The National Cooperative Highway Research Program (NCHRP) plans to award a contract for a study and report. Legal research reports sponsored by this project are published in NCHRP’s Legal Research Digest (LRD) series. Publications are made available to some libraries and to approximately 4,000 transportation lawyers and officials through the TRB distribution network.
Before the passage of the National Environmental Policy Act (NEPA) (42 USC 4321 et seq.), citizens were frequently unsuccessful using the courts to stop transportation improvements from proceeding. Courts tended to rule that the decision to proceed with a transportation improvement was a political decision not subject to judicial review. When NEPA became law, it required the preparation of environmental impact statements for large transportation projects that required federal funding. Federal approval of the environmental impact statements was subject to judicial review under the Administrative Procedure Act. Since the environmental impact statements included explanations of project purpose and need, opponents could obtain judicial review of the justification for transportation improvements. In order to qualify for federal funding, transportation improvements needed to come from regional transportation plans.
Congress has responded to this development by exempting regional plans from judicial review (23 USC 134(h)(3)) and by allowing purpose and need statements in environmental impact statements to reflect objectives identified in regional transportation plans (23 USC 139 (f)(3)(A)).
For many years federal, state, and local transportation agencies have been promoting the concept of reliance on planning decisions and analyses undertaken during the transportation planning process for establishing the purpose and need portion and the reasonable range of alternatives in environmental documents prepared pursuant to NEPA. This approach, known as Planning and Environmental Linkages or PEL, is consistent with NEPA practices for incorporation by reference (40 CFR 1502.21) and reduction of duplication with state planning processes (40 CFR 1506.2). Federal transportation agencies have adopted regulations (23 CFR 450.212 and 23 CFR 450.318) and guidance to encourage the practice (23 CFR 450 Appendix A).
Reviewing courts have endorsed this practice (e.g., Honolulutraffic.com v. FTA, 742 F. 3rd 1242 (9th Cir. 2014)).
The objective of this research is to produce a digest that answers the following questions:
What is the litigation history behind judicial review of purpose and need statements and PEL?
How are the various approaches to PEL different from each other and what deference do courts provide for each?
What legal risks are associated with each approach?
This research will be conducted in four tasks pursuant to a firm fixed price agreement.
The tasks will be as follows:
Task 1. Research plan and detailed report outline. The consultant will conduct background research and collect relevant material. Based on the initial but complete review of the source material, consultant will propose a detailed report outline. The outline should be about 8 to12 pages, include a proposed survey if one is to be used, and contain sufficient detail to inform the NCHRP project panel of what a 75- to 100-page report will contain. This outline should also contain the estimated pagination for each proposed section and/or subsection. This material will be submitted to NCHRP for consideration and approval.
Task 2. After approval of the work plan, the consultant should conduct additional research, and case and statutory/regulatory analysis.
Task 3. Draft report in accordance with the approved work plan (including modifications required by TRB).
Task 4. Revise report as necessary. The consultant should estimate that two revisions will be necessary. One revision may be required after review by the NCHRP staff and members of a select subcommittee. Additional revisions may be required after the full committee has reviewed the report.
25% paid upon submission and approval of the Task 1 Report.
50% paid upon submission and approval of the Task 3 Report.
25% paid upon submission and approval of the Final Report (following revisions as required by NCHRP).
An important factor in rating proposal offers will be the proposer’s commitment to promptly undertake and complete this study.
HOW TO PROPOSE
Proposals should be submitted as a single PDF with the following information and in the following order:
A statement of interest and qualifications.
Resume of key team members along with a description of responsibilities.
A list of your relevant prior publications (you may enclose one or two samples).
A statement of resources you will allocate to this project; any additions, deletions, or changes you may wish to suggest for undertaking the work; and your requested compensation.
An executed, unaltered liability statement. Here is a printable version of the Liability Statement.
Proposals should not exceed a total of 25 pages (including writing samples).
Proposals are evaluated by project panel members and NCHRP staff consisting of individuals collectively knowledgeable in the problem area. Evaluations are based upon the proposers': (1) experience in the subject area; (2) understanding of the work (demonstrated by the commitment of resources); (3) prior relevant publications (including briefs); (4) schedule for completing the work; and (5) price.
Proposals should be uploaded via this link: https://www.dropbox.com/request/rdaXuI3we7pNNjMyD8qz by 5:00 (EST) on October 10, 2019. Proposals will not be accepted after this time.
For additional information and guidance, click here: Guidance for Working on NCHRP and TCRP Legal Projects.