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2006 Environmental Conference: Litigation Overview

2006 Environmental Conference: Litigation Overview . Lance Hanf, Senior Agency Counsel HCC-WE, San Francisco 415/744-8272. Introduction. What are the roles of HCC, the State, SDOJ & your office? How to better defend our environmental decisions & documents

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2006 Environmental Conference: Litigation Overview

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  1. 2006 Environmental Conference: Litigation Overview Lance Hanf, Senior Agency Counsel HCC-WE, San Francisco 415/744-8272

  2. Introduction What are the roles of HCC, the State, SDOJ & your office? How to better defend our environmental decisions & documents The primary laws here are NEPA, 4(F) and the Administrative Procedures Act.

  3. Agenda • What the laws require • How we can better protect our decisions if challenged

  4. Overview • Jurisdiction in Federal Court • Represented by USDOJ/U.S. Atty. Office • Standing to sue • Who are the parties • Prayer & remedies

  5. Jurisdiction Parties have right to appeal decision No right to Supremes Move to Federal Court Circuit Courts bind lower courts Power to hear case Must sue federal govt. in Federal Court Most cases originate in U.S. District Court

  6. Standing to Sue • Constitutional Harm • Injury in fact • Prudential Harm • Zone of interest • Look to Purpose of Statute

  7. The Parties • Plaintiffs • State • FHWA • Other Fed. Agencies • Interests may not be the same.

  8. Representation • U.S. Dept. of Justice • U.S. Atty. Sub office • By law they represent Feds. in Fed. Courts. • No set rule on which office does what, but loosely based on National vs. local

  9. Representation (cont’d) • FHWA Counsel • Assist in admin. Record • Sole counsel in MSPB & EEOC & DOTBCA • Draft motions • FHWA Experts • Who is whose client?

  10. Damages • APA no monetary Damages • But see EAJA • Remand to do again • Monetary Damages in personnel and Tort cases.

  11. Court’s Power • Injunctions • Remand to Agency if found unlawful or arbitrary • Attorney’s fees (size issue) agency must be found not substantially justified. GOE $

  12. Personal Liability • USDOJ Representation IF in scope of employment • Criminal actions almost never in your scope. See ESA • FHWA will pay for part of your professional insurance

  13. Notes Studies Minutes Articles Guidance Planning/AQ info. Demonstrative info. E-mails Any form of information that we relied on Administrative Record: All information that went into ROD or FONSI…

  14. Role of Division • Search files • Search e-mail and back-up tapes • Write facts and narrative • Put items in chronological order • Review court documents like plaintiff’s statement of facts • Serve as resource

  15. “That ringing in your ears - - I think I can help.”

  16. Role of FHWA Counsel • Coordinate with DOJ • Know the Law, esp. 49 & 23 USC • Draft Pleadings & Motions • Work with Division • Work with State AG’s Office • Formulate Strategy

  17. AdministrativeProcedures Act:the door to sue the government • Final agency actions • Arbitrary & capricious or unlawful • Courts may not substitute their judgment for the agency’s • Deference to Agency

  18. Do you hear me?

  19. Focus on Issue • Narrow issue, limited record • Plaintiffs can add to record • FHWA must certify that it relied on info. • Hard to add to record later • Can put on CD-ROM • Not all filed with Court

  20. NEPA Problems • Bad purpose & need • Not providing reason for eliminating alts. • Not looking at reasonable range of alts. • Cumulative impacts • Indirect impacts • Conclusions w/o facts or studies • Segmentation

  21. NEPA Problems(cont’d) • Not citing to studies (summary & location) • Resource Agency disagreements • FHWA not conducting independent review • Consultant contact for certain type of document • Legacy Issue

  22. 4(f) Problems • Substantive statute (less deference) • Not reviewing feasible and prudent w/ EA • Not providing basis for eliminating alternatives (extraordinary factors) • Not doing Statement • Not doing all possible planning to mitigate harm

  23. NEPA Rules • Hard look • Procedural not substantive • Environmental impacts not economic or social • Deference, if reasonable and in record • Burden on plaintiffs

  24. Focus on Issues • Narrow issue, limited record. • Plaintiffs can add to record • FHWA must certify that it relied on info. • Hard to add to record later • Can put on CD-rom • Not all filed with Court

  25. Summary • Need to use Administrative Record to our advantage • Use attorneys at PDEIS Stage • Focus on issues and controversy

  26. For more information… • Other training sessions: NHI, USDOJ & private groups • NEPA books, Law Review articles, CEQ, EPA and FHWA website • Me

  27. Davis v. Mineta, 302 F.3d 1104 (10th Cir. 2002) Won in U.S. Dist. Ct., lost in the 10th Cir. (EA/4(f))

  28. Issues lost • Contracted for a FONSI by a certain date. • Limited geographic scope with 4(f) • Cumulative impacts of noise, 4(f), bisects parks, new bridge, added traffic could lead to a significant impact. • Impact of phasing • Cumulative alternatives: mass trans., TDM • Induced growth impacts (with or without)

  29. Federal Highway Administration Western Legal ServicesSan Francisco, California

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