a less palatable option for people. . . . In those
    circumstances, if circumstances changed, are you
    open to considering that?

    Appellees: I’m not just saying that at the lectern,
    your Honor. It’s in the stipulation. . . . It’s right
    there. We’re not—the plaintiffs are making us out to
    be, you know, ready with our bulldozers and we’re
    going to set them on automatic and walk away.

   In light of the representations made in the Stipulation and
at oral argument, it is clear that appellants misapprehend the
Agencies’ position. The district court’s decision will not, as
appellants contend, "clear the way for the Agencies to widen
individual segments of I-81 in the future, without further con-
sideration of alternatives, regardless of whether those widen-
ing projects are in environmentally sensitive areas or would
harm historic sites." Appellants’ Reply Br. 23. Rather, as
required by NEPA and the Stipulation—and confirmed by
appellees’ counsel before this court—the Agencies will in fact
consider site-specific alternatives to lane-widening at Tier 2.
Such consideration is consistent with NEPA, which seeks not
to thwart necessary improvements, but to channel the
decision-making process in an environmentally sensitive way.
See Robertson v. Methow Valley Citizens Council, 490 U.S.
332, 350-51 (1989). Such consideration would also seem con-
sistent with the nature of the problem, namely that one of the
most heavily trafficked and dangerous thoroughfares in Vir-
ginia passes through some of its most beautiful and historic
land.

   Because the Agencies plan to consider site-specific alterna-
tives at Tier 2, there is no actual dispute here, as appellees
suggested at oral argument:

    Appellees: I think the plaintiffs are making a tem-
    pest out of a teapot here . . .
14          SHENANDOAH VALLEY NETWORK v. CAPKA
     Court: So there may be less disagreement than
     meets the eye . . .

     Appellees:   That’s what I started out by saying.

     ....

     Appellees: Part of the problem is we’re not even
     sure what the disagreement is about, given the way
     this case was briefed and handled in the district
     court.

   We make this inquiry into the Agencies’ position solely to
determine whether appellants have raised a justiciable issue.
This is not a matter of any future prescription, which lies
beyond our authority, but a discharge of our responsibility to
determine if a present controversy among the parties exists. If
the present proceeding forecloses of its own force consider-
ation of environmentally friendly alternatives in the future,
that would be contrary to NEPA and a case or controversy
among these parties would be extant. The record taken as a
whole, however, including briefing and argument, has per-
suaded us that the parties have no dispute on the crucial point.

   Given the lack of an actual dispute, this suit is not justicia-
ble. Article III’s case-or-controversy requirement "limit[s] the
business of federal courts to questions presented in an adver-
sary context and in a form historically viewed as capable of
resolution through the judicial process." Flast v. Cohen, 392
U.S. 83, 95 (1968). Accordingly, federal courts are prohibited
from issuing advisory opinions. Id. at 96 ("[T]he implicit poli-
cies embodied in Article III . . . impose the rule against advi-
sory opinions[.]"). In order for a suit to be justiciable, and not
an advisory opinion, there must be an actual dispute between
adverse parties. See United States v. Johnson, 319 U.S. 302,
304-05 (1943) (holding that "the absence of a genuine adver-
sary issue between the parties" meant that the case was not
justiciable); Muskrat v. United States, 219 U.S. 346, 361
            SHENANDOAH VALLEY NETWORK v. CAPKA               15
(1911) (stating that federal courts may only decide "actual
controversies arising between adverse litigants."). Because
such a dispute is lacking here—and because we cannot issue
an advisory opinion—we have no authority to adjudicate this
suit.

   Similarly, this suit is not justiciable because appellants
have not demonstrated an injury or imminent threat of injury.
A justiciable controversy exists only where a plaintiff has
shown "that he ‘has sustained or is immediately in danger of
sustaining some direct injury’ as the result of the challenged
official conduct and the injury or threat of injury [is] both
‘real and immediate,’ not ‘conjectural’ or ‘hypothetical.’" City
of Los Angeles v. Lyons, 461 U.S. 95, 101-02 (1983) (citations
omitted); see also Lujan v. Defenders of Wildlife, 504 U.S.
555, 560 (1992) ("[By injury in fact we mean] an invasion of
a legally protected interest which is (a) concrete and particu-
larized, . . . and (b) actual or imminent, not ‘conjectural’ or
‘hypothetical[.]’" (citations omitted)). Accordingly, in O’Shea
v. Littleton, 414 U.S. 488 (1974), the Court declared a suit
nonjusticiable because "the threat of injury from the alleged
course of conduct [was] simply too remote to satisfy the case-
or-controversy requirement and permit adjudication by a fed-
eral court." Id. at 498.

   Likewise, here, the prospect of appellants’ alleged injury —
that the Agencies might not consider site-specific alternatives
to lane-widening at Tier 2—is sufficiently remote that we
have no authority to consider appellants’ request. There is
simply nothing for this court to adjudicate. NEPA does not
permit us to prescribe outcomes either now or in the future,
but neither would it allow us to proscribe in the present pro-
ceeding even the consideration of future environmental
impacts. Either the prescription of outcomes or the proscrip-
tion of consideration would not only be contrary to the statute,
but would raise a live and present controversy between the
parties. Neither circumstance being present, there remains
16             SHENANDOAH VALLEY NETWORK v. CAPKA
nothing to dispute and we are satisfied that no justiciable con-
troversy lingers. Accordingly, the appeal is dismissed.*

                                                             DISMISSED




   *The gist of the district court’s ruling is that the review process should
be allowed to move beyond Tier 1 to Tier 2. Because vacatur is an equita-
ble remedy, U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18,
29 (1994), and because the balance of factors reveals no good reason to
vacate the district court’s ruling, we decline to do so.
