"Legal Sufficiency" of NEPA Documents for Transportation Projects

**Introduction**

In 2003, the American Association of State Highway and Transportation
Officials (AASHTO), the American Council of Engineering Companies (ACEC)
and the Federal Highway Administration (FHWA) joined forces in an effort
to improve the quality of environmental documents prepared for
transportation projects in compliance with the requirements of the
National Environmental Policy Act (NEPA)[^1]. This "environmental
document quality" initiative has been focused on the development and
dissemination of information and tools to assist practitioners
nationwide in improving the readability and usefulness of transportation
NEPA documents.

In 2003 and 2004, an AASHTO/ACEC/FHWA committee conducted a joint survey
of State Departments of Transportation (SDOT), engineering consultant
firms and FHWA. The survey informed future activities of the committee
and was followed by joint "environmental document quality" workshops
held in conjunction with the AASHTO Standing Committee on the
Environment's (SCOE) annual meetings in 2004 (Snowbird, UT) and 2005
(Chicago, Ill). Recognizing the varied and numerous causes of the
general decline in the overall quality of transportation NEPA documents
over the years, the AASHTO/ACEC/FHWA committee designated three
task-teams to address the established priorities of the initiative: 1)
improve the quality and clarity of NEPA documents; 2) address the "legal
sufficiency" of NEPA documents; and 3) improve training and education in
document preparation.

This "practitioner's guide" has been developed as one part of the
overall initiative, to specifically address the issue of legal
sufficiency of transportation NEPA documents. It is intended to provide
SDOTs, engineering consultants and FHWA staff with a better
understanding of the purpose of FHWA's legal sufficiency review, which
is required for environmental impact statements (EIS)[^2] and Section
4(f) evaluations[^3]. While Section 4(f) is mentioned in the context of
the legal sufficiency review requirement, the specifics of the process
related to the legal sufficiency of Section 4(f) documents are not
addressed in this paper.

The guide provides practical recommendations for improving the overall
quality and developing legally sufficient NEPA documents for
transportation projects. It is the result of a series of discussions and
deliberations of a group of experienced NEPA, transportation and
environmental professionals from SDOTs, FHWA, and engineering consultant
firms. It represents the current and "best thinking" of this group of
practitioners who are knowledgeable of the NEPA process, project
development, and the multitude of issues associated with producing and
reviewing environmental documents. It is intended as a practical guide
to inform the experienced, as well as the inexperienced, NEPA
practitioner. It is not official guidance and is not binding on any
agency.

Why is the legal sufficiency of NEPA documents important? The simple
answer is that the preparation of compliant environmental impact
statements, environmental assessments and Section 4(f) evaluations is a
legal responsibility. In terms of quality environmental documentation,
legal sufficiency involves more than a determination that the document
complies with minimum legal standards of NEPA and other procedural or
substantive requirements. In this context, legal sufficiency involves
identifying and addressing the potential and probable legal risks
associated with transportation project development and the preparation
of NEPA documents and other environmental documentation. The risks
associated with the project development process will likely be best
addressed by improving the overall quality, clarity and reasoning of
NEPA documents. These improvements can be achieved through format and
process flexibility and other innovative practices without compromising
legal standards. This will produce better public documents, improve the
ability to successfully defend the document (and project) if litigation
becomes a reality, and fulfill the intent of NEPA. Seeking expert legal
advice throughout the project and document development process is the
best way to achieve the broader purposes of legal sufficiency.

The guide is organized around three general themes related to the
preparation and review of legally sufficient NEPA documents: 1) the
legal sufficiency review; 2) some of the common trouble spots for legal
sufficiency determinations; and 3) what practitioners can do to help
create "better" documents, from a legal sufficiency perspective.

