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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Pages 4-15
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S E C T I O N 1 Guidance for Managing Legal Risks in the NEPA Process This guidance is intended to assist federal and state transportation agencies in managing legal risks in the environmental review process for transportation projects, particularly highway projects, as part of a comprehensive approach to project risk management. The intended audience for this guidance includes Federal Highway Administration (FHWA)
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Methods for Managing Legal Risks This guidance summarizes a range of strategies that federal and state transportation agencies have used to manage legal risks on complex projects. Many of these strategies may seem obvious, but experience shows that applying these strategies effectively - and in a timely manner - takes considerable forethought and discipline.
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o Train the project team on issues related to document management, public-records laws, administrative records, and litigation preparation.
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• Meet with agencies, after receiving comments on DEIS, to discuss their concerns and how they might be addressed, rather than just responding to their comments in writing in the FEIS. • Provide opportunities for resource agencies to review and comment on drafts of technical reports and relevant chapters of the NEPA document while the documents are in production.
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o Use the scoping process to generate a wide range of potential alternatives for consideration in the screening process. o Before screening begins, develop and document the methodology that will be used in the screening process, including screening criteria.
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10. Anticipate and Manage Post-NEPA Litigation Risks • After the completion of the NEPA process, remain alert for developments that could give rise to the need for a reevaluation or supplemental EIS; avoid taking actions that inadvertently create new opportunities for litigation.
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# Issue Indicators of Higher Risk √ 2.1 Funding Gap • There is a large gap between available funds and estimated project costs. • There is substantial uncertainty and/or political controversy about how to pay for the project.
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# Issue Indicators of Higher Risk √ 4.2 Number • The number of potentially reasonable alternatives is very large - e.g., a vast number of potential alignments within a large geographic area. 4.3 Design Standards • There is disagreement regarding the design standards that alternatives must meet - e.g., ability to avoid impacts by modifying design.
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# Issue Indicators of Higher Risk √ 5.5 Section 4(f) • The project is likely to require a ‘full' Section 4(f)
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# Issue Indicators of Higher Risk √ 5.9 MSATs • The project is likely to require a quantitative analysis of mobile source air toxics (MSATs) e.g., it involves a high volume of diesel truck traffic in close proximity to residential populations.
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# Issue Indicators of Higher Risk √ 5.13 Emerging Issues • There is uncertainty or disagreement about whether an environmental issue should be analyzed and/or about what methodology should be used. Potential examples: o Contribution to climate change through increased greenhouse gas emissions o Effects of climate change on the project (e.g., sea level rise)
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# Issue Indicators of Higher Risk √ 7.1 Experience • The project team lacks experience with managing the NEPA process for complex, controversial projects. 7.2 Support • The project lacks high-level support within the government entities responsible for developing and funding the project.
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