The National Academies

NCHRP 20-06 [Active]

Legal Problems Arising out of Highway Programs

  Project Data
Funds: Continuing
Staff Responsibility: Gwen Chisholm-Smith
Research Agency: TRB
Effective Date: 11/1/1968
Comments: Hyperlinks to each LRD published since 1999 appear below (Topic 10-03 forward).

Background: A major and continuing need of state highway and transportation departments involves assembling, analyzing, and evaluating operating practices, administrative procedures, and legal issues associated with highway and transportation projects. Individual state legal experiences need to be compared and made available for possible wider application. Research to identify and evaluate legal options facilitates the handling of both immediate and long-range needs of engineering, planning, and administrative aspects of transportation programs.

NCHRP Project 20-06 was established in 1968 to meet these needs. It is a continuing project under the direction of the TRB staff Counsel for Legal Research. Numerous legal and right of way problems affecting the operations and the services and facilities provided by state transportation agencies have been researched since the beginning of the project. Results are made available to state transportation departments and other public and private agencies through publication of Legal Research Digests and Selected Studies in Transportation Law (SSTL). SSTL is jointly sponsored with TRB’s Transit Cooperative Research Program and is comprised of the following volumes:

  • Volume 1 Construction Contract Law (NCHRP)
  • Volume 2 Eminent Domain (NCHRP)            
  • Volume 3 Environmental Law and Transportation (NCHRP)
  • Volume 4 Tort Liability (NCHRP)                     
  • Volume 5 Transit Law (TCRP)
  • Volume 6 Transit Labor 13(c) Decisions (TCRP)
  • Volume 7 Transit Charter Bus Service: Decisions and Documents (TCRP)
  • Volume 8 Transportation Law and Governmental Relations (NCHRP)
Status: The status of each research topic appears below.
Product Availability: Individual studies completed under this project are published as NCHRP Legal Research Digests (LRD).  Hyperlinks to each LRD published since 1999 appear below (Topic 10-03 forward).  The full list of NCHRP Legal Research Digests is listed below.  For materials published prior to 1999, please see the TRB Bookstore.  Publications since 1999 are shown below with their respective project topic and a link to their material on the TRB website. 
Projects in Development or Contracting: 
Active Projects:
Research Completed/In Publication:

Completed Projects:

  • Legal Research Digest 1: Continuing Project on Legal Problems Arising Out of Highway Programs, 6 p. (1988)

  • Legal Research Digest 2: Supplement To Liability of State Highway Departments for Design, Construction, and Maintenance Defects, 20 p. (1988)

  • Legal Research Digest 3: Supplement to Liability of State and Local Governments for Negligence Arising Out of the Installation and Maintenance of Warning Signs, Traffic Lights, and Pavement Markings, 10 p.  (1988)

  • Legal Research Digest 4: Supplement to Personal Liability of State Highway Department Officers and Employees, 9 p. (1988)

  • Legal Research Digest 5: Supplement to Labor Standards in Federal-Aid Highway Construction Contracts, 19 p. (1989)

  • Legal Research Digest 6: Impact of the Discretionary Function Exception on Tort Liability of State Highway Departments, 25 p. (1989)

  • Legal Research Digest 7: Liability of Public Agencies Arising Out of Rejection of Bids and Misaward of Contracts, 17 p.  (1989)

  • Legal Research Digest 8: Continuing Project on Legal Problems Arising Out of Highway Programs, 11 p.  (1989)

  • Legal Research Digest 9: Supplement to Liability of State and Local Governments for Snow and Ice Control, 11 p. (1990)

  • Legal Research Digest 10: Supplement to Liability of the State for Injury-Producing Defects in Highway Surface, 10 p. (1990)

  • Legal Research Digest 11: Impact of 42 U.S.C. §1983 (Civil Rights Act) On Highway Departments, Personnel, and Officials, 21 p. (1990)

  • Legal Research Digest 12: Suspension, Debarment, and Disqualification of Highway Construction Contractors, 27 p.  (1990)

  • Legal Research Digest 13: Civil RICO (Racketeer Influenced and Corrupt Organizations Act) Applications in the Highway Construction Industry, 27 p. (1990)

  • Legal Research Digest 14: Supplement to Liability of State Highway Departments for Defects in Design, Construction, and Maintenance of Bridges, 10 p. (1990)

  • Legal Research Digest 15: The Application of NEPA (National Environmental Policy Act) to Federal Highway Projects, 22 p. (1990)

  • Legal Research Digest 16: Supplement to Payment of Attorney Fees in Eminent Domain and Environmental Litigation, 17 p. (1990)

  • Legal Research Digest 17: The Public Duty Defense to Tort Liability, 25 p.  (1990)

  • Legal Research Digest 18: Supplement to Planning and Precondemnation Activities as Constituting a Taking Under Inverse Law, 10 p. (1991)

