# Presentation: 814268

## Slide 1

## 2006 Environmental Conference: Litigation Overview   

- 2006 Environmental Conference: Litigation Overview

- Lance Hanf, Senior Agency Counsel
- HCC-WE, San Francisco
- 415/744-8272

## Introduction 

- 	What are the roles of HCC, the State, SDOJ & your office?
- 	How to better defend our environmental decisions & documents
- 	The primary laws here are NEPA, 4(F) and the Administrative Procedures Act.

## Agenda

- What the laws require
- How we can better protect our decisions if challenged

## Overview 

- Jurisdiction in Federal Court
- Represented by USDOJ/U.S. Atty. Office
- Standing to sue
- Who are the parties
- Prayer & remedies

## Jurisdiction

**Jurisdiction**

-   Power to hear case
-   Must sue federal govt.        in Federal Court
- Most cases originate in U.S. District Court

- Parties have right to        appeal decision
- No right to Supremes
- Move to Federal Court
- Circuit Courts bind lower courts

## Standing to Sue

**Standing to Sue**

- Constitutional Harm
- Injury in fact
- Prudential Harm
- Zone of interest
- Look to Purpose of Statute

## The Parties

**The Parties**

- Plaintiffs
- State
- FHWA
- Other Fed. Agencies
- Interests may not be the same.

**Representation**

- U.S. Dept. of Justice
- U.S. Atty. Sub office
- By law they represent Feds. in Fed. Courts.
- No set rule on which office does what, but loosely based on National vs. local

**Representation ****(cont’d)**

- FHWA Counsel
- Assist in admin. Record
- Sole counsel in MSPB & EEOC & DOTBCA
- Draft motions
- FHWA Experts
- Who is whose client?

## Damages

**Damages**

- APA no monetary Damages
- But see EAJA
- Remand to do again
- Monetary Damages in personnel and Tort cases.

## Court’s Power

**Court’s Power**

- Injunctions
- Remand to Agency if found unlawful or arbitrary
- Attorney’s fees (size issue) agency must be found not substantially justified. GOE $

## Slide 13

## Personal Liability

**Personal Liability**

- USDOJ Representation IF in scope of employment
- Criminal actions almost never in your scope. See ESA
- FHWA will pay for part of your professional insurance

## Administrative Record: All information that went into ROD or FONSI...

- Notes
- Studies
- Minutes
- Articles
- Guidance

- Planning/AQ info.
- Demonstrative info.
- E-mails
- Any form of information that we relied on

## Role of Division

**Role of Division**

- Search files
- Search e-mail and back-up tapes
- Write facts and narrative
- Put items in chronological order
- Review court documents like plaintiff’s statement of facts
- Serve as resource

## “That ringing in your ears - - I think I can help.”

## Role of FHWA Counsel

**Role of FHWA Counsel**

- Coordinate with DOJ
- Know the Law, esp. 49 & 23 USC
- Draft Pleadings & Motions
- Work with Division
- Work with State AG’s Office
- Formulate Strategy

## AdministrativeProcedures Act:   the door to sue the government

- Final agency actions
- Arbitrary & capricious or unlawful
- Courts may not substitute their judgment for the agency’s
- Deference to Agency

## Do you hear me?

## Focus on Issue

- Narrow issue, limited record
- Plaintiffs can add to record
- FHWA must certify that it relied on info.
- Hard to add to record later
- Can put on CD-ROM
- Not all filed with Court

## NEPA Problems

**NEPA Problems**

- Bad purpose & need
- Not providing reason for eliminating alts.
- Not looking at reasonable range of alts.
- Cumulative impacts
- Indirect impacts
- Conclusions w/o facts or studies
- Segmentation

## NEPA Problems (cont’d)

**NEPA Problems** (cont’d)

- Not citing to studies (summary & location)
- Resource Agency disagreements
- FHWA not conducting independent review
- Consultant contact for certain type of document
- Legacy Issue

## 4(f) Problems

**4(f) Problems**

- Substantive statute (less deference)
- Not reviewing feasible and prudent w/ EA
- Not providing basis for eliminating alternatives (extraordinary factors)
- Not doing Statement
- Not doing all possible planning to mitigate harm

## NEPA Rules

- Hard look
- Procedural not substantive
- Environmental impacts not economic or social
- Deference, if reasonable and in record
- Burden on plaintiffs

## Focus on Issues

**Focus on Issues**

- Narrow issue, limited record.
- Plaintiffs can add to record
- FHWA must certify that it relied on info.
- Hard to add to record later
- Can put on CD-rom
- Not all filed with Court

## Summary

- Need to use Administrative Record to our advantage
- Use attorneys at PDEIS Stage
- Focus on issues and controversy

## For more information...

- Other training sessions: NHI, USDOJ & private groups
- NEPA books, *Law Review* articles, CEQ, EPA and FHWA website
- Me

## Davis v. Mineta, 302 F.3d 1104 (10th Cir. 2002)

- Won in U.S. Dist. Ct., lost in the 10th Cir. (EA/4(f))

## Issues lost

- Contracted for a FONSI by a certain date.
- Limited geographic scope with 4(f)
- Cumulative impacts of noise, 4(f), bisects parks, new bridge, added traffic could lead to a significant impact.
- Impact of phasing
- Cumulative alternatives: mass trans., TDM
- Induced growth impacts (with or without)

## Slide 31

## Federal Highway Administration Western Legal ServicesSan Francisco, California