**1. Legal Sufficiency Review**

**What are "legal sufficiency" reviews and why are they required?**

> As a federal agency, the FHWA has a legal responsibility to carry out
> its mission in compliance with numerous Federal laws and regulations,
> such as NEPA and Section 4(f). To meet this responsibility, FHWA has
> adopted regulations requiring the legal sufficiency review of all
> final environmental impact statements (EISs)[^4] and final Section
> 4(f) evaluations[^5]. The requirement for a legal sufficiency review
> applies without regard to the likelihood of litigation, degree of
> controversy, project size or complexity.
>
> Legal sufficiency reviews are required, as a matter of routine, prior
> to approval of the final environmental document by the FHWA Division
> Administrator. In some cases, the legal review will be performed
> earlier in the process. It may be done concurrently with the FHWA
> Division office's routine review of the administrative draft of the
> final EIS or, depending on the project and other issues, be conducted
> at the draft EIS stage, at the discretion of the FHWA. Legal
> sufficiency reviews are conducted by FHWA attorneys located in one of
> FHWA's field offices and/or headquarters. These attorneys are familiar
> with the interpretations of NEPA law specific to those federal Courts
> of Appeals and District Courts with jurisdiction over the States for
> which the attorneys are responsible. The FHWA goal is to complete
> legal sufficiency reviews within 30 days.
>
> When conducting the legal sufficiency review, an FHWA attorney
> considers the likelihood of litigation and may focus on the specific
> issues that could likely be raised if the project were litigated. Even
> if there is little or no prospect of litigation, the reviewing
> attorney has an obligation to determine whether all applicable legal
> requirements have been satisfied. If a document is not in compliance
> with the applicable laws and requirements, the attorney's
> responsibility is to identify the problem and recommend steps to
> achieve compliance.
>
> Legal sufficiency reviews differ from other FHWA environmental
> document reviews and agency comments. Other types of FHWA document
> review include: 1) routine quality reviews conducted by Division
> Office staff during the preparation of every NEPA document, and 2)
> "prior concurrence" reviews, conducted by FHWA headquarters for those
> projects that meet the specific criteria in FHWA regulation (unusually
> complex, highly controversial projects, etc)[^6]. An FHWA attorney
> conducts the legal sufficiency review and the ensuing comments are
> clearly indicated as such. Legal sufficiency review comments may
> differ in substance from other FHWA comments because the attorney is
> assessing the document from the standpoint of legal standards and
> litigation risk, rather than technical sufficiency. The reviewing
> attorney assumes that all the technical information is correct and
> analyzes the document from the point of view of whether it was
> developed properly and answers the pertinent questions that reasonably
> could be asked. The review addresses the adequacy of the discussion of
> specific document elements, including purpose and need, alternatives,
> the scope of the environment affected, the responses to comments and
> fulfillment of essential coordination requirements.
>
> Legal sufficiency comments generally fall into the following
> categories:

-   Compliance with the elements of applicable laws, regulations and
    Executive Orders (Examples: Section 4(f), Section 404, Section 7,
    etc.). These are substantive comments that require attention,
    additional explanation or reference.

-   Consistency with important FHWA policies. (Examples: possible
    mitigation measures are not discussed, lack of evidence of
    coordination with other agencies or the public, etc.). Comments in
    this category must be considered and resolved before the document is
    approved.

-   Substantive questions or issues that require more information or
    explanation. (Examples: adequacy of record supporting elimination of
    an alternative, why an alternative is or is not feasible and prudent
    under Section 4(f), the basis for decision to prepare a FONSI rather
    than EIS, etc.). Comments that fit into this category should be
    addressed.

-   Clarification or editorial comments. (Examples: change the color of
    all water bodies on graphics from dark blue to a lighter tone;
    remove all sentences written in the passive voice). Generally,
    comments in this category are recommendations on ways the clarity of
    the document can be improved.

> **How should legal sufficiency comments be addressed?**
>
> How legal review comments are addressed likely depends on the nature
> of the comment. Just as other professionals have differences of
> opinion, so can lawyers. Because of the inherent differences among
> reviewers, differences among projects, as well as among court
> decisions, legal sufficiency review comments on one project may well
> be different from those on another project with similar issues.
>
> First, you should take the attorney's comments seriously and consider
> and analyze them thoroughly. If comments do not fit nicely into one of
> the four categories discussed above, or if it is not clear how the
> comment should be addressed or resolved, it is advisable to seek
> clarification from FHWA. This can be done through your local division
> office contact or the FHWA project development team representative.
> Prior to seeking such clarification, however, it is usually helpful to
> assess the time, cost and schedule implications of addressing each
> comment. Successive iterations of document revisions can be avoided by
> direct communication between the attorney and the project team. Once
> the comments have been addressed it is advisable to and helpful to
> prepare a table or matrix that includes the comment and how and where
> in the revised document it has been addressed. This may be a desirable
> practice for all substantive comments.

