# Presentation: 865530

## SEVEN KEYS TO LEGAL SUFFICIENCY

- From your
- friends at HCC

## Evaluate risks and know  when to call your lawyer 

## 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.

## Risk Factors 

- Known controversy.
- Importance of project.
- Agreement or disagreement by other agencies.
- Unique issues.

## 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.

## 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.

## Good Recordkeeping

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

## 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.”);

## 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.

## 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.

## 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;

## 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.

## 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.*

## 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.

## 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.

## Alternatives Analysis

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

## 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.

## 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.

## 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;

## 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!

## 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.

## 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.

## 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.

## 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).

## 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).

## 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!

## 4(f) Evaluations 

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

## “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 .

## 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;

## 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.

## 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.

- QUESTIONS?