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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.

These Questions and Answers provide information on new LSEI procedures and are based on FHWA Office of Chief Counsel internal policy and best practices. Nothing in the LSEI documents (including these Questions and Answers, the Alternatives Analyses White Paper, and the Common Trouble Spots document) creates additional legal rights or requirements, provides new interpretations of the regulations, or supersedes existing agency guidance.

I. General Questions

1. What is the purpose of a legal sufficiency review?

The primary purpose of a legal sufficiency review is to ensure that the environmental document complies with NEPA, Section 4(f), and other relevant environmental laws and that the document is able to successfully withstand judicial scrutiny. The review considers whether the document demonstrates compliance with applicable laws and adequately explains any inconsistencies or non-compliance. The legal sufficiency review evaluates how litigation risk may affect document content. The review does not address the technical accuracy or technical adequacy of the analyses in the document, which are the province of the technical specialists, except to the extent that there are obvious gaps or inconsistencies that could cause the document to fail NEPA or Section 4(f) standards.

2. What is a legally sufficient NEPA document?

Elements of a legally sufficient NEPA document include, but are not limited to: (i) a well defined purpose and need statement that is not overly broad or impermissibly narrow; (ii) a project with logical termini and independent utility; (iii) an appropriate range of alternatives considered and a clear explanation for dismissal; (iv) direct, indirect and cumulative impacts analyses that use current methodologies and data, use appropriate study area boundaries, provide sufficient supporting information or results of analyses to establish the reasonableness of the conclusions concerning impacts, and that comply with relevant laws, regulations, guidance, and executive orders (e.g. Section 4(f), E.O. 12898 Environmental Justice, etc.); (v) appropriate public involvement and resource agency coordination efforts; (vi) a reasonable evaluation of issues raised in agency, public or other stakeholder comments; and (vii) an appropriate discussion of mitigation measures. In addition, a legally sufficient NEPA document will adequately describe the reasons for a factual conclusion or for a decision on a particular issue, and will account for new information or circumstances.

3. Are legal sufficiency reviews required for all environmental documents?

No. Legal sufficiency reviews are a regulatory requirement for all FEISs (23 CFR § 771.125(b)) and Section 4(f) Evaluations (23 CFR § 774.7(d)) prior to approval. While not required, reviewing administrative draft DEISs and RODs also is a good practice. For other documents, such as environmental assessments, categorical exclusions, programmatic Section 4(f) Evaluations, and Section 4(f) de minimus determinations, legal review may be appropriate if there is serious controversy or litigation threatened.

4. What are the FHWA Office of Chief Counsel's current procedures for legal sufficiency reviews?

The Office of Chief Counsel currently requires that attorneys provide timely counseling, advice, and assistance on environmental issues throughout the NEPA process, including an internal practice of completing legal sufficiency reviews within 30 days. This 30-day review period currently applies to all legal sufficiency determinations, including those projects utilizing early legal involvement.

5. How does LSEI change the Office of Chief Counsel's current legal sufficiency procedures?

The LSEI changes current legal sufficiency procedures in three ways:

  1. When Divisions receive legal sufficiency comments from Office of Chief Counselattorneys, the comments will be ranked from one to three by their level of importance. Additional information concerning the rankings is provided in Q&A 10.
  2. After legal sufficiency comments have been submitted, Divisions will be provided the opportunity to convene a coordination meeting with the attorney to discuss the comments and to prepare an action plan and schedule for revisions. The State and others may also be included in the meeting, if the attorney and the Division deem it appropriate.
  3. If the Division initiates early and continuous legal involvement (such as Office of Chief Counsel involvement in developing the statement of project purpose and need, identifying the range of reasonable alternatives for evaluation, addressing public comments after the DEIS, reviewing draft environmental documents), and Office of Chief Counsel concludes the critical legal issues identified by its attorney have been satisfactorily addressed, a legal sufficiency determination on the final FEIS or Section 4(f) Evaluation, and Office of Chief Counsel review of other final environmental documents, will be made within 15 days of the Office's receipt of the final document. This is a significant reduction from the 30-day final legal review comment period currently in place. This legal sufficiency review time savings is just a part of the overall time savings expected as a result of early Office of Chief Counsel involvement in the project development process.

6. How will the LSEI procedures, Alternatives Analyses White Paper, and Common Trouble Spots document improve the quality of environmental documents and contribute to the Every Day Counts goal of faster project delivery?