It is important to note that the written comments of legal counsel may
be privileged attorney-client communications. If the privilege exists,
these comments would not be subject to the Federal Freedom of
Information Act (FOIA), although the protections may be different under
state law. If these comments are not maintained strictly or are shared
with someone who is not a client, the privilege is lost. Further, there
are certain instances where FHWA chooses to waive this privilege and put
the comments in an administrative record as evidence of awareness and to
show how the issue was addressed. This is one way the court may be
satisfied that the lead agency took the requisite \"hard-look\" at an
issue and indeed was not making an arbitrary and capricious decision, as
discussed in the next question. Also, since the legal sufficiency review
itself is a regulatory requirement, evidence of the review should be
documented in the administrative record for the project.

**Is litigation risk considered in the legal sufficiency review?**

> For those projects that face potential litigation, the legal
> sufficiency review will generally involve consideration of litigation
> risks (i.e., issues that may be subject to legal challenge). An
> important part of the attorney's role in those cases will be to assist
> the project development team in identifying potential litigation risks
> and taking the necessary steps to reduce those risks. Often, those
> steps will involve additional efforts to strengthen certain areas of
> the NEPA documents themselves, and the administrative record, in terms
> of technical reports, correspondence and other materials.
>
> To fully appreciate the importance of considering legal risks,
> practitioners must also understand the standards of judicial review.
> Challenges to federal agency decisions typically are filed under the
> Administrative Procedures Act (APA)[^7]. Under this law, a court must
> defer or uphold the agency's decision, unless the court finds the
> decision to be arbitrary and capricious, an abuse of agency
> discretion, or otherwise not in accordance with law. This deferential
> standard of review means, in essence, that courts give agency
> decision-makers the benefit of the doubt. But it doesn't mean that
> courts simply rubberstamp agency decisions; they still must carefully
> review the record and determine whether it supports the decision. In
> other words, the record must show that the agency took a "hard look"
> at the environmental issues related to the project decision.
>
> Any assessment of litigation risk, particularly during the NEPA
> process, is inherently subjective and uncertain. The assessment
> involves a prediction about how unknown judges, at some unknown point
> in the future, might rule on claims by unknown plaintiffs, based on a
> record that has not yet been fully developed. Despite these
> uncertainties, it is possible to develop general conclusions about the
> degree of potential litigation risk for a project.
>
> Some of the factors considered in assessing litigation risk include: /

-   The likelihood that the proposed project will be challenged in
    court. This likelihood may exist because of an organized opposition;
    a history of problems with the project; or the proposed project has
    similarities to other litigated projects in the State, region or
    Nation.

-   The degree and grounds (environmental vs. "not in my backyard") of
    public or agency controversy related to the proposed project or
    location of the project.

-   The project involves complicated resource or regulatory issues.
    Examples include the probability of formal Section 7
    consultation[^8], environmental justice issues, complex Section
    404[^9] permitting issues, or any number of other substantive
    issues.

> Project size and cost are also considerations, but are relative
> measures and should be considered in light of the locale, the
> resources involved, applicable requirements and other context issues.
> Although small projects can be complex and controversial, large
> projects will almost always be both.
>
> **Is there a degree of litigation risk that is acceptable?**
>
> This is a very difficult question to answer accurately. Every
> transportation project EIS has a degree of litigation risk associated
> with it. There is a close relationship between legal sufficiency and
> legal "defensibility". The legal sufficiency review attempts to
> determine that the NEPA or Section 4(f) process, including related
> procedures and documents has met the agency's own standards for
> adequacy and meets the Federal Administrative Procedure Act (APA)
> arbitrary and capricious test. In making a legal sufficiency
> determination, the attorney is saying, in essence, that the process
> was "good enough" to be defensible, but not that the process or
> document is "bulletproof" against all possible legal challenges. A
> document that is found legally sufficient may still involve a degree
> of risk if the project is litigated.
>
> As previously noted, there is a baseline level of legal sufficiency
> that must be achieved in order for an attorney to issue the "finding".
> If a document does not meet the standards, an attorney will advise
> against its release until flaws are corrected or improvements are
> made. Examples are relatively few and far between, but in those
> situations where a project document clearly fails to meet the minimum
> legal requirements, the reviewing attorney must suggest ways of
> bringing it into compliance.
>
> Commonly, attorneys reviewing a document will also identify issues
> that are not considered to be fundamental legal flaws, but still
> present a degree of risk or require some thought and attention. In
> these situations, the attorneys provide advice to their clients about
> the degree of risk and suggest ways for the risk to be reduced. In
> some cases, they provide information and advice to assist
> decision-makers in managing the litigation risks. Whether a particular
> litigation risk is acceptable will depend on the opinions and
> experience of the attorneys and project approving officials.

