NEPA CHALLENGES: THE HORRID MESSAGE JACK F. GILBERT ATTORNEY-ADVISORFHWA OFFICE OF CHIEF COUNSEL

BEFORE WE GET STARTED You all do Very Good Work You all do Very Good Work Good Stewards of the Environment Good Stewards of the Environment Doing the Right Thing Doing the Right Thing Still Subject to a Challenge Still Subject to a Challenge

NEPA CHALLENGES I will meditate the while upon some horrid message for a challenge I will meditate the while upon some horrid message for a challenge William Shakespeare (1564–1616) Twelfth Night, act 3, sc. 4, l ; Sir Toby Belch.

The Goals of a NEPA Challenge Alteration Alteration Minor or MajorMinor or Major Stop Stop Kill, Bury, Put to SleepKill, Bury, Put to Sleep Delay Delay Kill, Bury, Put to SleepKill, Bury, Put to Sleep

It Can Be Pretty Horrid Senville v. Peters Senville v. Peters City of Carmel v. US DOT City of Carmel v. US DOT N.C. Alliance for Transp. Reform v. US DOT N.C. Alliance for Transp. Reform v. US DOT AGUA v. FHWA AGUA v. FHWA

Merrily We Sue Along Lawsuits Lawsuits Threat of a LawsuitThreat of a Lawsuit Filing of a LawsuitFiling of a Lawsuit Temporary Restraining Orders (TROs)Temporary Restraining Orders (TROs) Preliminary Injunctions (PIs)Preliminary Injunctions (PIs) Summary JudgmentsSummary Judgments Hearings/Final JudgmentsHearings/Final Judgments AppealsAppeals Threats of Further LawsuitsThreats of Further Lawsuits

Before the Lawsuit Be Proactive not Reactive Be Proactive not Reactive Fully Engage with the Project’s “Opponents” Fully Engage with the Project’s “Opponents” Maintain Project Flexibility Maintain Project Flexibility Assemble the Necessary Team Assemble the Necessary Team Educate the Public – Be on Message Educate the Public – Be on Message Issue Spotting* Issue Spotting* Respond Fully to All Comments Respond Fully to All Comments But Always Remember – Even if everything is done perfectly you can still be sued But Always Remember – Even if everything is done perfectly you can still be sued

Defending the Lawsuit Counsel must be knowledgeable Counsel must be knowledgeable Coordination between State, Feds City, etc., and consultants Coordination between State, Feds City, etc., and consultants Remember there is but one audience – U.S. District Court Remember there is but one audience – U.S. District Court A litigation team - exec committee A litigation team - exec committee A designated point of contactA designated point of contact

Lawsuit Rules or Murphy’s Law It will take longer than you want It will take longer than you want It will take longer than you think It will take longer than you think It will take more time and money It will take more time and money It will not be easy It will not be easy It will be personal It will be personal

Issue Spotting Common Litigation Areas Common Litigation Areas Purpose & NeedPurpose & Need AlternativesAlternatives Indirect ImpactsIndirect Impacts Cumulative ImpactsCumulative Impacts Air ToxicsAir Toxics Lack of Response to CommentsLack of Response to Comments Administrative RecordAdministrative Record

The Path to Lawsuit Success Call the Attorney -- before the lawsuit is filed Call the Attorney -- before the lawsuit is filed Remember Public Comments are the map to any lawsuit Remember Public Comments are the map to any lawsuit Document Document Document Document Document Document Show Your WorkShow Your Work Administrative RecordAdministrative Record This is what the Court seesThis is what the Court sees

Delay for Delay’s Sake An incompetent attorney can delay a trial for months or years. A competent attorney can delay one even longer. * An incompetent attorney can delay a trial for months or years. A competent attorney can delay one even longer. * Evelle J. Younger Evelle J. Younger (Substitute “project” in place of “trial”)

CONCLUSION To See the Project Completed You Need: To See the Project Completed You Need: Legal ViabilityLegal Viability Political SupportPolitical Support Public and Govt. Agencies Public and Govt. Agencies Economic FeasibilityEconomic Feasibility To Address the Challenge You Need: To Address the Challenge You Need: Integrated and strategic approachIntegrated and strategic approach Major investment of time and resourcesMajor investment of time and resources Leadership, dedication and commitmentLeadership, dedication and commitment

FINAL CONCLUSION Thank You for Time and for Your Hard Work