Preparation of NEPA documents is a partnership, and the schedule is not controlled by any single party. However, early and continuous legal involvement can contribute to faster project delivery by reducing overall environmental review time and costs, as well as avoiding or reducing project controversy and litigation risk. Early attorney involvement in decision-making on critical issues such as purpose and need and range of alternatives, as well as attorney review of administrative draft NEPA and Section 4(f) documents, will facilitate early identification of problems and allow any needed revisions to occur when the project schedule can more easily accommodate the work.

The Alternatives Analyses and Common Trouble Spots documents will help Divisions and States avoid the most common problems that generate attorney recommendations for further study or analysis during the legal sufficiency review. The results should be an overall reduction in the time required to prepare and finalize environmental documents, documents that provide better information to the public and other agencies, and more informed decisions by the FHWA Division Administrator.

Ranking legal sufficiency comments by their level of importance will enable Divisions to easily distinguish comments that would preclude a positive legal sufficiency determination from those that would not, thus allowing Divisions to work with the States to appropriately allocate time and resources to resolving the issues.

Providing an opportunity for a coordination meeting with the Division and, if appropriate, the State and its consultants to discuss comments will facilitate the timely resolution of legal concerns, even for those projects where early legal involvement has not been initiated.

7. Do the new LSEI procedures apply to both Federal-Aid and Federal Lands projects?

Yes, the new LSEI procedures apply equally to Federal-Aid and Federal Lands projects. Throughout this "Questions and Answers" section, the term "Division" is used to denote Federal-Aid and Federal Lands Highway Division Offices.

8. When will the new LSEI procedures take effect?

Categorization of Office of Chief Counsel comments began on September 1, 2010. Full implementation of LSEI began on October 1, 2010.

II. Questions Concerning Legal Sufficiency Comment Ranking

9. Will Office of Chief Counsel rank comments for all documents reviewed or just those where early legal involvement was initiated?

Office of Chief Counsel will categorize comments for all environmental documents reviewed.

10. How will HCC rank legal comments on environmental documents, and what do the rankings mean?

All Office of Chief Counsel review comments will be ranked as follows:

Rank Description
#1 Comments receiving a number one ranking are necessary to compliance with applicable laws, regulations, and agency guidance. These comments must be resolved to the satisfaction of the Office of Chief Counsel attorney for a document to be found legally sufficient.
#2 Comments receiving a number two ranking are important to overall document quality. Incorporation of these comments is strongly recommended but will not bar a positive legal sufficiency finding. Addressing these comments will help in legally defending the document even if the comments do not reveal a fatal flaw in the document.
#3 Comments receiving a number three ranking are editorial and concern ways in which the document can be improved. Incorporation of these comments is optional, but advised for overall quality.

III. Questions Concerning Legal Sufficiency Coordination Meeting

11. What is the purpose of the coordination meeting?

The purpose of the coordination meeting is for the Office of Chief Counsel attorney to provide an opportunity to clarify comments and answer any questions concerning the legal sufficiency comments. The Office of Chief Counsel offer of an opportunity to meet will be made within 15 days of the Division's receipt of the attorney's comments on any administrative (internal, pre-release) DEIS, FEIS, or other environmental document submitted for review.

12. Will Office of Chief Counsel provide the opportunity for a coordination meeting concerning all documents reviewed or just those where early legal involvement was initiated?

An opportunity for a comment coordination meeting will be provided for all environmental documents reviewed by Office of Chief Counsel.

13. Is the coordination meeting required for a legal sufficiency finding?

No. Convening a coordination meeting will benefit the Division and help it work with the State DOT, but is not required to obtain a legal sufficiency finding.

14. Should the State DOT or other project sponsor participate in the coordination meeting?

The Division and Office of Chief Counsel will decide if participation by the State DOT or others in the coordination meeting is necessary and appropriate. This decision will be made on a case-by-case basis.

IV. Questions Concerning Expedited Legal Sufficiency Review

15. What is early legal involvement?

Early legal involvement means the Division includes its Office of Chief Counsel attorney as part of the project team from the beginning of the project development process. Early involvement activities include, but are not limited to, attorney participation in development of the project's purpose and need statement, identification of the range of reasonable alternatives for evaluation, Office of Chief Counsel review of administrative (internal, pre-release) DEISs and FEISs, and Section 4(f) Evaluations. Consultation with Office of Chief Counsel occurs at key decision points throughout the environmental review process, and especially between the DEIS and FEIS. Decision points that likely merit early consultation are discussed in Q&A 19.