2.  **Common trouble spots for legal sufficiency determinations**

**What are some of the more common legal sufficiency issues?**

> Practitioners should be familiar with the most common issues related
> to legal sufficiency and/or litigation risk since attorneys frequently
> raise these types of concerns during review of NEPA documents.
> Awareness of these concerns will help to expedite the legal
> sufficiency review by allowing the project team to anticipate and
> address the types of concerns that might otherwise be raised during
> the review.
>
> A sampling of some of the major concerns and issues are listed below:
>
> [Segmentation]{.underline}. FHWA NEPA regulations require that project
> alternatives have logical termini, independent utility and not
> restrict alternatives for future transportation improvements[^10]. The
> end-points of the project alternatives are usually described in a NEPA
> document, but in many cases there is little explanation related to the
> choice of these limits or termini, except in reaction to comments
> regarding the scope and boundaries of the study. To establish a solid
> foundation for the study, it is helpful to include (in the NEPA
> document or a supporting memo) justification for the project or
> alternatives termini, based on the criteria established in FHWA
> regulations[^11]. The discussion of how and why the termini were
> chosen helps support the established purpose and need and provides
> evidence of the project's independent utility within these boundaries.
> It also is evidence that the agency took the requisite "hard look" at
> all relevant issues.
>
> [Study Area Boundaries]{.underline}. Study area boundaries play a key
> role in the NEPA process, yet often are defined vaguely or without any
> clear rationale. Also, the same study area is sometimes used for all
> resources, despite the fact that the project's impacts may extend over
> different geographic areas depending on the resource being considered
> (e.g., air quality vs. noise).
>
> [Purpose and Need]{.underline}. The purpose and need for a project is
> the linchpin of a NEPA study, and thus often becomes a target in
> litigation. Some common concerns include:

-   Defining the project goals too narrowly -- thus leaving the study
    open to criticism that the purpose and need statement improperly
    narrowed the range of alternatives.

-   Defining the project goals too broadly -- e.g., as "improving
    mobility in the project area." Such vague statements make it
    difficult to identify the actual purpose of *this particular*
    project, as opposed to any other project in the same area.

-   Using all the nine factors listed in the FHWA's Technical
    Advisory[^12] purpose and need guidance as the nine goals of the
    project. The FHWA guidance simply identifies the types of goals that
    should be considered; it doesn't mean that the same nine goals
    should be incorporated into the purpose and need for every project.

-   Ignoring the policy goals established in relevant transportation,
    land use, and other planning studies. These policy objectives
    provide an important part of the foundation for the purpose and need
    and should be explicitly considered when defining a project's
    objectives.

> [Alternatives Screening]{.underline}. Along with the purpose and need,
> the development and screening of the range of alternatives is a
> frequent criticism and potential target in litigation. In many cases,
> the record supporting the development and elimination of an
> alternative is relatively sparse. The reasons given for eliminating
> alternatives at the screening stage need to be logical and well
> supported in the record. Some common concerns include:

-   Eliminating alternatives based on generalities, without any analysis
    to back up the findings (e.g., "does not sufficiently relieve
    congestion").

-   Eliminating alternatives based on outdated information -- e.g.,
    previous studies that may no longer be reliable.

-   Failing to re-consider screening decisions later in the study
    process, when new information has been developed that may put the
    screening decisions in a different light. For example, if an
    alternative is eliminated based on cost, it may be necessary to
    update the cost estimate for that alternative later in the study --
    particularly if information is developed that shows the costs of
    alternatives still under consideration have increased to the same
    level that was considered unacceptable at the screening stage.

-   Over-reliance on "weighting and scoring" techniques. Numerical
    rating systems, sometimes known as "weighting and scoring," can be
    useful in the alternatives screening process, particularly if
    numerous alternatives are being considered. However, the results of
    these techniques can be misleading if important information is not
    available or if too much or too little weight is given to certain
    factors. For example, a scoring technique that does not take into
    account regulatory factors such as Section 404 and Section 4(f) may
    not provide an informed basis for screening alternatives. This does
    not mean that scoring techniques should be avoided; it does mean
    that they should be used with care.

