AASHTO PH01-2016 AASHTO Practitioner's Handbook - Maintaining a Project File and Preparing an Administrative Record for a NEPA Study (Revision 2).pdf

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1、1 Maintaining a Project File and Preparing an Administrative Record for a NEPA Study The Practitioners Handbooks are produced by the Center for Environmental Excellence by AASHTO. The Handbooks provide practical advice on a range of environmental issues that arise during the planning, development, a

2、nd operation of transportation projects. The Handbooks are primarily intended for use by project managers and others who are responsible for coordinating compliance with a wide range of regulatory requirements. With their needs in mind, each Handbook includes: key issues to consider; a background br

3、iefing; practical tips for achieving compliance; and a list of reference materials. In addition, key regulations, guidance materials, and sample documents for each Handbook are posted on the Centers web site at http:/environment.transportation.org American Association of State Highway and Transporta

4、tion Officials Center for Environmental Excellence by AASHTO AASHTO PRACTITIONERS HANDBOOK MAINTAINING A PROJECT FILE AND PREPARING AN ADMINISTRATIVE RECORD FOR A NEPA STUDY This Handbook provides advice on maintaining the project file during the National Environmental Policy Act (NEPA) process and

5、preparing the adminictrative record if decisions made in the NEPA process are challenged in a lawsuit. Issues covered in this Handbook include: Maintaining accurate project files during the NEPA process Using the NEPA process to build a strong administrative record Identifying potential administrati

6、ve record documents in project files Making judgment calls about what documents to include in the record Submitting the administrative record to the court 01 August 2016Copyright 2016, Center for Environmental Excellence by AASHTO (American Association of State Highway and Transportation Officials).

7、 All Rights Reserved. This book, or parts thereof, may not be reproduced in any form without written permission of the publisher. Printed in the United States of America. This material is based upon work supported by the Federal Highway Administration under Cooperative Agreement No. DTFH61-07-H-0001

8、9. Any opinions, findings, and conclusions or recommendations expressed in this publication are those of the Author(s) and do not necessarily reflect the view of the Federal Highway Administration. 2016 by the Center for Environmental Excellence by AASHTO. All rights reserved. Duplication is a viola

9、tion of applicable law.1 Maintaining a Project File and Preparing an Administrative Record for a NEPA Study Maintaining a Project File and Preparing an Administrative Record for a NEPA Study 1 This Practitioners Handbook provides advice for maintaining the project file during the National Environmen

10、tal Policy Act (NEPA) process and for compiling the administrative record if and when a lawsuit is filed challenging the decisions made in the NEPA process. 1The Handbook is intended primarily for projects in which the Federal lead agency is the Federal Highway Administration (FHWA), the Federal Tra

11、nsit Administration (FTA), or the Federal Railroad Administration (FRA), and the project sponsor is a state department of transportation (DOT), public transit agency, or other state or local public agency. Maintaining an accurate and up-to-date project file is an important task in any NEPA study, re

12、gardless of whether litigation is anticipated. A well-maintained project file reduces inefficiency and duplication of effort, while also reducing the risk of overlooking information. It also enables an agency to respond promptly to document requests under the Freedom of Information Act (FOIA) and si

13、milar state public records laws. When a lawsuit is filed challenging a Federal agencys decision, the agency must compile and submit its administrative record, which consists of all documents and materials that the agency “directly or indirectly” considered in making its decision. The court is requir

14、ed to base its review of the agencys decision on the information contained in the administrative record. A strong and complete record greatly enhances an agencys ability to defend its decision; a weak or incomplete record negatively affects the defensibility of the agencys decision. Legally, the res

15、ponsibility for compiling the administrative record rests with the Federal agency whose decision has been challenged. 2If two or more Federal agencies granted approvals for the project, each of those agencies could be named as a defendant, and each agency would then need to prepare its own administr

16、ative record. The project sponsor typically works collaboratively with the Federal lead agency to prepare the record. When a state DOT has assumed the responsibilities of FHWA or another U.S. Department of Transportation (U.S. DOT) agency under an assignment program, the state DOT essentially is the

17、 Federal agency for purposes of the litigation and therefore is directly responsible for preparing the administrative record. Since the NEPA process is often lengthy and complex, it is not uncommon for the administrative record in a NEPA case to include tens (or even hundreds) of thousands of pages.