16. Why is early legal involvement important?

If the first review of a document by Office of Chief Counsel occurs near the end of the project development process, such as at the FEIS stage when a legal sufficiency review is required, then it is difficult to remedy any major problems without causing delay to the project's schedule. Attorney participation at key decision points and attorney review of administrative draft NEPA and Section 4(f) documents, such as administrative draft DEISs, FEISs, and EAs with controversy or 4(f) issues, would facilitate early identification of problems and allow any needed corrective actions to occur when the project schedule can more easily accommodate the work. A standard operating practice of requesting an initial legal review of an environmental document as soon as the administrative draft is complete should save time overall by reducing the likelihood of receiving substantive legal comments on the final document. This practice is expected to lead to better NEPA documents, less controversy, and lower litigation risk.

17. Who initiates early legal involvement and how?

The Division initiates early legal involvement by contacting the Assistant Chief Counsel for its State and requesting early legal involvement for the project. Together, they will decide whether early Office of Chief Counsel involvement is appropriate for the project, and the appropriate scope of attorney involvement.

18. Should early legal involvement be initiated for all projects?

Not necessarily. Office of Chief Counsel and the Divisions need to use resources wisely, as do the States. This requires strategic decision-making about when early legal involvement is appropriate. The following are examples of projects that might merit early legal involvement:

  1. All EIS projects;
  2. EA and CE projects involving, or expected to involve, substantial environmental, public, or interagency controversy;
  3. Any project that "normally required an EIS" under 23 CFR 771.115(a) and is being processed as an EA or CE, regardless of controversy;
  4. Projects requiring an individual Section 4(f) Evaluation; and
  5. Projects with an economic development, rather than a transportation, purpose and need.

19. When early legal involvement has been initiated, what kinds of decision points merit consultation?

The following decision points likely merit consultation with Office of Chief Counsel:

  1. Purpose and need;
  2. Identification of direct, indirect, and cumulative impacts and the scope of the analyses of those impacts or other evolving issues such as GHGs, MSATs and induced growth;
  3. Scope of FHWA NEPA review (often referred to as the Federal "handle") where the elements under FHWA jurisdiction are related to or support planned actions not within FHWA's jurisdiction (e.g., a project involving Interstate interchange modifications to address traffic needs of planned private development nearby);
  4. Formulating alternatives screening criteria, or issues related to other substantive statutes that influence the alternative selection, such as Section 4(f), the Clean Water Act, or the Endangered Species Act;
  5. Selection of reasonable alternatives for detailed analysis;
  6. Choice of methodology or mitigation, when disagreements exist with a Federal agency of special expertise or jurisdiction;
  7. Scope of impact analysis where there is disagreement with another agency or controversy exists;
  8. Determination of responses to major comments on DEISs and FEISs and on controversial or complex EAs;
  9. Section 4(f) determinations of least overall harm or Section 4(f) determinations that an avoidance alternative is not prudent;
  10. Scope and content of the ROD; and
  11. Any other decision point the Division believes may be critical to the outcome of a disputed issue that could affect the legal sufficiency of the NEPA or Section 4(f) document, or could be the subject of litigation.

20. What are the timeframes for legal review when early legal involvement has been initiated?

Whether or not early involvement has been initiated, initial review of administrative drafts of environmental documents will be completed in no more than 30 days. Resolution of legal sufficiency comments will depend on how much time it takes for the State DOT to prepare the necessary revisions, answer questions, or undertake additional recommended study.

If the Division initiated early and continuous legal involvement and has satisfactorily addressed legal issues identified by Office of Chief Counsel in its review of the administrative draft versions of environmental documents, including the draft FEIS or Section 4(f) Evaluation, then the Office of Chief Counsel review of the final documents will require only that the attorney confirm that the final document appropriately reflects the needed changes. In this situation, Office of Chief Counsel will make the legal sufficiency determination on the final FEIS or final Section 4(f) Evaluation, or complete its review of other final environmental documents, no later than 15 days after Office of Chief Counsel's receipt of the final document.

If early involvement was not initiated, the present 30-day review time will apply to the final EIS and Section 4(f) Evaluation documents. Office of Chief Counsel will do its best, however, to respond in a shorter time.