> [Indirect and Cumulative Impacts.]{.underline} Over the last few years
> this issue has been the focus of a great deal of NEPA litigation.
> Indirect and cumulative impact requirements of the NEPA process were
> established in 1978 with the adoption of the Council on Environmental
> Quality (CEQ) Regulations. All practitioners should be familiar with
> the guidance and case law that exists. The guidance includes FHWA's
> Interim Guidance on Indirect and Cumulative Effects, CEQ's Guidance on
> Consideration of Past Actions in Preparing National Environmental
> Policy Act Cumulative Effects Analysis, and EPA's Consideration of
> Cumulative Impacts In EPA Review of NEPA Documents. One should also be
> familiar with the CEQ's handbook on Considering Cumulative Effects
> under the National Environmental Policy Act. There exists a great deal
> of other reference materials besides these. The point here is that
> this analysis in any environmental document should be thoroughly
> reviewed and considered in light of the available guidance, case law
> and also the particular issues that may arise in the project's area.
>
> [Compliance with Procedural Requirements]{.underline}. Legal
> sufficiency reviews often focus on the quality of the NEPA document
> itself. Yet the laws and regulations that govern the environmental
> review process also include other procedural requirements. For
> example, both Section 106 (historic) and Section 7 (endangered
> species) require consultation with other agencies regarding impacts to
> protected resources. If the record contains no documentation showing
> how these procedural requirements were met, it will be difficult in
> litigation to demonstrate compliance. One way to address this concern
> is to include a summary in the relevant section of the NEPA document
> that reviews the consultation process, with references to key dates,
> participants and documents in the record. It is particularly important
> to explain how the consultation process was resolved -- i.e., include
> specific information regarding the event that concluded the process
> (e.g., an MOU for historic resources). It is also helpful to include
> correspondence related to these procedural requirements in an appendix
> to the NEPA document.
>
> [Compliance with Substantive Requirements]{.underline}. Legal
> sufficiency reviews must take into account the substantive
> requirements that have the potential to control the ultimate project
> decision. In particular, the important substantive requirements
> include Section 4(f) and Section 404, both of which contain specific
> findings that need to be made if a project will impact protected
> resources. For projects subject to these requirements, seemingly minor
> changes in wording can substantially affect legal defensibility. The
> sections of the NEPA document that address compliance with these
> regulatory requirements should be developed with regular input from
> legal counsel, and should be carefully reviewed by legal counsel
> before the NEPA document is published.
>
> [Responses to Comments]{.underline}. For high-profile projects,
> comments received on a draft NEPA document can be voluminous and
> responses to the comments are often developed and prepared by large
> teams. While the division of labor can help make the process more
> efficient, it also introduces the potential for inconsistent
> responses, as well as the potential for "rote" responses that fail to
> address the substantive issues raised in the comments. In addition,
> schedule and budget pressures can sometimes deter the project team
> from undertaking the additional work that is needed to respond
> substantively to the issues raised in the comments. To avoid those
> problems, the project schedule and budget should be based on realistic
> assumptions about the level of effort needed to develop thorough
> responses to comments.
>
> [Responses to Resource Agency Concerns]{.underline}. During long and
> controversial projects there can develop tensions between the action
> agencies and the resource agencies. This is not surprising given their
> missions are different. However, sometimes this relationship can break
> down to the point where the action agency does not respond adequately
> or professionally to the resource agency\'s comments. Often judges
> will look to these resource agencies as the public sector experts and
> failure of the action agency to rebut these comments with professional
> responses is often fatal to the project.