  • Legal Research Digest 19: Continuing Project on Legal Problems Arising Out of Highway Programs, 11 p. (1991)

  • Legal Research Digest 20: Supplement to Legal Aspects of Historic Preservation in Highway and Transportation Programs, 40 p. (1991)

  • Legal Research Digest 21: Supplement to Liability of the State for Highway Traffic Noise, 8 p. (1991)

  • Legal Research Digest 22: Authority of State Departments of Transportation to Mitigate the Environmental Impact of Transportation Projects, 12 p. (1992)

  • Legal Research Digest 23: Supplement to Valuation Changes Resulting From Influence of Public Improvements, 21 p. (1992)

  • Legal Research Digest 24: Continuing Project on Legal Problems Arising Out of Highway Programs, 8 p.  (1992)

  • Legal Research Digest 25: Supplement to Minority and Disadvantaged Business Enterprise Requirements in Public Contracting, 28 p. (1992)

  • Legal Research Digest 26: Supplement to Legal Implications of Highway Department's Failure to Comply with Design, Safety, or Maintenance Guidelines, 10 p. (1992)

  • Legal Research Digest 27: Supplement to Liability of the State for Injury or Damage Occurring in Motor Vehicle Accident Caused by Trees, Shrubbery, or Other Vegetative Obstruction Located in Right-of-Way or Growing on Adjacent Private Property, 12 p. (1993)

  • Legal Research Digest 28: Preventing and Defending Against Highway Construction Contract Claims: The Use of Changes or Differing Site Conditions Clauses and New York State's Use of Exculpatory Contract Provisions and No Claims Clauses, 51 p. (1993)

  • Legal Research Digest 29: Highways and the Environment: Resource Protection and the Federal Highway Program, 46 p. (1994)

  • Legal Research Digest 30: Legal Issues Relating to the Acquisition of Right of Way and the Construction and Operation of Highways over Indian Lands, 24 p. (1994)

  • Legal Research Digest 31: Federal Air Quality Laws Governing State and Regional Transportation Planning, 31 p. (1994)

  • Legal Research Digest 32: Federalism and the Intermodal Surface Transportation Efficiency Act of 1991, 23 p. (1995)

  • Legal Research Digest 33: Freedom of Information Acts, Federal Data Collections, and Disclosure Statutes Applicable to Highway Projects and the Discovery Process, 28 p. (1995)

  • Legal Research Digest 34: Transportation Agencies as Potentially Responsible Parties at Hazardous Waste Sites, 29 p. (1995)

  • Legal Research Digest 35: Continuing Project on Legal Problems Arising Out of Highway Programs, 8 p.  (1995)

  • Legal Research Digest 36: Photographic Traffic Law Enforcement, 43 p.  (1996)

  • Legal Research Digest 37: Indemnification and Insurance Requirements for Design Consultants and Contractors on Highway Projects, 25 p. (1996)

  • Legal Research Digest 38: Risk Management for Transportation Programs Employing Written Guidelines as Design and Performance Standards, 22 p. (1997)

  • Legal Research Digest 39:Liability of Contractors to State Transportation Departments for Latent Defects in Construction after Project Acceptance, 14 p. (1997)

  • Legal Research Digest 40: Liability of Highway Departments for Damages Caused by Stormwater Runoff, 23 p. (1998)

  • Legal Research Digest 41: Application of Outdoor Advertising Controls on Indian Land, 31 p. (1998)

  • Legal Research Digest 42: Enforcement of Environmental Mitigation Commitments in Transportation Projects: A Survey of Federal and State Practice, 18 p. (1999)

  • Legal Research Digest 43: Application of the Fourth Amendment to the Inspection of Commercial Motor Vehicles and Drivers, 33 p. (2000)

  • Legal Research Digest 44: Reexamination of the Line between Governmental Exercise of the Police Power and Eminent Domain, 63 p. (2000) 

  • Legal Research Digest 45: The States' Immunity From Suit in Federal and State Court, 24 p. (2000)


Phase I, a survey of state departments of transportation, states attorneys general guidance, agency practices, reported decisions, administrative rules and guidance (to determine what they doing with the information), has been completed, and a report with the conclusions was submitted to TRB. The panel subsequently decided to proceed with Phase II which consists of further research, case and statutory/regulatory analysis, and additional primary data collection.
Status: Project terminated.



See below additional information regarding these projects based on data from our semi-automated system.

20-06/Topic 17-01 Update of Selected Studies in Transportation, Volume One: Transportation Contract Law

This product is available on CD from the TRB bookstore and can be downloaded from the TRB website.

