And Tactics for Preparation

Overall StrategyAnd Tactics For PreparationOf A NEPA/CEQA Administrative Record

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OVERALL STRATEGY

AND TACTICS FOR PREPARATION

OF A NEPA/CEQA ADMINISTRATIVE RECORD

INTRODUCTION

I have been asked to prepare guidelines on how to prepare to challenge an Environmental Impact Statement (EIS) and/or Environmental Impact Report (EIR) prepared in accordance with:

• The National Environmental Protection Act (NEPA) and its implementing regulations
• The provisions of 49 United States Code (USC) 5301 et. seq. (formerly known as the “Urban Mass Transportation Act of 1964, as amended”)
• Its implementing regulations, chiefly 49 Code of Federal Regulations (CFR) 611
• The Federal Transit Administration’s Guidelines, chiefly, but not exclusively, FTA Circular C 9030.1C, “Capital Facilities and Formula Grant Programs,” October 1, 1998[1]
• FTA’s detailed process and procedures for preparing an application for a “new starts” grant under 49 USC 5309[2]

(I do not suggest that anyone begin reviewing these at this time, but I do want to provide a list of citations if such are required in the future.)

These same guidelines are generally also applicable to challenges to an Environmental Impact Report (EIR) prepared in accordance with the California Environmental Quality Act and its regulations.

Perhaps the most important part of a NEPA/CEQA challenge is the preparation of the Administrative Record (AR). The AR is, basically, every document that had, or could have had, a bearing on the decision made by the governing board, specifically including both the materials prepared by the moving party and the commenters (generally focusing on those made by the plaintiffs in the matter at issue) and other interested parties.

NEPA/CEQA challenges are bench trials, heard by a judge, without a jury acting as a trier of fact. They are challenges are on the law, as decided by a judge (or, under certain conditions, by a designee of a judge operating as a special master). There is generally no testimony heard from people who are eyewitnesses or other precipitant witnesses,although, in some situations, there are expert reports and expert witness's after-the-fact. In short, if the matter is not in the AR, did not exist nor was presented to the designated receptor in a proper and timely manner, then as far as the NEPA/CEQA challenge is concerned, it may be as if it never existed, and the court will not hear it (with very few exceptions, none of which should be automatically expected to apply). Therefore, one of the absolute keys is getting documents and statements into what will become the AR. This is primarily, but not exclusively, a matter of carefully and thoroughly presenting comments, questions, and documents to the designated body through the Draft EIS (DEIS)/DEIR comment process.

However, prior to getting into the specifics of how to prepare to challenge an EIS/EIR, I believe it would be useful to first understand the overall environment, the governing strategy to be utilized in a NEPA challenge, and how an EIS/EIR challenge fits within that strategy.

OVERALL STRATEGY

The objectives of this program of opposition will best be served by a three-pronged approach:

• Litigation – Challenging the authority and ability of the agency to proceed with the project in a court, or courts, of law.
• Public Relations – Attempting to move the public to oppose the project and to take action against it. This includes as a major part, but is not limited to,press/media relations.
• Political – Attempting to force the decision-makers to cease attempting to move the project to completion, or forcing changes to the project that will remove or mitigate the objections, or, rarely, attempting to gain statutory changes that favor the position of the opponents of the project.

It is important to understand what can be accomplished, individually and collectively, through these three.

Litigation

Potential Courses of Action

The principle one, at this point, appear to be a CEQA challenge as it there appears to be several possible courses of action under State law and process, while finding a Federal course of action is more difficult.

The Judicial approach has the capability to delay the project and, by doing so, to make it more expensive for the proponents through the costs of litigation and related activities; to push back the award of contracts, the commencement of work or to stop the work in progress, and/or to delay the commencement of service to the public; and to increase the costs through time delay. The litigation approach may include, but is not limited to, the CEQA challenge and may, in some cases, include administrative procedures, rather than trial.

In the current situation, it is doubtful if a Judicial approach, in and of itself, can totally defeat the project in the face of determination on the part of the proponents to go on with it. Even a fully successful NEPA/CEQA challenge does not mean that the project is defeated or prohibited in any way; it only means that, if the proponents wish to go forward, they must correct the deficiencies in the environmental clearance process. The correction process can range from “fixing” a single point, which may be a matter of weeks to months, to having to commence additional technical and/or field research, to almost starting over from the beginning with one or more very significant points – such as having to evaluate one or more entirely new alternatives – which can take up to a year or even more. Unless we encounter situations that are not now believed likely,the best that we can expect from an NEPA/CEQA challenge is delay, with the frustration for the agencythat goes along with delay, particularly for politicians who have a view of the long range that, at best, will range from, “what do we do after lunch,” to the next election.

If a challenge to the project, and/or the program of projects (the several projects, collectively, constitute the most significant portion of a “program of projects,” in transit planning/funding terminology), under Federal and/or State courses of action, even if there is a final finding that statute has been violated, that there is no way to remove the violation by changing the project or by other means, and that the project or program is therefore prohibited from proceeding, there is always the possibility that the violation could be eliminated by changes in the “offending” statute. I assure you, this would not be the first time that this has occurred.

Also keep in mind that both the structure of the statutes and usual application of the judicial process includes a fair degree of deference to the decisions made by the political process. In general, the Judicial process will look for violation of law, regulation, or procedure[3]; it will not generally review issues such as, “is this the ‘best’ alternative,” or even if it is a “good” alternative[4]. In general, Judges leave such matters to the elected/appointed members of the legislative branch and/or the designated members of the administrative branch of governmental units.

Settlement as a Desirable Methodology for Closure

Also, carrying litigation to final resolution through the courts is often a sub-optimal tactic, if there is a reasonable alternative (which, of course, requires the “other guy” to be interested in some degree of compromise at some point in the litigation process).

Litigation is very expensive to pursue, and NEPA/CEQA challenges can be among the more expensive proceedings due to the huge AR and other requirements. Always keep in mind that the proponent agency has a virtually unlimited legal budget – funded, of course, by you, the taxpayer. Final orders laid down by the trial judge can, and will, be appealed, a process that will almost always take months – or, more likely, over a year – and can be even more expensive than the original legal challenge. Even if there is a final order in favor of the plaintiffs, it is not at all uncommon for the plaintiffs to have to continue to return to the courts to enforce what the plaintiffs thought the order required, but the defendants do not agree to.

For these reasons, a negotiated settlement, such as consent decree (CD), is often preferable. A CD can be reached at any point in the litigation process from prior to the litigation even being filed (technically, it is not a “CD” if there was never a legal action initiated, but the status and impact is very similar) up until the final judicial order is finalized. (As a practical matter, it is rare for a defendant in situations such as this to express much interest in a settlement until it has fully comprehended the legal situation and understand the risks and rewards. When in this status, never forget that such settlements require the action of the governing board, and that it is very likely that governing board members have had a major role in formulating, even mandating, the actions the plaintiffs object to, and that staff and defendant legal counsel are often extremely reluctant to tell the Board members of the true situation, which would require the admission of their, and the Board’s, errors.)

A CD, once accepted by the court, is final and binding and cannot generally be appealed as to its stipulations (although challenges to compliance with the terms of CD's are certainly not at all unusual and frequently go on for years, even more than a decade). In essence and in law, a CD becomes a contract, interpreted under the contract law in the state in which the participants stipulate (this is generally true even for “Federal” CD’s because contract law is not really much of a matter for Federal statutory and case law, with the obvious exception of contracts that the Federal government is a party to). Even if the underlying legal theory of the plaintiffs’ case is later reversed by the U.S. Supreme Court, a CD, once entered, will generally remain valid and enforceable, as a contract. In addition, CD’s can include enforcement provisions, short of returning to the court system, such as a Special Master and/or a mediation/arbitration process that can significantly speed up resolution of issues that may – will – arise.

In a NEPA/CEQA challenge (as well as certain other types of litigation that could be applicable here), there are specific statutory provisions that allow for recovery of the legal costs of the plaintiff from the defendant – if the plaintiff is successful, of course. While this is can be an important consideration, I strongly caution against any finite expectations of cost recoveries – I suggest, instead, that the plaintiffs consider each dollar expended as a dollar gone forever. If there is an award of costs at some point, or a settlement agreement that includes plaintiff legal cost recovery, well, Merry Christmas.

Settlements actually are more likely to produce recovery of costs, and to produce it earlier and with less trouble, than a court order carried to its final conclusion. In a legal action that does not settle, in a matter where victorious plaintiffs do have, under statute, the opportunity for cost recovery, there is no possibility of recovery of costs until either the final opportunity for challenge by the losing defendants is exhausted, or the defendants elect to not attempt further challenge. This process can and usually does require years. Even after the main matter is finalized, the determination of the fees is, ultimately, a matter for the court to decide – unless the parties can agree, which there is often very little motivation for the defendants to do, as the only thing that they have at risk at this point are the legal and/or other costs of fighting the plaintiffs claim. It is not at all unusual for such cost reimbursement actions to take many months and, in extreme cases, over a year – after the final court order showing the plaintiffs victorious has been entered and the last opportunity for appeal exhausted.