##  How is the administrative record considered in a legal sufficiency review? 

> Since the administrative record is a fundamentally important element
> of the project decision-making process, the content of the
> administrative record is inherently important to the legal sufficiency
> of the NEPA document. Under the APA, in order to defend its decisions
> when sued, FHWA must establish an *Administrative Record* to show that
> its decision is in accordance with the law, is not arbitrary or
> capricious, or an abuse of discretion. Clearly, every project and
> every document will be different in terms of what constitutes the
> administrative record, but there are some basic practices or
> "guidelines" that generally apply.
>
> First, the formal and official documents that are fundamental to the
> decisionmaking process must be included. These include the NEPA
> documents (EA, DEIS, FEIS and ROD) and other documents supporting or
> referenced in the NEPA documents, such as public hearing transcripts,
> technical reports, etc. These are the prescriptive documents that
> would be conspicuous if absent from the administrative record. Next,
> the record must include all related correspondence; meeting minutes
> and references that document decisions, factual bases, and compliance
> with NEPA process components, such as public involvement and
> interagency coordination. In the administrative record it is
> acceptable, even advisable, to err on the side of inclusion, when the
> information is directly related to any of the above items, or when it
> otherwise contributes to evidence of the deliberative (NEPA or project
> development) process. Documentation of contrary opinions or
> conflicting data and the resolution of same, are critical. When the
> relevance of the information item is less direct, or the relevance of
> the item to the "project story" or "decision" is very limited or can
> otherwise be represented by other items in the administrative record,
> then exclusion is reasonable.

In summary, a good administrative record should fully reflect how and
why the agency reached its decision. Because the administrative record
itself can become very sizable, and is by nature generated by many
different people at a variety of locations over many months or years, a
project-specific plan for managing the administrative record is
necessary. The lead decision-making agency should be given the
opportunity to approve the administrative record plan, very early in the
project development process.

> **Does overall document "quality" affect legal sufficiency?**
>
> The same characteristics that make an EIS clear and understandable to
> the general public and project decision-makers also make it easier for
> an attorney to review and reach a conclusion of legal sufficiency, or
> a judge to uphold an agency's decision. If the document is
> disorganized, poorly written or incomplete it will be more difficult
> to assess regulatory compliance and determine the degree of litigation
> risk. Bad grammar in and of itself may not be a legal matter, but for
> an attorney trained in the careful use of language it is an
> unavoidable distraction and almost certain to elicit comments, even
> though this is not the purpose of their review. Poor organization
> makes it hard to find information and check for consistency. Sloppy
> writing, excessive use of jargon and obtuse or missing conclusions
> will make it harder for an attorney (or anyone else for that matter)
> to understand what the document is saying. Missing or incomplete
> information could mean longer review times, since the attorney cannot
> evaluate what is not there. Further, poorly written or organized
> documents may cause a reviewing judge to wonder if the substance of
> the document is suspect.

Sometimes during legal sufficiency review, FHWA attorneys will make
editorial or other comments that are intended to make the document
better, notwithstanding that the document may be "legally sufficient" as
written. Especially if the document is likely to be the subject of legal
challenge, an attorney will look for reasonable analysis of pertinent
environmental issues and clear rationale for decisions. Document quality
and clarity simply makes it much easier for the reviewing attorney, and
ultimately a judge, to understand that the decisions are reasonable and
based on the demonstrable facts and the applicable law, i.e., that the
decision-maker took a "hard look" at the environmental issues. Also,
poor quality documents may not be considered legally sufficient because
the public, the decision-makers or a judge could not reasonably be
expected to understand the document.

**3. What practitioners can do to create "better" documents from a legal
sufficiency perspective.**

**How would early attorney involvement improve legal sufficiency?**

Creating a high quality and legally sufficient document can be a complex
undertaking, and as discussed above involve clearing many different
substantive and procedural hurdles. One way to improve the quality of
the document and avoid findings of legal insufficiency and also make
environmental documents stronger is to have early attorney involvement
in the NEPA process. Early attorney involvement means that an attorney
familiar with NEPA law as it relates to transportation projects will be
involved in the project development process throughout the entire
process. This involvement may be as part of the project development team
or as a routine participation with the team at key stages in the
process.

> Early attorney involvement is supported by the premise that practicing
> preventive law provides peace of mind and serves the best interest of
> the project and the public, and allows needed changes to be made at a
> time when they will be easier to make and before certain positions or
> commitments have been presented to the public and other agencies. In
> addition to the active and early involvement of an FHWA attorney, the
> project sponsor may enlist the services of its own attorney on the
> project team. The most important qualification is that the attorney be
> knowledgeable about NEPA and the substantive and procedural
> environmental requirements.
>
> Early attorney involvement will:

-   Help ensure that the information contained in the document is
    consistent with the most recent legal interpretations of NEPA law.

-   Help address and pre-empt potential litigation risks and issues
    before problems develop.

-   Provide timely consideration, consistency and appropriate production
    and compilation of necessary materials for the administrative
    record.