20-06/Topic 17-02 Tort Liability Defense Practices for Design Flexibility
20-06/Topic 17-03 First Responders
20-06/Topic 17-04 Legal Aspects of Performance-Based Specifications for Highway Construction and Maintenance Contracts
20-06/Topic 17-05 The Ramifications of Post-Kelo Legislation on State Transportation
20-06/Topic 18-01 Legal Aspects of Conservation Easements—A Primer for Transportation Agencies
20-06/Topic 18-02 Enforceability of Local Hire Preference Programs
20-06/Topic 18-03 Legal Issues Surrounding the Use of Digital Intellectual Property on Design and Construction Projects
20-06/Topic 19-01 Eminent Domain and Fair Market Value in a Depressed Real Estate Market
20-06/Topic 19-02 Legal Aspect of Environmental Permitting in the Emergency Response Environment

20-06/Topic 19-03 Effect of MUTCD on Tort Liability of Government Transportation Agencies
20-06/Topic 19-04 Use of Social Media in Transportation Agencies
Status: Terminated.

20-06/Topic 20-02 Liability of Design Builders for Design, Construction and Acquisition Claims

Published as Legal Research Digest 68.

20-06/Topic 20-03 Permissible Arranges in Scope of Work for Construction Contracts

Published as NCHRP LRD 67.

20-06/Topic 20-04 Due Diligence for Insurance Coverage in Transportation Construction Contracts
Published as NCHRP LRD 66.

20-06/Topic 21-01 A Look at the Legal Environment for Driverless Vehicles
20-06/Topic 21-02 Claims Related to Stormwater Discharges
20-06/Topic 21-03 Takings and Mitigation
20-06/Topic 21-04 Liability of Transportation Entity for the Unintentional Release of Secure Data or the Intentional Release of Monitoring Data on Movements or Activities of the Public
20-06/Topic 22-01 Legal Requirements for State DOT Participation in Conservation Plans
20-06/Topic 22-02 Liability of State Departments of Transportation for Design Errors
20-06/Topic 22-03 Primer on Patentability and Use of Ideas Developed by Contractors Performing Work for State and Federal Transportation and Local Planning Agencies
20-06/Topic 22-04 Summary of Federal Law Restricting Use of Highway Safety Data in Tort Litigation
20-06/Topic 23-01 Condemnation Hierarchy-Competing Public Uses
20-06/Topic 23-04 The Effectiveness of State False Claims Acts in Protecting State Transportation Funding
20-06/Topic 23-05 Update of Selected Studies in Transportation Law: Volume Eight, Section 3: Indian Transportation Law
Published as NCHRP LRD 76.

20-06/Topic 23-06 Update of Selected Studies in Transportation Law: Volume Eight, Section 1: Transportation Agencies and Civil Rights
20-06/Topic 24-01 Buy America Requirements For Federal Highway Projects

20-06/Topic 24-02 Potential Liability Associated with Unstable Slope Management Programs

20-06/Topic 24-03 Guidelines for Drafting Liability Neutral Transportation Engineering Documents
20-06/Topic 24-04 The Legal Issues Concerning the Use of Transportation Facilities to Generate Revenue for State DOTs
20-06/Topic 24-05 Fix It, Sign It, or Close It: State of Good Repair in an Era of Budget Constraints
20-06/Topic 25-01 Public Liabilities Relating to Driveway Permits

Status: Published as NCHRP LRD 85

20-06/Topic 25-03 Managing Enhanced Risk in the Mega Project Era

 Status: Research Completed. Published as NCHRP Legal Research Digest 86.

20-06/Topic 25-04 Laws Governing Homeless Encampments in Transportation Rights-of-Way

STATUS: Completed. Published as NCHRP Legal Research Digest 87.

20-06/Topic 25-05 The Legal Issues Associated with Consequential Damages Provisions in Construction Contracts

Status: Completed. Published as NCHRP LRD 88.

20-06/Topic 25-06 Legal Issues and Strategies for Best-Value Procurement for Highway Construction

Status: Completed. Published as NCHRP Legal Research Digest 90.

20-06/Topic 25-07 Review of Statutory and Case Law on Planning and Environmental Linkages

Status: Completed. Published as NCHRP LRD 89

20-06/Topic 26-01 Effects of Indian Treaties on Development and Operation of Transportation Facilities

Status: Research in Progress.

20-06/Topic 26-02 Analysis of Arbitration and Holdings in Construction Disputes

Status: Research is Completed.

20-06/Topic 26-03 Multistate Coordination and Harmonization for AV Legislation

Status: Research is Completed. In Publication.

20-06/Topic 26-04 Pandemics and Contractual Issues

Status: Research is Completed.

20-06/Topic 27-01 Transportation Agency Liability for Roadside Safety Hardware

20-06/Topic 27-02 State and Local Suspension and Debarment Programs of Contractors

Joint project with TCRP J-05/Topic 22-02.

20-06/Topic 27-03 Environmental and Planning Law and Transportation

20-06/Topic 27-04 Managing Performance for Innovative Technology Contracts

20-06/Topic 27-05 Addressing Liability Issues of Proactive Safety Improvements

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