21. Are there exceptions to the 15-day legal sufficiency determination?

Yes, there may be instances where new issues or information arise that preclude a legal sufficiency determination on the final FEIS or final Section 4(f) Evaluation, or completion of Office of Chief Counsel review of other final environmental documents, within 15 days. The Division and its attorney may mutually agree on a different review schedule for a variety of reasons.

Federal Highway Administration
Office of the Chief Counsel
Alternatives Analyses White Paper
September 22, 2010

INTRODUCTION

If FHWA is to fulfill its mission "To Improve Mobility on our Nation's Highways Through National Leadership, Innovation, and Program Delivery," it must be more efficient. Improving project delivery times is one of the core components of Administrator Mendez's Every Day Counts initiative. Efficient and timely completion of environmental documents required by the National Environmental Policy Act (NEPA),1 most notably Environmental Impact Statements (EIS), should result in positive gains in reducing the overall project delivery schedule.

The alternatives analysis is "the heart" of the EIS.2 However, there are limitations on the required scope of an alternatives analysis. This white paper summarizes how FHWA can be most efficient in this area while still adhering to the goals and legal requirements of NEPA, discusses the principles FHWA counsel will apply when reviewing NEPA alternatives analyses, and suggests resources available from FHWA, the American Association of State Highway Transportation Officials (AASHTO), and others that offer more detailed information and examples of best practices. This white paper discusses strategies to minimize the number of alternatives that must be evaluated in detail, including:

  • The requirements for alternatives analysis in an EA are less rigorous than the requirements for EISs.
  • Alternatives eliminated during the transportation planning process may be omitted from detailed analysis in an EIS in certain circumstances.
  • The number of alternatives studied in detail in an EIS may be reduced through a screening process conducted during scoping.

WHAT IS THE APPROPRIATE CONSIDERATION OF ALTERNATIVES UNDER NEPA?

EISs - NEPA requires all Federal agencies to consider "all reasonable alternatives."3 For FHWA, this may include roadway alternatives such as alternative locations or alignments, the number of lanes, and whether or not the facility is tolled, as well as considering Transportation Management Systems and modal alternatives that are outside the purview of FHWA, such as rail.4 What is a "reasonable" alternative? While the CEQ regulations do not specifically define the term, it is generally understood to mean those technically and economically feasible project alternatives that would satisfy the primary objectives of the project defined in the Purpose and Need statement.5 If there are many possible reasonable alternatives, the guidance and case law clearly permit a focus on a "reasonable range" of project alternatives.6

ENVIRONMENTAL ASSESSMENTS (EAs) – The requirements for an alternatives analysis in an EA differ from those for EISs. The EA is intended to help the agency determine whether to prepare an EIS or a Finding of No Significant Impact (FONSI).7 The agency is required to "study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources."8 In cases involving EA/FONSIs, some courts have found the obligation to consider alternatives to be less than that required for an EIS, and consequently have allowed agencies to study a more limited range of alternatives, including the use of so-called "Build/No-Build" or "Project/No-Project" analyses.9 Where the agency seeks to utilize a Build/No-Build EA, the document should include a brief discussion of other alternatives considered and the basis for rejecting them during the scoping process. This is particularly true if the proposed project is controversial, or a permitting or consultation process required under another environmental law requires demonstration that avoidance of the resource is not possible before mitigation can be considered. For both EAs and EISs alike, the practitioner should also keep in mind that other statutes such as Section 4(f) can broaden the range of alternatives.10 For example, Section 4(f) and some other statutes have their own legal definitions of concepts affecting alternatives, such as "feasible" and "prudent."11

WHAT IS THE ROLE OF A CLEAR AND SUPPORTABLE PURPOSE & NEED STATEMENT?

The environmental documentation, be it an EA or EIS, "shall briefly specify the underlying purpose and need to which the agency is responding in proposing the alternatives including the proposed action."12 Since the case law is clear that an alternative is unreasonable if it does not meet the project's purpose and need (P&N),13 it is important to carefully craft a statement outlining what the needs or problems are that require the project, and how the project will remedy those problems – i.e., the project's purposes. Likewise, section 6002 of the Safe, Flexible, Efficient Transportation Equity Act: A Legacy for Users,14 requires a clear statement of the objectives that the proposed action is intended to achieve.15 The objectives are not limited to transportation needs, such as a reduction in congestion, but may include a non-transportation objective, such as economic development.16 The facts providing the basis for the P&N must be correct and supportable (e.g., do not state there is a safety problem if the data do not show this).17