-   Provide assistance in drafting and preparing a project\'s
    environmental documents, which should minimize reviewer comments and
    thus expedite document development and processing.

> Legal advice should be sought and received at the earliest useful
> opportunity. This should occur well before the time that attorneys are
> typically called upon to defend a completed environmental document. By
> no means is there an easy or simple test for when this opportunity
> will be, but in most instances, simply asking whether an attorney
> should be involved is usually an indicator that one should be. Public
> controversy, project size and/or cost, and potential resource issues
> and impacts are some of the most common things to consider.
>
> **What is the role of an attorney engaged in early legal
> involvement?**
>
> The following are some suggestions for how State and Federal agencies
> can make efficient and effective use of early attorney involvement:
>
> 1\. During scoping, work with the attorney to identify key project
> decision points in advance and have the attorney be prepared to
> provide legal input as those points occur. Some potential points are
> class of action determinations, range of alternatives, 4(f)
> determinations, use of planning level documentation during NEPA, and
> other decisions that have a great influence on the NEPA scope of
> documentation. After consulting with its own attorney, the project
> sponsor should consider obtaining additional guidance or concurrence
> from an FHWA attorney.,
>
> 2\. Get attorney input in setting up a coordinated system for
> maintenance of project documentation. Complex projects generate
> thousands of pages of project information, some of which may be part
> of the project's administrative record, and some of which may not.
> Some of the documents will remain in the primary custody of the
> project sponsor, and some will be retained by FHWA. Much of the
> information, especially in the future, will be electronic and need to
> be maintained in ways that control public access to confidential
> information. Working out the process in advance of the project will
> eliminate or substantially reduce any future confusion as to what is
> the record of the project and where it is.
>
> There are some administrative record-related practices that can be
> used early on to improve the quality of the NEPA process and therefore
> the legal sufficiency of the document. First, the attorney can be
> consulted in the development of the administrative record-preparation
> plan, as noted previously. Second, the contents of the administrative
> record can be periodically shared with the attorney in the form of an
> organized "contents" or outline. Sharing such an outline can also
> serve as a "trigger" if certain activities or interim process
> milestones need additional attention.
>
> 3\. Foster an atmosphere in which asking questions in advance is
> preferable to fixing problems down the road. Often, the prevailing
> attitude is that asking an attorney for input is to be avoided unless
> absolutely necessary. This "pay me later" approach is
> counter-productive for several reasons. First, problem avoidance is
> usually faster and less expensive that problem remediation. Second,
> legal requirements are somewhat fluid and flexible. For example, just
> because a particular alternative was considered reasonable for one
> project does not mean the same alternative is reasonable for another.
>
> 4\. Provide documents to the attorney for review at the internal
> administrative stage. This is true whether it is a DEIS or a FEIS.
> While legal sufficiency review is only formally required for the FEIS,
> attorney review at the DEIS stage will provide an excellent start in
> the development and preparation of a legal sufficient FEIS. Also, once
> the DEIS has been distributed to the public there is no way to address
> any problems that exist in that document. It makes sense to address
> concerns as early as possible and make timely changes. More
> constructive work can be done at the DEIS stage than can be done at
> the FEIS stage and, therefore, this is the point in time at which most
> FHWA attorneys would like to see the NEPA document.
>
> 5\. Have the project sponsor's attorney perform a preliminary legal
> sufficiency review and share his or her comments with the FHWA
> attorney. It may be helpful for these attorneys to discuss the
> comments or issues with each other prior to providing them to the
> project development team.
>
> 6\. Have a quality review process at both the SDOT and FHWA Division
> Office that will \"certify\" that the document has been professionally
> reviewed and believed to be legally sufficient by the professional
> staff.

**Conclusion**

The FHWA legal sufficiency review is required by regulation for certain
NEPA documents to assess and ensure the legal adequacy of the Federal
decision-making process. Because of this fact, these reviews should be
thought of as a normal and necessary part of the project development
process.

Legal sufficiency depends on substantive content, procedural compliance,
and to some degree overall document quality and readability. These
reviews will assist FHWA and the SDOTs in understanding the litigation
risks associated with a particular project and associated environmental
document and administrative record. A legally sufficient NEPA document
does not, however, eliminate the risk of legal challenge, or guarantee
success if a project is litigated.