18、 For that reason, compiling the administrative record requires a substantial effort by the agencys program staff and attorneys. The best way to expedite the preparation of the administrative record is to maintain an accurate and up-to-date project file throughout the NEPA process. In this Handbook,

19、the term “project file” refers to the files maintained by the project team during the NEPA process, while the term “administrative record” refers to the documents that are actually submitted by an agency to the court in a NEPA lawsuit. Background Briefing Maintaining a Project File The agencies invo

20、lved in preparing a NEPA study generally have wide discretion to determine how to manage their project files, as long as the procedures satisfy the agencys standard record-keeping requirements. Federal and state public-record laws may also have a bearing on the development of project filing procedur

21、es. Records Retention and Disposal Requirements. Most government agencies have requirements regarding the management of agency records. These requirements address issues such as the types of documents that must be filed and the process for disposing of old records. For example, FHWAs requirements ar

22、e established by an agency order. 3State DOTs generally have their own requirements, as do most other Federal, state, and local governments. These types of requirements may affect the record-keeping procedures that are used in the NEPA process. Overview 1The term “NEPA process” is used in this handb

23、ook to refer to a process that includes compliance with NEPA and other laws (not just NEPA itself). 2The term “Federal lead agency” is used in this handbook to refer to the Federal agency or agencies that act as lead or co-lead agencies in preparing a NEPA document. It also includes states that have

24、 assumed U.S. DOT responsibilities under a NEPA assignment program (23 USC 326 or 327). 3FHWA Order 1324.1B, “FHWA Record Management” (July 29, 2013). 2016 by the Center for Environmental Excellence by AASHTO. All rights reserved. Duplication is a violation of applicable law.2 Maintaining a Project

25、File and Preparing an Administrative Record for a NEPA Study FOIA and Other Public Record Laws. FOIA and similar state laws require Federal and state agencies, respectively, to release a wide range of public records upon request. These laws may result in the release of documents well beyond those th

26、at would typically be included in an administrative record. For example, a request under a state public records law may result in disclosure of internal state agency documents that would not be part of the Federal agencys administrative record. A public records request can be received at any time du

27、ring the NEPA process or afterward. Maintaining an orderly project file throughout the NEPA process facilitates prompt compliance with these public records laws. Preparing the Administrative Record for Litigation The requirement to prepare an administrative record exists under a Federal law, the Adm

28、inistrative Procedure Act (APA), which empowers courts to review Federal agencies decisions. The courts have provided only general principles for determining what an administrative record must contain. This section provides a brief overview of the legal principles established in case law and through

29、 agency practice. Individual agencies may have more specific guidance documents and best practices. Requirement to Prepare. Section 706 of the APA directs Federal courts evaluating the final decision of a Federal agency action to “review the whole record or those parts of it cited by a party.” 4A Fe

30、deral agency whose decision has been challenged in court under the APA must compile an administrative record and provide it to the court and to the opposing parties in the lawsuit. Contents of Record. The general rule, as established by case law, is that the administrative record should contain “all

31、 doc- uments and materials directly or indirectly considered by the agency” in making its decision. This is a broad and subjective standard. Nonetheless, it is well-settled that the record may include supporting documents located outside the files of the lead agency itself (e.g., documents maintaine

32、d by the project sponsor on behalf of the Federal agency). Deciding What to Include. The responsibility for preparing the administrative record rests with the Federal agency whose decision is being challenged in litigation. Therefore, judgments about what documents to include in the record are made

33、by that Federal agency. When preparing the administrative record for the court, the Federal agency typically consults with its own attorneys, the attorneys of any other Federal agency involved in the litigation, and the attorneys at the U.S. Department of Jus- tice who are handling the case. Attorne