FHWA and its co-lead agencies have wide latitude in deciding what the P&N of the project is,18 but they cannot craft a P&N statement so narrowly that it unduly restricts alternatives.19 Nevertheless, if the proposal is legitimately constrained because the identified need is narrow or specific by nature, then one can eliminate alternatives that do not meet such a project's very specific P&N. An example of this is the Woodrow Wilson Bridge project, for which the District of Columbia Circuit Court upheld the elimination of bridge alternatives with fewer than twelve lanes since FHWA's record demonstrated that fewer lanes would not meet the transportation needs.20 In short, the broader the problem that needs to be solved, the more likely it is that a broad range of alternatives (possibly including alternatives that only partially satisfy the P&N) may be found to be reasonable and accordingly will need to be analyzed.

CAN PROJECT ALTERNATIVES BE ELIMINATED DURING PLANNING?

Yes, in appropriate circumstances.21 The joint FHWA/FTA planning regulation in 23 C.F.R. Part 450 envisions that material produced by or in support of the planning process may be incorporated directly or by reference into NEPA documents if the requirements specified in section 450.318(b) are satisfied.22 Appendix A to the regulation, which is non-regulatory in nature, identifies key issues to consider before deciding to use such material.23 Projects subject to the requirements of 23 U.S.C. § 139 (mandatory for EIS projects, optional for other classes of action) must also meet the public and agency involvement requirements for NEPA decisions on P&N and range of alternatives. Among the important factors affecting the ability to use planning products in NEPA documents are:

  • Were FHWA and other relevant agencies involved in the planning process?
  • Were participants informed during the planning process that their only opportunity to consider certain alternatives may be during the planning process?
  • Was the material available to those agencies and the public during both the planning process and during NEPA scoping?
  • Was the proposed use of the planning material discussed and vetted during NEPA scoping?
  • Was a statement of project P&N fully developed in the planning process and then adopted in the NEPA process?
  • Is the information still relevant/valid?
  • Does the planning material adequately document the planning outcomes and the basis for them?

Alternatives eliminated during the transportation planning process, because they are not reasonable or feasible, as those terms are defined in the context of NEPA, or do not meet the proposed project's statement of P&N, can be omitted from the detailed analysis of alternatives in the NEPA document as long as the rationale for elimination is briefly explained in the NEPA document.24 Alternatives that remain "reasonable" after the planning-level analysis must be considered for the EIS, even when they are not the preferred alternative. When the proposed action evaluated in an EA involves unresolved conflicts concerning alternative uses of available resources, NEPA requires that appropriate alternatives be studied, developed, and described.25

When such planning decisions about alternatives are carried forward into the NEPA process, it is important to continue to monitor the information and provide any necessary updates in the NEPA document. This should be done both to ensure the accuracy of the information provided to decision-makers and other interested parties, and to minimize the possibility of successful challenges after the NEPA process is complete.

WHAT ROLE CAN SCREENING ALTERNATIVES DURING THE NEPA SCOPING PROCESS PLAY?

The number of alternatives studied in detail in an EIS may be reduced through a screening process conducted during scoping. Likewise, if there is a very broad or vast number of alternatives, the document can look at a reasonable range within those.27 While there is no standard methodology for such screening, HCC recommends a systematic process that eliminates those alternatives that obviously cannot meet the P&N;28 those with known major environmental problems;29 those that are not technically or economically feasible (as contrasted to simply not desirable);30 and those that are substantially similar to other alternatives already under consideration.31 Of particular importance is the need to use sound project cost estimation methods during screening to eliminate alternatives that are not economically feasible. The lead agencies cannot make a determination about an alternative's economic feasibility without supporting cost estimates and an analysis of likely revenue (funding) sources.

Since this screening is performed prior to undertaking the actual study of environmental impacts, the level of detail involved need not approach that of the EIS. The critical points are that the methodology selected be reasonable and that it be documented. For projects subject to 23 U.S.C. § 139 procedures, FHWA must also collaborate with the participating agencies when determining the methodologies and the level of detail to be used for the analysis of alternatives. An opportunity for public involvement in the determination of the range of alternatives is also required.32

A successful example of such screening is the Inter-County Connector project in Maryland, which used a "funneling" process to narrow over 300 alternatives identified during scoping to three alternatives that were studied in detail in the EIS.33 The funneling methodology was an iterative process that was carefully documented. In the first stage, alternatives were compiled from the scoping results. Next, the study team performed a preliminary screening of every alternative to determine whether it would generally meet the P&N and whether it presented incurable environmental or engineering obstacles. This resulted in 18 preliminary alternatives, including several non-highway alternatives including transit, land use changes, and improvements to existing roads. The third stage focused on each individual element of the P&N and assessed whether the potential alternative was likely to meet all P&N elements; this resulted in three alternatives that were then evaluated in detail in the EIS (two build alternatives and a no-action alternative). Public and agency input was sought during the funneling process and a technical report was prepared that was summarized and referenced in the EIS. When presented with this record, the reviewing court upheld the process because "[t]he record clearly indicates that Defendants adequately considered reasonable alternatives and engaged in a very thorough and collaborative process when deciding which alternatives would be eliminated."34

For some projects, it may become necessary to revisit the reasons for screening out a particular alternative as the EIS is developed. For example, a community organization may object to a particular alternative having been eliminated during the planning process. By re-examining the proposed alternative in greater detail than was initially done during screening, the agency can increase the defensibility of its decision whether or not to add the alternative to those being studied in detail. Another common reason to revisit alternatives previously screened out is compliance with Section 4(f). Accordingly, Section 4(f) should be one of the screening criteria used. If the preferred alternative would require the use of more than a de minimis amount of Section 4(f) property, the project applicant must demonstrate that there is no feasible and prudent alternative to using land from the protected property.35 This requires documentation of more substantial drawbacks, meeting the regulatory definition in 23 C.F.R. § 774.17, before an avoidance alternative may be eliminated from consideration. Likewise, the screening process should also include consideration of other substantive environmental statutes, such as section 404 of the Clean Water Act and section 7 of the Endangered Species Act.

WHAT NEEDS TO BE DOCUMENTED?

It is crucial that the alternatives selection process be discussed within the EIS itself. The discussion should be of sufficient specificity that the reader understands the rationale behind the decision that was made.36 If litigation ensues, FHWA's decision will be evaluated under a standard of reasonableness, meaning: Is there a reasonable explanation in the EIS for having excluded the plaintiff's favored alternative from consideration? If the material is voluminous, then the explanation may be summarized in the EIS and set forth in detail in the underlying record.

During the screening process described above, it is important that the administrative record (all of the documents directly or indirectly before the decision maker at the time the decision was made) describe the methodology and benchmarks -- technical and economic feasibility, consistency with P&N, analysis of environmental impacts -- used to gather, narrow and select alternatives. If the EIS relies on a separate technical report, the report can be incorporated by reference into the EIS.37 In addition, all documentation related to the development of the project alternatives during the planning and scoping stages should be retained and made available for public review upon request.38 For projects subject to section 139 procedures, this documentation must also include evidence that shows that both the public and agencies were afforded an opportunity for input into the P&N and the range of alternatives. Also, documentation must show that the lead agencies collaborated with participating agencies on the methodologies and level of detail used in the analysis of alternatives.

In cases where Federal agencies have been sued and lost, courts have focused upon the lack of clarity in the record and the lack of evidentiary facts to support the alternatives studied and to explain those which were eliminated.39 Courts generally applaud a step–by-step decision-making process that clearly illustrates how and why alternatives were screened out.40 One way to clearly illustrate the screening process is to provide a side-by-side comparison between those alternatives that are reasonable and those that are not in clear, concise language.41 Such an approach provides a proper defense and can prevent the project from being sent back to the drawing board by the court.42 Consistent use of methodology that relies upon factual determinations will also aid in the legal sufficiency review.

CONCLUSION

In conclusion, an effective project development process will begin to narrow the range of alternatives during the planning stage by following the procedures discussed above. During NEPA scoping, the potential project alternatives can be reduced to a reasonable range of alternatives through a systematic screening process. If properly documented, this approach to alternatives analysis can reduce the time and effort for that element of the NEPA process and will make the document more legally defensible.

