1、1 Maintaining a Project File and Preparing an Administrative Record for a NEPA StudyAASHTO PRACTITIONERS HANDBOOKThe Practitioners Handbook is produced by the AASHTO Center for Environmental Excellence. The Handbook provides practical advice on a range of environmental issues that arise during the p
2、lanning, development, and operation of transportation projects. The Handbook is 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 cons
3、ider; a background briefi ng; practical tips for achieving compliance. In addition, key regulations, guidance materials, and sample documents for each Handbook are posted on the Centers web site at http:/environment.transportation.orgMAINTAINING A PROJECT FILE AND PREPARING AN ADMINISTRATIVE RECORD
4、FOR A NEPA STUDYPreparing the administrative record for a complex project can be a major challenge. This Handbook provides a starting point for undertaking this important task.Issues covered in this Handbook include: Maintaining accurate project fi les during the NEPA process Using the NEPA process
5、to build a strong administrative record Identifying potential administrative record documents in project fi les Making judgment calls about what documents to include in the record Submitting the administrative record to the courtAmerican Association of State Highway and Transportation Offi cials01Ju
6、ly 2006AASHTO Center for Environmental ExcellenceMaintaining a Project File and Preparing an Administrative Record for a NEPA Study 1 This Handbook provides information for maintaining the project fi le during the National Environmental Policy Act (NEPA) process, and for compiling the administrative
7、 record if and when a lawsuit is fi led challenging the decisions made in the NEPA process. This Handbook is intended primarily for projects in which the lead Federal agency is the Federal Highway Administration (FHWA) and the project sponsor is a state department of transportation (DOT).Maintaining
8、 an accurate and up-to-date project fi le is an important task in any NEPA study, regardless of whether litigation is anticipated. The project fi le allows the project team to locate important documents quickly, which reduces ineffi ciency and duplication of effort, while also reducing the risk of o
9、verlooking information. The project fi le also enables an agency to respond to document requests under the Freedom of Information Act (FOIA) and similar State public records laws. When a lawsuit is fi led, a project fi le provides a starting point for preparing the administrative record. The adminis
10、trative record should include the materials that were considered by the agency in reaching its decision. The responsibility for compiling the administrative record rests with the federal agency (or, in some cases, state agency) whose decision is being challenged.1The administrative record is importa
11、nt because the court is required to base its review of the agencys decision on the information contained in the administrative record. A strong record greatly enhances an agencys ability to defend its decision; a weak or incomplete record increases the chances that the agencys decision will be overt
12、urned by a court. Since the NEPA process itself is often lengthy and complex, it is not uncommon for the administrative record in a NEPA case to include tens of thousands of pages. For that reason, compiling the administrative record requires a substantial effort, which typically involves both progr
13、am staff and attorneys from the agency or agencies involved. The best way to expedite the preparation of the administrative record during litigation is to maintain accurate and up-to-date project fi les during the NEPA process. In this Handbook, the term “project fi le” refers to the fi les maintain
14、ed 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. The term “federal agency” includes not only federal agencies but also any state agency that has assumed the responsi
15、bilities of a federal agency for purposes of compliance with NEPA and related laws.Key Issues to ConsiderMaintaining the Project FileWho is tasked with maintaining the project fi le?Are separate fi les being maintained by FHWA, the State DOT, and/or the project consultants? If so, who is responsible
16、 for maintaining key project documents?Is there a written fi ling protocol? What issues are addressed in the fi ling protocol?Will a database be used to manage the project fi le? If so, what are the strengths and limitations of the database?What method is being used for fi ling or archiving project-
17、related e-mails? How will other electronic documents and data be stored (e.g., maps, modeling results, engineering drawings)?Who will identify and retain privileged materials?How are you handling oversize documentsfor example, displays, maps, etc?How are you handling attachments? For example, if a d
18、ocument is sent to agencies for review, does the fi le include the attachment?What “checks” are in place to ensure that proper fi ling is taking place?Overview1There are several programs under which a State DOT can has assume the responsibilities of the U.S. Department of Transportation (U.S. DOT) f
19、or purposes of compliance with NEPA and related laws. If a State DOT assumes those responsibilities for a project, the State DOT is treated as a federal agency in any NEPA litigation involving that project. In those cases, the State DOT would act as the federal agency for purposes of 2006 by the Ame
20、rican Association of State Highway and Transportation Officials.All rights reserved. Duplication is a violation of applicable law.2 Maintaining a Project File and Preparing an Administrative Record for a NEPA StudyWhat record-keeping requirements or policies must be considered? For example, does the
21、 State DOT have a policy regarding records management and disposition?Are potential administrative record documents identifi ed or segregated in some manner in the project fi les? If so, how is this being done?Preparing the Administrative RecordIs there an existing index?Where are study documents lo
22、cated? One central fi le or multiple fi les?Is there a central repository of e-mails? If not, how will e-mails be located and compiled?What system was used for fi ling documents during the study? As a result of that system, are there any built-in gaps or omissions in the record-keeping?Will the reco
23、rd be electronically scanned and incorporated into a litigation database? If so, what technology (e.g., litigation database) will be used? If not, what is the best way to structure the administrative record?How will the administrative record be produced to the court and the other parties to the liti
24、gation?Does the court in which the case has been fi led have any specifi c requirements with respect to the fi ling of administrative records?Aside from FHWA, are other federal agency approvals needed? If so, what coordination is needed regarding the preparation of their administrative records?Backg
25、round BriefingMaintaining a Project FileAgencies have considerable discretion regarding the procedures to be used for maintaining project fi les during the NEPA process. These procedures vary greatly from agency to agency and even within the same agency. Nonetheless, most public agencies must follow
26、 some requirements regarding the handling of agency documents. These types of requirements apply to project fi les that are maintained by an agency during the NEPA process. Records Management and Disposal Requirements. Most government agencies have requirements regarding the management of agency rec
27、ords. These requirements address issues such as the types of documents that must be fi led and the process for disposing of old records. For FHWA, these requirements are established by an agency order.2 State transportation departments generally have their own requirements, as do most other federal,
28、 state, and local governments. These types of requirements may affect the record-keeping procedures that are used in the NEPA process.FOIA and Other Public Record Laws. Most government agencies are subject to public records laws, such as the federal Freedom of Information Act (FOIA) and similar Stat
29、e laws. The universe of documents that are subject to disclosure under FOIA and similar laws is quite broad. As a result, these laws may result in the release of documents well beyond those that would typically be included in an administrative record. For example, a request under a State public reco
30、rds law may result in disclosure of internal State agency or consultant documents. It also is important to note that a public records request can be received at any time, so it could result in the release of signifi cant documents during the NEPA process, well before litigation begins (and even if t
31、here is never any litigation).Preparing the Administrative Record for LitigationThe requirement to prepare an administrative record exists under the federal law that empowers courts to review federal agencies decisions. The law itself does not prescribe what an administrative record must contain, an
32、d the courts have provided only general principles for determining the contents of the record. The best available guidance at this time is a U.S. Department of Justice (U.S. DOJ) memorandum, which provides general principles for preparing an administrative record.3The following summary is based on c
33、ase law, the U.S. DOJ memorandum, and typical agency practices.2 FHWA Order M 1324.1A, “Files Management and Records Disposition Manual” (Nov. 4, 1999). This order is available on the Centers web site, http:/environment.transportation.org.3 U.S. Department of Justice, Environment and Natural Resourc
34、es Division, “Guidance to Federal Agencies on Compiling the Administrative Record” (January 1999). A copy of this memorandum is available on the Centers web site, http:/environment.transportation.org. 2006 by the American Association of State Highway and Transportation Officials.All rights reserved.
35、 Duplication is a violation of applicable law.Maintaining a Project File and Preparing an Administrative Record for a NEPA Study 3Requirement to Prepare. Section 706 of the Administrative Procedure Act (APA) directs federal courts evaluating the fi nal decision of a federal agency action to “review
36、the whole record or those parts of it cited by a party.” A federal 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 ca
37、se law, is that the administrative record should contain “all documents and materials directly or indirectly considered by the agency” in making its decision. This is a broad and subjective standard, which leaves substantial room for interpretation. For more details, see “Practical Tips” below. Deci
38、ding What to Include. The responsibility for preparing the administrative record rests with the federal agency whose decision is being challenged in litigation (for example, FHWA). Therefore, judgments about what documents to include in the record are made by that federal agency. When preparing the
39、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 U.S. DOJ who are handling the case. The State DOTs attorneys also may be involved in preparing the record.Disp
40、utes 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 decision in a negative light. These types of disputes are ultimately decided by the court.
41、 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 depositions (sworn testimony) from individual agency personnel. It is in the agencys interest to avoid discovery by compiling the record i
42、n a systematic and objective manner. 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 t
43、o introduce new evidence or testimony from expert witnesses. Federal agencies, such as FHWA, typically object to this type of request and urge courts to base their review on the administrative record compiled by the agency. Requests to supplement the record are generally disfavored by the courts; ho
44、wever, courts may allow supplementation under some circumstancesfor example, if there are unexplained gaps in the agencys own record. Cost of the Record. The federal agency, not the plaintiffs who fi led the lawsuit, is responsible for the cost of preparing the record. If the plaintiffs request copi
45、es of the record (or seek paper copies in lieu of electronic), they may be asked to pay for those copies. Multiple Federal Agency Records. For projects that require the approval of two or more federal agencies, there is a possibility that each federal agencys decision will be challenged in court. Fo
46、r example, many highway projects require approval of both FHWA and the U.S. Army Corps of Engineers; each agencys approval is a separate action, and each agencys decision could be challenged in court. If a lawsuit is fi led challenging both agencies decisions, each agency would be responsible for pr
47、eparing its own administrative record. There may, of course, be substantial overlap between each agencys administrative record, if each agencys action involves the same project. The fi ling of a joint record by two or more agencies is allowed and is often the most effi cient approach. Timing of Reco
48、rd Preparation. For projects that are likely to face litigation, it is prudent to maintain the project record during the NEPA process rather than waiting until the process is completed and then attempting to locate the relevant documents. Maintaining an effective fi ling system during the NEPA proce
49、ss helps to ensure that all relevant documents are included when the administrative record is fi led with the court; it also minimizes the time needed to submit the record, thus expediting the litigation. Practical Tips1 | Maintaining Accurate Project Files During the NEPA ProcessThe key to compiling a complete administrative record, with minimum delay, is effective record-keeping during the NEPA process. However, given the sheer volume of material generated within a NEPA project team, it can be challenging to determine which d
