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Legal Sufficiency Enhancements

Shortening Project Delivery Toolkit

Legal Sufficiency Enhancements

Decisions made early in planning and project development are often the root causes of problems identified later in the environmental review process when NEPA and Section 4(f) documents undergo legal scrutiny. Consultation with FHWA environmental attorneys at early decision points can help decision makers avoid problems later, saving time and costs. This initiative will also identify the most common problems in document development, their root causes, and the measures preparers can take to avoid the problems.

Fast Track to Legal Sufficiency.

The Legal Sufficiency Enhancement Initiative (LSEI) encourages Federal-Aid and Federal Lands Highway Division Offices (Divisions) to use early legal involvement as a tool to help expedite the environmental review process. Early involvement of environmental attorneys on large, complex, or potentially controversial projects will facilitate early identification of problems through reviews of draft environmental documents and other consultation activities. This will allow any needed changes to occur earlier in the project development process, when such changes can be better accommodated within the project schedule. Final environmental documents that reflect the results of early involvement will require less review time. The result is reduced overall environmental review time and better environmental documents.

Legal Sufficiency Review

Legal sufficiency reviews are required for all Final Environmental Impact Statements (FEIS) and most Final Section 4(f) Evaluations prior to FHWA approval. These reviews evaluate whether a Federal-Aid highway project's Section 4(f) Evaluation and National Environmental Policy Act (NEPA) document are all consistent with legal requirements. When they are not, revisions are required—and changes can be time-intensive.

If the required legal sufficiency review of a FEIS or Final Section 4(f) Evaluation is the first time that Counsel is consulted about the project or evaluates project environmental documents, the likely result is a disruption to the planned project delivery schedule. There is a better way.

Shortening Project Delivery Time

Considering the environmental aspects of a project at the onset of planning and project development saves considerable time. Attorney review of pre-release internal administrative drafts of Section 4(f) Evaluations and NEPA documents allows for early identification and expedited solution of problems.

Involving an FHWA attorney early offers these advantages:

  • Reviewing drafts minimizes rewriting of the "final" document. Corrections can be made before documents are finalized, reducing the potential need for multiple legal reviews of a "final" environmental document.
  • Overall review time and costs are reduced. Corrective actions can occur when the project schedule can best accommodate them.
  • Conflicts are resolved early. Because concerns can be identified, addressed and solved early in the project development process (or even during planning), project implementation issues can be corrected early or avoided entirely.
  • Litigation risk is reduced. Final documents meet legal requirements. Controversies are minimized, since concerns are addressed early.

Implementing the LSEI

To make the legal sufficiency review process smooth, time-effective, and cost-effective, the FHWA will implement three new practices under the LSEI:

  • Early problem identification and resolution ensure that environmental issues do not hold up project schedules.
  • Improved communication and coordination ensure that Divisions and their partner agencies receive the guidance they need, when they need it.
  • Timely and effective FHWA attorney meetings ensure that all parties understand legal comments on environmental documents and work together to resolve them. Meetings serve as an opportunity to create workable action plans and schedules.

Better communication means better coordination

By working closely with the Divisions, FHWA attorneys can offer guidance as it is needed. After reviews, Divisions and States can respond to FHWA comments with the support of legal counsel.

As another element of effective communication, FHWA attorneys will categorize each comment on an environmental document by its level of importance:

  • Must be satisfactorily addressed in order to find a document legally sufficient
  • Important to overall document quality
  • Editorial or optional

This will help Divisions and States budget time effectively: they can focus first on what is most important.

Action plans that work.

Within 15 days of the Division's receipt of FHWA attorney comments on any administrative draft of a Draft Environmental Impact Statement (DEIS) or other draft environmental document, FHWA attorneys will facilitate scheduling of a coordination meeting. At this meeting, the Division can review, discuss, and clarify FHWA attorney comments with the experts. The required steps for success will be made clear. In appropriate cases, the Division and FHWA attorney may decide to meet with the State as well.

By clarifying the legal issues and the needed responses, FHWA attorneys help their client Divisions resolve any significant issues in a timely way. This will allow Divisions to work with the States to develop a realistic action plan as well as a workable revision schedule for FHWA comments.

The 15-day Rule

With all parties working together in a productive way throughout the NEPA process, if legal comments have been adequately addressed in the final administrative draft of the FEIS or Section 4(f) Evaluation, then a final legal sufficiency determination will be made within 15 calendar days of the attorney's receipt of the document. Accelerating the final legal sufficiency determination, as well as the overall time-savings from early problem resolution, should provide the FHWA Divisions a strong incentive to initiate early legal involvement.

There are two key requirements for this 15-day rule:

  • The Division has initiated early and continuous legal involvement on the project. Early involvement includes, but is not limited to, FHWA attorney review of administrative draft environmental documents.
  • FHWA attorneys conclude the identified legal issues have been satisfactorily addressed. Legal guidance on all essential issues must have been followed.

LSEI works

With successful early involvement, transportation planners and project managers can be confident their environmental documents will meet legal sufficiency requirements. LSEI integrates legal review into cost-effective and time-effective project planning and development.

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Page last modified on August 16, 2013.
Federal Highway Administration | 1200 New Jersey Avenue, SE | Washington, DC 20590 | 202-366-4000