ADDITIONAL RESOURCES (as of March 2010)

Federal Highway Administration Technical Advisory: Guidance for Preparing and

Processing Environmental and Section 4(f) Documents. T6640.8A. October 30,

1987, http://environment.fhwa.dot.gov/projdev/impTA6640.asp

NEPA and Transportation Decision-making: Development and Evaluation of Alternatives (FHWA), http://environment.fhwa.dot.gov/projdev/tdmalts.asp

AASHTO Practitioners Handbook 07: Defining Purpose and Need and Determining the Range of Alternatives for Transportation Projects (AASHTO, August 2007), http://environment.transportation.org/center/products_programs/practitioners_handbooks.aspx#6

CSS and the Project Development (Process Context Sensitive Solutions.org), http://www.contextsensitivesolutions.org/content/topics/process/project-development/

Improving the Quality of Environmental Documents (AASHTO, May 2006), http://environment.transportation.org/center/products_programs/improving_quality_nepa.aspx


1 42 U.S.C. § 4321 et seq.

2 40 C.F.R. § 1502.14.

3 23 C.F.R. § 771.123(c) and 40 C.F.R. § 1502.14.

4 Guidance on these requirements is located in FHWA's environmental toolkit, "Development and Evaluation of Alternatives" at http://www.environment.fhwa.dot.gov/projdev/tdmalts.asp

5 Question 2a in NEPA's Forty Most Asked Questions, 46 Fed. Reg. 18,026 (March 23, 1981).

6 See CEQ, Forty Most Asked Questions Concerning CEQ's National Environmental Policy Act Regulations, Question 1b, 46 Fed. Reg. 18,026 (March 23, 1981).; City of Alexandria v. Slater, 198 F.3d 862 (D.C. Cir. 1999), cert. denied 531 U.S. 820 (2000).

7 40 C.F.R. § 1508.9(a)(1); 23 C.F.R. § 771.119(a).

8 42 U.S.C. § 4332(E). See also 40 C.F.R. § 1508.9(b).

9 E.g., Native Ecosystems Council v. U. S. Forest Serv., 428 F.3d 1233 (9th Cir. 2005); Mt. Lookout-Mt. Nero Prop. Prot. Ass'n v. Fed. Energy Regulatory Comm'n, 143 F.3d 165 (4th Cir. 1998); Sierra Club v. Espy, 38 F.3d 792 (5th Cir. 1994); North Carolina v. Fed. Aviation Admin., 957 F.2d 1125 (4th Cir. 1992); Friends of the Ompompanoosuc v. F.E.R.C., 968 F.2d 1549 (2d Cir. 1992); Olmsted Citizens for a Better Cmty. v. U. S., 793 F.2d 201 (8th Cir. 1986).

10 Section 4(f) of the Department of Transportation Act of 1966, Pub. L. 89–670, 80 Stat. 931, codified at 49 U.S.C. § 303 and 23 U.S.C. § 138; See also Davis v. Mineta, 302 F.2d 1104 (10th Cir. 2002);

11 See 23 C.F.R. § 774.17.

12 40 C.F.R. § 1502.13.

13 E.g., Associations Working for Aurora's Residential Environment v. Colorado Dep't of Transp., 153 F.3d 1122, 1130 (10th Cir. 1998); Laguna Greenbelt, Inc. v. U. S. Dep't of Transp., 42 F.3d 517, 524-25 (9th Cir.1994); North Buckhead Civic Ass'n v. Skinner, 903 F.2d 1533, 1541-42 (11th Cir. 1990) .

14 Pub. L. 109-59, Aug. 10, 2005, 119 Stat. 1144; codified at 23 U.S.C. § 139.

15 See 23 U.S.C. § 139(f)(3)

16 23 U.S.C. § 139(f)(3); City of Grapevine v. Dep't. of Transp., 17 F.3d.1502, 1506 (1993)

17 Guidance is available on FHWA's website to assist in drafting a statement of purpose and need at http://environment.fhwa.dot.gov/projdev/tdmelements.asp

18 Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 195-96 (D.C. Cir. 1991); 23 U.S.C. § 139(f)(2).

19 Davis v. Mineta, 302 F.2d 1104 (10th Cir. 2002); Simmons v. U.S. Army Corps of Engineers, 120 F. 3d 664, 666-70 (7th Cir. 1997).

20 City of Alexandria v. Slater, 198 F.3d 862, 867-69 (D.C. Cir. 1999), rehearing and rehearing en banc denied (March 7, 2000), cert. denied, 531 U.S. 820 (2000).

21 Case law on the use of planning products in the NEPA process is not voluminous, but existing cases provide a sufficient body of law to validate this "linking planning and NEPA" approach. Most of the cases focus the question whether planning actions may be used to define P&N under NEPA. The courts have pointed to the long-standing regime under which community planning is the province of the States and local communities, not Federal agencies, and upheld the Federal agencies reliance on such planning decisions. Examples of such cases appear in a FHWA/FTA Chief Counsel joint memorandum on "Integration of Planning and NEPA Processes," dated February 22, 2005 (available at http://environment.fhwa.dot.gov/strmlng/integmemo.asp).