The early involvement in the project development process of attorneys
experienced in NEPA, can be a key factor in reducing litigation risks
related to environmental documentation by opening lines of communication
on key issues early and positively. Early involvement by appropriate
legal counsel will also help to avoid delays in established
documentation and project delivery schedules.

Questions and comments concerning this paper should be directed to Lamar
Smith of FHWA (<lamar.smith@fhwa.dot.gov>), 202-366-8994.

**Appendices**

> **References**

# Kussy, Edward V. "Presenting and Defending Administrative Records", February 1992.

> Synthesis of Data Needs for EA and EIS Documentation -- A Blueprint
> for NEPA Document Content
>
> Re:NEPA online Community of Practice
> [http://nepa.fhwa.dot.gov](http://nepa.fhwa.dot.gov/)
>
> FHWA Environmental Websites
> [http://www.environment.fhwa.dot.gov](http://www.environment.fhwa.dot.gov/)
>
> **Legal Sufficiency Task Team**

+-----------------------------------+----------------------------------+
| Lamar S. Smith, CEP,              | Shannon Eggleston                |
|                                   |                                  |
| Team Leader, Federal Highway      | Director, Center for             |
| Administration                    | Environmental Excellence         |
|                                   |                                  |
| Office of Project Development and | Program Director for Environment |
| Environmental Review              |                                  |
|                                   | AASHTO                           |
+-----------------------------------+----------------------------------+
| Michael D. Brehm, P.E.            | William G. Malley\               |
|                                   | Akin Gump Strauss Hauer & Feld   |
| Principal, Brehm Environmental    | LLP                              |
| LLC                               |                                  |
+-----------------------------------+----------------------------------+
| David S. Mattern, AICP            | Willard (Bill) C. McCartney,     |
|                                   | Ph.D.                            |
| Parametrix, Inc                   |                                  |
|                                   | Assistant V.P.- NEPA Practice    |
|                                   | Leader                           |
|                                   |                                  |
|                                   | Michael Baker Jr., Inc.          |
+-----------------------------------+----------------------------------+
| Kathy Ames                        | Lawrence (Lance) P. Hanf\        |
|                                   | Senior Agency Counsel\           |
| Deputy Director, Office of        | FHWA, USDOT                      |
| Planning & Programming            |                                  |
|                                   |                                  |
| Illinois Department of            |                                  |
| Transportation                    |                                  |
+-----------------------------------+----------------------------------+
| Michelle W. Fishburne, PE\        | Rima E. Lewis\                   |
| Associate / Project Manager\      | Attorney Advisor, Office of      |
| LOCHNER                           | Chief Counsel\                   |
|                                   | Federal Highway Administration   |
+-----------------------------------+----------------------------------+
| Megan Stanley                     | Jack Gilbert                     |
|                                   |                                  |
| PB Consult                        | Attorney Advisor, Office of      |
|                                   | Chief Counsel\                   |
| Washington, DC                    | Federal Highway Administration   |
+-----------------------------------+----------------------------------+
| Robert Downie,                    | Harold Aikens                    |
|                                   |                                  |
| Assistant General Counsel         | FHWA Office of the Chief Counsel |
|                                   |                                  |
| Florida Department of             | Federal Highway Administration   |
| Transportation                    |                                  |
+-----------------------------------+----------------------------------+
| Bill Hauser, Administrator\       |                                  |
| Bureau of Environment\            |                                  |
| New Hampshire Department of       |                                  |
| Transportation                    |                                  |
+-----------------------------------+----------------------------------+

[^1]: 42 U.S.C. 4332; with implementing guidance at 40 CFR 1500-1508

[^2]: 23 CFR 771.125(c)

[^3]: 49 U.S.C 303 with implementing regulations at 23 CFR 771.135; For
    more information on Section 4(f), see FHWA's Section 4(f) Policy
    Paper, March 2, 2005.

[^4]: 23 C.F.R. 771.125(b)

[^5]: 23 C.F.R. 771.135(k)

[^6]: For additional information on prior concurrence, refer to the FHWA
    guidance memorandum "EIS Prior Concurrence Procedures" (October 3,
    2001); <http://environment.fhwa.dot.gov/guidebook/pcguidance.htm>

[^7]: 5 U.S.C. 552

[^8]: Endangered Species Act

[^9]: Clean Water Act

[^10]: 23 C.F.R. 771.111(f)

[^11]: 23 CFR 771.....

[^12]: