Guidance for Managing NEPA-Related and Other Risks in Project Delivery, Volume 2: Expediting NEPA Decisions and Other Practitioner Strategies for Addressing High Risk Issues in Project Delivery (2014) / Chapter Skim
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S E C T I O N 2 Backgrounder: Case Law and Case Studies of Legal Risk in the NEPA Process Introduction The National Environmental Policy Act (NEPA) applies to all Federal activities – including highway projects – that receive funds from the federal government, as well as to projects that require various types of federal approvals and permits.
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opposition. This presents a dilemma both for the project sponsor and FHWA in determining the scope of the NEPA document.
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Case Law There are a myriad of issues in the NEPA process that can confront transportation officials when planning improvements to an existing roadway/bridge or constructing a new roadway/bridge project. Some arise during the course of the NEPA process itself, but often, as explained in the Introduction to this Section, these issues can be identified early on, before or concurrently with the formal start of the NEPA process.
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alternatives, agencies may not define the objectives of their actions in terms so "unreasonably narrow" that only one alternative from among the environmentally benign ones in the agency's power would accomplish the goals of the project, thus making the EIS a mere formality.13 In recent years, courts have upheld an EIS statement of purpose and need where: • A project's statement of purpose and need was premised, at least in part, on the influence of the local metropolitan planning organization and county transportation plan.14 • A project's stated purpose mentioning a "highway" did not prevent the agencies from considering non-highway alternatives, and the project's stated needs were the product of a thoughtful, deliberative interagency and public participation process that balanced transportation needs with environmental concerns.15 • The agencies' statement of purpose and need for a bridge replacement project was defined to reflect the regional transportation needs into the future.16 • A statement of purpose and need limiting the project to a southern crossing of a river, where the agency determined an existing crossing to suitably serve the central and northern portions of the river, was not unduly narrow.17 Thus, if the statement of purpose and need for the project will be controversial (for example, if the statement of purpose and need relates to a highway project, and the community prefers a transit project) , then it is essential that the project's purpose and need is well justified.
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planning process. Therefore, the statement of purpose and need provides an opportunity to explain the linkage between the proposed project and the transportation planning process and to demonstrate the extent to which the purpose and need for a project were developed to implement transportation planning decisions that have already been made through those processes.
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• Government did not consider appellant's favored highway alignment alternative but did select similar alignment alternatives for detailed consideration.33 • Finding FHWA did not incorrectly eliminate rail alternative where record demonstrated agency considered various combinations of alignments and modes of transit, including rail.34 In contrast, an agency's range of alternatives was found to be inadequate where the discussion of a proposed project's "no build" alternative incorrectly included effects of the proposed action,35 where the agency rejected a proposed viable alternative based on a justification for which all alternatives posed the same risk,36 and where the agency rejected an alternative that partially met the need for a proposed highway project.37 FHWA regulations demonstrate the importance of the identification and evaluation of alternatives early in the NEPA process. FHWA encourages project sponsors to use an alternatives analysis process to focus alternatives examined in a DEIS to help streamline NEPA review.38 When Congress enacted SAFETEALU in 2005, it included extensive amendments to the federal transportation planning process, and provisions designed to accelerate the NEPA process.39 Under SAFETEA-LU, the lead agency establishes the range of alternatives in the EIS before the issuance of the DEIS.40 Participants in the NEPA process, such as participating and cooperating agencies, project supporters and opponents, affected local communities, etc., understand that much of the debate about a project plays out in the analysis and discussion of alternatives.
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National Register of Historic Places (even those that do not give rise to a "use" under Section 4(f)
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concurrently. These exceptions apply only if the park official or historic preservation officer concurs in the de minimis determinations of the FHWA and state department of transportation.
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the Section 106 process.61 Congress' adoption of the de minimis exception incorporates the linkage between the two statutes that had long been agency practice. The consultations that underpin Section 106, as well as Section 4(f)
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the project's potential effects on those species.71 Alternatively, the Service may determine that a species may be affected by the project, but the parties engage in an informal consultation process to determine the presence of the species; if the species is not present, no BA is required. A BA is also required for all federal actions which constitute a "major construction activity," whether or not a listed species is suspected in the area.72 A "major construction activity" is defined as "a construction project (or other undertaking having similar physical impacts)
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preferred alternative.81 These cases highlight the importance of early coordination with the Corps and the state agency charged with issuing the Section 401 Water Quality Certification required for the Section 404 Permit of the NEPA and Section 404 review processes to ensure that the range of alternatives meets the objectives of both. Almost all large highway projects in rural areas and many urban areas have at least some interaction with waters of the United States.
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Intercounty Connector Project The Intercounty Connector (ICC) project involved the proposed construction of a limited-access toll road connecting two Interstate highways (I-270 and I-95)
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attorneys from two private firms. The FHWA legal team included a dedicated attorney from the FHWA chief counsel's office.
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• Developing a shared vision for transportation and land use changes, through a collaborative planning effort facilitated by an independent group. This effort was known as the Growth Choices process and was facilitated by a non-profit organization, Envision Utah.
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• Using an innovative reader-friendly format for the EIS itself. This format involved increased use of graphics, a question-and-answer format for the text, a magazine-style layout, a lower level of detail in the main body of the FEIS, increased use of appendices for presenting technical data, and a strong emphasis on clear, jargon-free writing.
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The 11th Street Bridge Project The 11th Street Bridge Project is a $390 million undertaking to greatly improve the connection between the Southeast Freeway (I-295) and Southwest Freeway (I-895)
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tunnels, a traffic calming transition to city streets and reduced land and shoulder widths, with enhanced pedestrian connections to recreational and other facilities within the Presidio. The project is a collaborative effort of the California Department of Transportation, the San Francisco County Transportation Authority, and the Federal Highway Administration.
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These and other concerns led to the filing of a lawsuit while the environmental documents were being prepared. While the lawsuit was dismissed as prematurely filed, it clearly signaled the vigor of the opposition to the project.
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Identifying, Assessing and Addressing Risk NEPA requires an environmental impact statement for every major federal action significantly affecting the quality of the human environment.84 It does not require a specific result, only that an EIS be prepared.85 Even categorical exclusions and environmental assessments/findings of no significant impacts are not required by the statute, but the regulations have created devices to assist agencies in determining whether a particular federal action requires an EIS. Thus, NEPA is often referred to as a "procedural statute" because, by itself, it does not mandate any particular result, nor does it impose any specific legal constraints on decision-making.
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modifications that provide for better integration of the new facility into the affected area and/or that are supportive of long term community needs. Very often, public concerns about local impacts can lead to design modifications or added mitigation features.
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purpose and need, analysis of alternatives, induced development, and cumulative and indirect impacts, become more difficult to prepare and explain if the project involves many aspects that have to be considered concurrently. This increased difficulty does not make it wrong to propose projects with complex goals.
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oppose or have significant reservations about toll projects in general. Also, tolling can affect traffic patterns in a way that may result in environmental impacts that need to be considered.
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There are many examples of such communities initiating litigation to stop or modify a highway project.98 Litigation with such communities can be especially bitter and difficult to resolve amicably. Section 4(f)
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also follow guidelines issued by EPA (under Section 404(b)
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virtually impossible to proceed with the project (there is an exception process that permits extremely rare exemptions)
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agencies, are more likely to raise concerns resulting in delay if there is strong local opposition to a project. Concerns from one group are often adopted by others, or contribute to a collective intensification of concern or opposition.
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MAP-21.116 The MAP-21 amendment includes an increasingly severe number of steps involving the Secretary and, potentially, a different kind of referral to CEQ, designed to achieve timely resolution of an issue. Failure to do so could have budgetary consequences for the agencies involved.
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NEPA process will run more smoothly because later stage confrontations may be avoided or at least softened. The result can even affect the outcome of any litigation that might occur.
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Another key is to accommodate local concerns, especially those of local governments, wherever possible. Sometimes, it may be advisable to anticipate these concerns before the NEPA document is published so as to avoid an unnecessary confrontation.
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deficiencies, not limited to those issues that are of principle concern to their clients. Thus, court cases are sometimes decided on issues wholly unrelated to those that were debated during the NEPA process itself.
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Thus, when litigation is clearly expected, some of the individuals whom we interviewed recommended preparing for litigation from the outset, as the project progresses. This means coordinating with FHWA about what should be included in the Administrative Record.
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3. Are people angry about the project from the outset?
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to outside legal and technical experts for help. Some states do so to gain another perspective about how to proceed with an important project.
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We have provided a number of case studies where early anticipation of possible issues made for a more successful NEPA process and, in at least a couple of examples, actually persuaded project opponents to forego or abandon litigation. In other cases, this strategic approach made for a successful outcome in what could have been a very difficult NEPA lawsuit.
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