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NEPA CHALLENGES: THE HORRID MESSAGE. JACK F. GILBERT ATTORNEY-ADVISOR FHWA OFFICE OF CHIEF COUNSEL. BEFORE WE GET STARTED. You all do Very Good Work Good Stewards of the Environment Doing the Right Thing Still Subject to a Challenge. NEPA CHALLENGES.

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nepa challenges the horrid message

NEPA CHALLENGES: THE HORRID MESSAGE

JACK F. GILBERT

ATTORNEY-ADVISOR

FHWA

OFFICE OF CHIEF COUNSEL

before we get started
BEFORE WE GET STARTED
  • You all do Very Good Work
  • Good Stewards of the Environment
  • Doing the Right Thing
  • Still Subject to a Challenge
nepa challenges
NEPA CHALLENGES
  • I will meditate the while upon some horrid message for a challenge

William Shakespeare (1564–1616)

Twelfth Night, act 3, sc. 4, l. 199-200; Sir Toby Belch.

the goals of a nepa challenge
The Goals of a NEPA Challenge
  • Alteration
    • Minor or Major
  • Stop
    • Kill, Bury, Put to Sleep
  • Delay
    • Kill, Bury, Put to Sleep
it can be pretty horrid
It Can Be Pretty Horrid
  • Senville v. Peters
  • City of Carmel v. US DOT
  • N.C. Alliance for Transp. Reform v. US DOT
  • AGUA v. FHWA
merrily we sue along
Merrily We Sue Along
  • Lawsuits
    • Threat of a Lawsuit
    • Filing of a Lawsuit
    • Temporary Restraining Orders (TROs)
    • Preliminary Injunctions (PIs)
    • Summary Judgments
    • Hearings/Final Judgments
    • Appeals
    • Threats of Further Lawsuits
before the lawsuit
Before the Lawsuit
  • Be Proactive not Reactive
  • Fully Engage with the Project’s “Opponents”
  • Maintain Project Flexibility
  • Assemble the Necessary Team
  • Educate the Public – Be on Message
  • Issue Spotting*
  • Respond Fully to All Comments
  • But Always Remember – Even if everything is done perfectly you can still be sued
defending the lawsuit
Defending the Lawsuit
  • Counsel must be knowledgeable
  • Coordination between State, Feds City, etc., and consultants
  • Remember there is but one audience – U.S. District Court
  • A litigation team - exec committee
    • A designated point of contact
lawsuit rules or murphy s law
Lawsuit Rules or Murphy’s Law
  • It will take longer than you want
  • It will take longer than you think
  • It will take more time and money
  • It will not be easy
  • It will be personal
issue spotting
Issue Spotting
  • Common Litigation Areas
    • Purpose & Need
    • Alternatives
    • Indirect Impacts
    • Cumulative Impacts
    • Air Toxics
    • Lack of Response to Comments
    • Administrative Record
the path to lawsuit success
The Path to Lawsuit Success
  • Call the Attorney -- before the lawsuit is filed
  • Remember Public Comments are the map to any lawsuit
  • Document Document Document
    • Show Your Work
    • Administrative Record
    • This is what the Court sees
delay for delay s sake
Delay for Delay’s Sake
  • An incompetent attorney can delay a trial for months or years. A competent attorney can delay one even longer. *

Evelle J. Younger

(Substitute “project” in place of “trial”)

conclusion
CONCLUSION
  • To See the Project Completed You Need:
    • Legal Viability
    • Political Support
      • Public and Govt. Agencies
    • Economic Feasibility
  • To Address the Challenge You Need:
    • Integrated and strategic approach
    • Major investment of time and resources
    • Leadership, dedication and commitment
final conclusion
FINAL CONCLUSION

Thank You for Time and for

Your Hard Work