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NEPA CHALLENGES: THE HORRID MESSAGE

NEPA CHALLENGES: THE HORRID MESSAGE. JACK F. GILBERT ATTORNEY-ADVISOR FHWA OFFICE OF CHIEF COUNSEL. BEFORE WE GET STARTED. You all do Very Good Work Good Stewards of the Environment Doing the Right Thing Still Subject to a Challenge. NEPA CHALLENGES.

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NEPA CHALLENGES: THE HORRID MESSAGE

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  1. NEPA CHALLENGES: THE HORRID MESSAGE JACK F. GILBERT ATTORNEY-ADVISOR FHWA OFFICE OF CHIEF COUNSEL

  2. BEFORE WE GET STARTED • You all do Very Good Work • Good Stewards of the Environment • Doing the Right Thing • Still Subject to a Challenge

  3. NEPA CHALLENGES • I will meditate the while upon some horrid message for a challenge William Shakespeare (1564–1616) Twelfth Night, act 3, sc. 4, l. 199-200; Sir Toby Belch.

  4. The Goals of a NEPA Challenge • Alteration • Minor or Major • Stop • Kill, Bury, Put to Sleep • Delay • Kill, Bury, Put to Sleep

  5. It Can Be Pretty Horrid • Senville v. Peters • City of Carmel v. US DOT • N.C. Alliance for Transp. Reform v. US DOT • AGUA v. FHWA

  6. Merrily We Sue Along • Lawsuits • Threat of a Lawsuit • Filing of a Lawsuit • Temporary Restraining Orders (TROs) • Preliminary Injunctions (PIs) • Summary Judgments • Hearings/Final Judgments • Appeals • Threats of Further Lawsuits

  7. Before the Lawsuit • Be Proactive not Reactive • Fully Engage with the Project’s “Opponents” • Maintain Project Flexibility • Assemble the Necessary Team • Educate the Public – Be on Message • Issue Spotting* • Respond Fully to All Comments • But Always Remember – Even if everything is done perfectly you can still be sued

  8. Defending the Lawsuit • Counsel must be knowledgeable • Coordination between State, Feds City, etc., and consultants • Remember there is but one audience – U.S. District Court • A litigation team - exec committee • A designated point of contact

  9. Lawsuit Rules or Murphy’s Law • It will take longer than you want • It will take longer than you think • It will take more time and money • It will not be easy • It will be personal

  10. Issue Spotting • Common Litigation Areas • Purpose & Need • Alternatives • Indirect Impacts • Cumulative Impacts • Air Toxics • Lack of Response to Comments • Administrative Record

  11. The Path to Lawsuit Success • Call the Attorney -- before the lawsuit is filed • Remember Public Comments are the map to any lawsuit • Document Document Document • Show Your Work • Administrative Record • This is what the Court sees

  12. Delay for Delay’s Sake • An incompetent attorney can delay a trial for months or years. A competent attorney can delay one even longer. * Evelle J. Younger (Substitute “project” in place of “trial”)

  13. CONCLUSION • To See the Project Completed You Need: • Legal Viability • Political Support • Public and Govt. Agencies • Economic Feasibility • To Address the Challenge You Need: • Integrated and strategic approach • Major investment of time and resources • Leadership, dedication and commitment

  14. FINAL CONCLUSION Thank You for Time and for Your Hard Work

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