On Monday April 18, preceding the American Association of State Highway
Transportation Officials (AASHTO) Standing Committee on the Environment
(SCOE) Annual Conference in Chicago, the second of two national
environmental document quality workshops was held. These daylong
workshops, sponsored by AASHTO, the American Council of Engineering
Companies (ACEC) and the Federal Highway Administration (FHWA), were
focused on several issues related to improving the quality of
environmental documents of transportation projects.

The first workshop held in Snowbird, Utah last June was essentially a
brainstorming session and official kick-off of the joint ASHTO-ACEC-FHWA
effort aimed at improving the quality of environmental documentation.
With the assistance of a variety of experienced practitioners from 43
State Departments of Transportation, consulting firms and FHWA,
including HQ, Division Office and Resource Center staff, the most
critical issues related to environmental document quality were
identified. In January 2005, three Task Teams were formed to focus
attention on the highest priority issues identified at the Snowbird
workshop, including: 1) legal sufficiency of environmental documents; 2)
environmental education and training, and 3) environmental document
quality and clarity, which includes alternative formats, information
organization and "reader friendly" approaches. The Chicago workshop
allowed the Task Teams to meet face to face for the first time and
generally discuss the subjects, identify important related issues and
agree on ways to provide needed assistance to the State DOTs,
consultants and FHWA in improving the overall quality of environmental
documentation.

The Legal Sufficiency Task Team is chaired by Lamar Smith, FHWA HQ
Office of Project Development and Environmental Review, and consists of
attorneys and environmental practitioners from the FHWA Office of the
Chief Counsel, consultant firms, the AASHTO Center for Environmental
Excellence (CEE) and State DOTs. The following is a general synopsis of
the Task Team discussion, conclusions and agreed upon future goals:

1.  It was generally agreed that legal sufficiency is difficult to
    define and that the "you know it when you see it" standard may be
    the best we can do for the following reasons: the "hard look" and
    "arbitrary and capricious" review standards are fact-based and
    project-specific, every project and situation will be different,
    legal sufficiency is not an "absolute" but based on professional
    judgment, and NEPA case law varies among the Federal Courts.

2.  The Task Team agreed that legal counsel should be involved in some
    projects earlier than the DEIS or FEIS stage and could come "in and
    out" of the project development process as the project moves from
    scoping to the ROD. FHWA, State, or private counsel could provide
    this assistance but the legal sufficiency review was the
    responsibility of the FHWA. On some projects, a minimal level of
    involvement or review at the DEIS or FEIS stage may be appropriate.
    The Task Team agreed to address and define the following: when and
    at what stage(s) legal counsel should be involved in certain
    projects, the role of legal counsel when involved, and the purpose
    of the involvement and review. In recognition that some projects
    will not require the same level of legal counsel involvement, it was
    agreed that a general practitioners guide highlighting some of the
    "warning signs" that indicate the need for a more robust involvement
    by legal counsel during the project development process would be
    beneficial.

3.  There was general agreement that some of the problems with the
    current legal sufficiency review process are related to the
    following: lack of consistent review practices; differences in State
    DOT and FHWA Division project development processes, the amount of
    time required to respond to comments that are not specific to legal
    issues, and lack of consistent direction concerning the level of
    analytical detail that should be included in NEPA documents.

4.  On the issue of documentation, the Task Team agreed that: some
    flexibility in document format of EISs was probably warranted,
    format change needed to be sensitive to resource agency review
    process and familiarity; a multiplicity of "creative" formats may
    confuse the courts, the public and resource agency reviewers and
    lead to additional legal sufficiency issues, use of appendices and
    incorporation by reference will allow more reader friendly
    documents, and consideration should be given to early and continuous
    preparation of the administrative records

For additional information please contact Lamar Smith at
<lamar.smith@fhwa.dot.gov> or 202-36-8994.