34、ys for the project sponsor normally are also involved in preparing the record. Disputes Over Completeness of the Record. In litigation, plaintiffs can dispute the completeness of the agencys record. For example, plaintiffs may contend that the agency omitted documents that tended to cast its decisio

35、n in a negative light. Such disputes are ultimately decided by the court if the parties are unable to reach an agreement. If the court concludes that the agency showed bad faith in compiling the record, the court can allow discoverythat is, an opportunity for the plaintiffs to take sworn testimony f

36、rom agency personnel or others involved in the process, such as the project sponsor or consultants. By compiling the record in a systematic manner and documenting the process used to compile the record, the Federal agency can help to avoid the need for discovery, which can be time-consuming, costly,

37、 and unpredictable. Supplementing the Record. Any party to the litigation may request the courts permission to “supplement the record” with additional documents. It is not uncommon for those challenging a Federal agencys decision to make this type of requestfor example, by seeking to introduce new e

38、vidence or testimony from expert witnesses. Federal agencies typically object to this type of request and urge courts to base their review on the administrative record compiled by the agency. Requests to supple- ment the record are generally disfavored by the courts, but courts may allow supplementa

39、tion under some circumstancesfor example, if there are unexplained gaps in the agencys own record. Because Federal agencies generally oppose plaintiffs re- quests to supplement the record, Federal agencies themselves also are reluctant to ask courts to consider documents outside the administrative r

40、ecord. Adding Inadvertently Omitted or Incomplete Documents. After the agency has submitted the record, the agency may identify additional documents that were inadvertently omitted (in whole or in part) when the record was compiled. When this occurs, the agency normally has an opportunity to submit

41、the additional documents or parts of documents to the court and the other parties, along with an updated index and an explanation of the inadvertent omission. As long as these inadvertent omis- sions are identified early and are limited in number, they are unlikely to raise concerns. However, repeat

42、ed requests to submit inadvertently omitted documents could call into question the completeness of the record as a whole. For this reason, it is in the agencys interest to file a complete record in the first instance. 4 5 USC 706. 2016 by the Center for Environmental Excellence by AASHTO. All rights

43、 reserved. Duplication is a violation of applicable law.Maintaining a Project File and Preparing an Administrative Record for a NEPA Study 3 Cost of the Record. The Federal agency, not the plaintiffs who filed the lawsuit, is responsible for the cost of preparing the record. If the plaintiffs reques

44、t additional copies of the record or seek paper copies in lieu of an electronic one, they may be asked to pay for those copies. Costs incurred by the project sponsor in helping to prepare the administrative record may be reimbursable by the Federal agency as an eligible project cost. Multiple Federa

45、l Agency Records. For projects that require the approval of two or more Federal agencies, each Federal agencys decision could be challenged in court. For example, many transportation projects require approval of both a U.S. DOT agency and the U.S. Army Corps of Engineers; each agencys approval is a

46、separate action, and each agencys decision could be challenged in court. If a lawsuit is filed challenging both agencies decisions, each agency is responsible for preparing its own administrative record. There may, of course, be substantial overlap between the agencies administrative records. The fi

47、ling of a joint record by two or more agencies is allowed and is often the most efficient approach, but in some cases each agency chooses to file a separate record. Timing of Record Preparation. The deadline for filing the administrative record is set by the court after the litigation begins. The li

48、tigation begins with the filing of a complaint, and Federal defendants normally have 60 days or longer to file an answer to the complaint. After the answer is filed, the court typically will set a schedule for the case. In most cases, the court will allow the agencies several months or longer to sub

49、mit the record unless there are time-sensitive issues. The record must be filed before the court can issue a final decision on the merits of the case. To avoid delays, agencies that anticipate litigation often begin work on preparing the administrative record even before litigation is actually filed. Key Issues to Consider Maintaining a Project File Is there a central project file, and if so, who is responsible for maintaining it? If separate files are being maintained by the U.S. DOT agency, the project sponsor, and/or consultants, is