In a settlement, however, the legal costs to be paid to the plaintiffs by the defendants are virtually always a matter comprehended by the CD, and the timing is, almost always, far faster, often years faster. Also, if fees are to be awarded by the court system, the plaintiffs must prepare, and then generally be prepared to explain in detail and defend, the costs claimed. In a settlement, the process is whatever the parties may agree to, and the plaintiffs have the option of simply putting a total dollar figure on the table and informing the defendants that further detail is not necessary (this tactic may or may not be entire successful, depending upon a variety of matters, but, in a situation where the defendants are anxious to settle quickly, it may be usable).

(In a related matter, if this has not already been done, I recommend that the team investigate how best to keep all of its financial and other matters, most specifically including membership, confidential, including surviving discovery demands from the plaintiff. I have seen successful methodologies in various venues, but I have no knowledge of the statutory and case law in specific states.)

Most public sector governing boards begin with a reluctance to settle legal challenges. This reluctance is based on everything from a conviction that the agency was placed on the earth to accomplish exactly what the plaintiffs are fighting to staff briefings on the matter that are factually disadvantaged and morally challenged. On the other hand, it is not infrequent that the discovery process and related activities provide the plaintiffs with knowledge of certain matters that the defendants would prefer not made public, including certain matters that may have no relevance to the matter being tried, and it is very common for such settlement documents to have strong non-disclosure provisions that are legally enforceable.

In any particular situation, for a CD to be effective, or even possible, then there must be something “in it” for the sponsoring government agency. Depending on various events that may occur, it may be difficult, even impossible, to structure such an outcome.

This is particularly true with the current matter at issue, the MTC/ABAG Plan.

In some situations, the government agency has absolutely nothing to gain from a negotiated settlement that includes a prohibition against building what they want to build. There would then be absolutely no reason for it to not pursue every possible conceivable legal recourse until all are totally exhausted, while simultaneously reviewing lobbying options and a new authorization laws and/or referendums.

To put it more simply, a cornered rat can be very dangerous because it has nothing to lose.

Subjects of Litigation

In a very general sense, there are four types of challenges to the type of project we have hear under various provisions of Federal law, state statute, and local ordinance; case law; and implementing regulations:

• Legal – The agency must have the legal basis to exist and to undertake the actions that it proposes to undertake. The projects must satisfy and, in many cases, demonstrate satisfaction with, the various legal requirements for such prior to being approved. There are large numbers of general and specific statutory requirements, everything from NEPA and CEQA to the Americans with Disabilities Act to the Civil Rights Act of 1964, etc., that may provide various requirements that the agency and/or the project may not be in compliance with.
• Technical –There are a variety of technical requirements under NEPA and the “new starts” statutory underpinnings, plus the implementing regulations, CEQA, and there may be State statutory requirements, and even city, county, and/orother local agencyordinances that may also be useful. In addition, under Federal transit law and regulations, the agency must show the technical capacity of its staff and external advisors to perform the project in the EIS, but this is a standard that, to the best of my knowledge, has never been challenged in a trial, let alone been successfully challenged.
• Financial –There are a number of financial requirements, the most important being the FTA requirements that the agency be able to finance the construction and the future operations of the project and the program of projects and that this be done without negative impacting the operations and capital renewal and replacement of existing transportation system components. While the requirements of the FTA’s “Financial Capacity” guidelines (citation above) appear very strong, FTA-enforced compliance with these appears weak, based on results achieved, and I am unaware of any legal challenge being brought under this theory of action. In some particular situations, this does offer an interesting possibility to test this course of action, in that there appears to be an opportunity to show that the moving agency has falsified its financial condition by not disclosing significant liabilities, or it has counted questionable revenues, etc. (Note a significant distinction here: It is very difficult to prevail in showing that an agency has not met requirements, such as the financial requirements, of Federal regulations. It is generally far less difficult to prevail in an action that shows that an agency has failed to comply with the regulations by not properly disclosing material matters required to be disclosed. However, if the agency then “corrects” the “error,” the agency can generally proceed with the project.)

In the instant matter, there is a requirement that the plan be "financially constrained" – that is, that there is a reasonable likelihood that it can be accomplished within available financial resources. This precludes, for example, assuming that a funding source not currently available will come into existence, such as a new tax being passed after the Plan is adopted. It is interesting that the Plan financial element shows 5% ($14 billion) of the required funding for implemented to be "Anticipated" (page 62), which is defined as "unspecified revenues that can reasonably be expected to become available within the plan horizon" – most interesting funding methodology.