22 Sections 450.212 and 450.318 of the FHWA/FTA planning regulations outline the procedures and considerations for incorporating planning products into the analysis and documentation required under NEPA. The regulation cites the relevant provisions in the NEPA statute and implementing regulations (23 C.F.R. Part 771 and 40 C.F.R. Parts 1500-1508) that support the use of planning products in NEPA.

23 See 23 C.F.R. §§ 771.105(a)-(b), 771.111(a)(2), 771.123(b); 40 C.F.R. §§ 1501.1(a)-(b), (d), and § 1501.2.. More detailed non-binding guidance appears in Appendix A to 23 C.F.R. Part 450.

24 See questions outlined in Section II, Questions 7 and 14 of Appendix A to 23 C.F.R. Part 450.

See CEQ, Forty Most Asked Questions Concerning CEQ's National Environmental Policy Act Regulations, Question 2a; See also FHWA/FTA Planning regulations 23 C.F.R. §§ 450.212 and 450.318.

25 NEPA, 42 U.S.C. §102(2)(E); 42 U.S.C. § 4332(E).

26 Tongass Conservation Society v. Cheney, 924 F.2d 1137, 1140-42 (D.C. Cir. 1991); American Rivers v. FERC, 201 F.3d 1186, 1200 (9th Cir. 2000); Laguna Greenbelt, 42 F.3d at 524-525.

27CEQ, Forty Most Asked Questions Concerning CEQ's National Environmental Policy Act Regulations, Question 1b, 46 Fed. Reg. 18,026 (March 23, 1981).

28 See cases cited in note 13.

29 E.g., Natural Resources Defense Council v. F.A.A.,564 F.3rd 549, 557 (2nd Cir. 2009).

30 CEQ, Forty Most Asked Questions Concerning CEQ's National Environmental Policy Act Regulations, , Question 2a; Valley Citizen for a Safe Environment v. Aldridge, 886 F.2d 458 (1st Cir. 1989).

31 NEPA does not require a separate analysis of alternatives which are not significantly different from alternatives actually considered, or which have substantially similar consequences. Northern Plains Resource Council v. Lujan, 874 F.2d 661, 666 (9th Cir. 1989).

32 Alternatives considered in the NEPA process for an EIS, according to 23 U.S.C. § 139, must arise from a process where the public and agencies have an opportunity for input in the identification of the range of alternatives considered. See also 23 C.F.R. § 771.111(h)(2)(vii) and Question 37 of the FHWA guidance issued 11/15/06 http://www.fhwa.dot.gov/hep/section6002/index.htm .

33 Audubon Naturalist Society v. U.S. Dep't of Transp., 524 F.Supp.2d 642, 667-72 (D. Md 2008).

34 Id., at 669.

35 23 C.F.R. § 774.3(a)(1).

36A related issue is the identification of a preferred alternative. The agency's preferred alternative may be identified in the Draft EIS and must be identified in the Final EIS. See 40 C.F.R. § 1502.14(e), 23 C.F.R. § 771.125(a)(1), and 23 U.S.C. § 139(f)(4), as applicable.

37 40 C.F.R. § 1502.21.

38 If FHWA counsel has any concern about the sufficiency of supporting documentation for purposes of the future administrative record, counsel should request review of the relevant project file material.

39 Dubois v. U.S. Department of Agriculture, 102 F.3d 1273 (1st Cir. 1996).

40 E.g., Native Ecosystems Council v. U.S. Forest Service, 428 F.3d 1233 (9th Cir. 2005); Citizens' to Save our Canyons v. U.S. Forest Services, 297 F.3d 1012 (10th Cir. 2002).

41 David S. Mattern, Reader-Friendly Environmental Documents: Opportunity or Oxymoron?, 39 Envtl. L. Rep. News and Analysis 10624, (July 2009), See also, Improving the Quality of Environmental Documents,A report of the joint AASHTO/ACEC Committee in cooperation with the Federal Highway Administration, May 2006.

42E.g., Davis v. Mineta, 302 F.3d 1104 (10th Cir. 2002).

43The Section 4(f) material in this document has been superseded. Please refer to 23 C.F.R. Part 774.

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