SEVEN KEYS TO LEGAL SUFFICIENCY

1. SEVEN KEYS TO LEGAL SUFFICIENCY From your friends at HCC

2. Evaluate risks and know when to call your lawyer

3. Evaluating Risks • Risk analysis is NOT an evaluation of whether or not FHWA can break the law. • Risk analysis IS a logical evaluation that balances the degree of analysis and study with the likelihood of litigation.

4. Risk Factors • Known controversy. • Importance of project. • Agreement or disagreement by other agencies. • Unique issues.

5. When do I call the lawyers? • Belief that FHWA will be sued. • Presence of opposition groups. • Unsure of procedure. • Need early engagement for processing speed.

6. When do I call, cont’d • Complicated least overall 4(f) harm evaluation. • Programmatic 4(f) evaluations. • Issues of first impression. • Other agency’s lawyers are involved. • Problems crafting P&N statement.

7. Good Recordkeeping • Procedures to ensure good recordkeeping: • Watch for trouble spots and common problems. • Establish a document retention and maintenance system. • Engage your counsel.

8. Common problems • Basis for decision not set forth; • Factors considered are poorly described; • Inadequate or no response to negative information or comments; • Documents assume understanding of technical principles; • Internal deliberations not documented (“I know we talked about it.”);

9. Common Problems, cont’d • Incomplete email chains; • Unidentifiable documents (no date or author); • Doodling and scribbling on documents; • Loss of records due to staff turnover or passage of time.

10. Good Recordkeeping cont’d • Understand what comprises the project file and what comprises the administrative record. • The administrative record should reflect what the agency did and why it acted. • Know what to include in an administrative record. • Know what to exclude from an administrative record.

11. Good Recordkeeping cont’d • Keep records (don’t throw everything away, don’t delete everything); • Consider keeping a “project” email box; • Back up electronic records; • Save emails (both sent and received); • Keep a clean copy of meeting agendas;

12. Good Recordkeeping cont’d • Write your name and date on notes; • Write the identifying information on documents before putting them into the file; • Flag documents that will not become part of the administrative record; • Do not wait until a lawsuit is filed to begin compiling the record.

13. Good Recordkeeping cont’d • Substantive considerations: • Document and track all major decisions in writing. • Conclusions without factual support are worthless. • Make sure that issues and conflicts are addressed and resolved in writing. • Correct any documentation problems BEFORE issuing a decision document. Remember: If it is not in writing, it does not exist.

14. Purpose & Need • A good purpose and need statement is essential. • Look for the best way to set out the problems (needs) and solutions (purpose). • A project’s purpose and need statement is often a target in litigation.

15. Purpose & Need, cont’d • Common problems with P&N statements: • Too narrow. • Too broad. • Limited to listing nine factors from the technical advisory. • Ignores established policy goals.

16. Alternatives Analysis • A rigorous alternatives analysis is critical. • Also a frequent target in litigation. • Need adequate documentation of development and elimination of alternatives.

17. Alternatives Analysis, cont’d • Common problems: • Elimination based on generalities. • Elimination based on outdated information. • Failure to reconsider screening decisions. • Over-reliance on weighting and scoring techniques.

18. Alternatives Analysis, cont’d • Alternatives must be considered in EAs, as well as EISs. • An EA should discuss reasonable alternatives for the project, including the no-action alternative.

19. Keys to Public Involvement Process • Fully address comments, and recognize the importance of the public involvement process. • Tips for responding to comments: • Do not gloss over difficult issues; • Address all the issues raised in the comment;

20. Toll Roads and PPPs • Toll Roads and Public Private Partnerships (“PPPs”) play a role in both the purpose and need for a project and in an alternatives analysis. • When to include in P&N? • When to factor into alternatives analysis? • Consult your counsel!

21. Keys to Public Involvement Process, cont’d • If a comment does not warrant a response, explain why; • Make sure responses are consistent; • Make sure responses to agency comments are thorough and comprehensive; • Provide adequate documentation of internal issue resolution.

22. Keys to Public Involvement Process, cont’d • Tips for effective public involvement: • Be aware of FHWA’s public involvement regulations; • Initiate public involvement activities early in the process; • Ensure that the public involvement process is sufficiently flexible to respond to unique and changing conditions or circumstances.

23. Emerging Issues • Recognize and address emerging issues, such as: • Mobile Source Air Toxics (MSATs) • Climate change and greenhouse gas emissions. • Engage technical experts in the Resource Center and at Headquarters for help.

24. Emerging Issues, cont’d • Regarding incomplete or unavailable information, the CEQ Regulations state: • In evaluating reasonable foreseeable significant adverse impacts with incomplete or unavailable information, the agency shall make clear that such information is lacking. 40 CFR 1502.22 . • Two scenarios: • Scenario 1: Incomplete information is relevant AND costs of obtaining it are not exorbitant. Here, the information must be included. 40 CFR 1502.22 (a).

25. Emerging Issues, cont’d • Scenario 2: Incomplete information is relevant, but unknown or costs of obtaining it are exorbitant. Here, four factors must be addressed: • Information is incomplete or unavailable; • Relevance of the information; • Summary of existing credible scientific information; • Evaluation of impacts based on theoretical approached or research methods. 40 CFR 1502.22(b).

26. Emerging Issues, cont’d • Need to make best efforts regarding the four factors when there is incomplete or unavailable information. • No judicial deference if there is nothing in the record. • As always, engage your counsel!

27. 4(f) Evaluations • A substantive statute – dictates outcome. • New 4(f) rule – rules get deference.

28. “Least overall harm” analysis when all alternatives use 4(f) resources. 1) Ability to mitigate. 2) Severity of harm after mitigation. 3) Significance of 4(f) properties. 4) Views of officials with jurisdiction. 5) Degree alternative meets P&N. 6) Impact to non-4(f) resources. 7) Substantial cost differences .

29. New “feasible and prudent” Definition • An alternative is NOT prudent if it: • Compromises P&N unreasonably; • Involves unacceptable safety or operational problems; • After reasonable mitigation, it: • Causes severe social, economic, or environmental problems; • Causes severe disruption to established communities;

30. New “feasible and prudent” Definition, cont’d • Causes severe disruption to E.J. populations; • Involves costs of extraordinary magnitude; • Causes unique problems or unusual factors; OR • A totality of more than one of the above factors which is individually minor, but collectively is a unique problem or an impact of extraordinary magnitude.

31. FONSIs • A Finding of No Significant Impacts is a decisional document. • Equal to an EIS Record of Decision. • Treat them with equal respect. • Legal help is always available.

32. QUESTIONS?