PREAMBLE

The National Cooperative Highway Research Program (NCHRP) plans to award a contract for a study and report. Legal reports sponsored by this project are published in NCHRP’s Legal Research Digest (LRD) series. Publications are available to some libraries and approximately 4,000 transportation lawyers and officials through the TRB distribution network.

BACKGROUND

Published jointly by NCHRP and TCRP, TRB's Selected Studies in Transportation Law (SSTL) is designed to help state highway departments and public transportation agencies keep abreast of operating practices and legal elements of specific problems in highway and transit law. The SSTL WebResource provides access to the original eight volumes of the series (Construction Contract Law, Eminent Domain, Environmental Law and Transportation, Tort Liability of Highway Agencies, Transit Law, Transit Labor 13(c) Decisions, Transit Charter Bus Service: Decisions and Documents, and Transportation Law and Government Relations) as well as six recent updates of selected material.  

Because the main text of SSTL Volume 3: Environmental Law and Transportation was published in 2003 and a supplement was published in 2010, the entire volume should be rewritten and published in a unified format. The title should be changed to "Environmental and Planning Law and Transportation." A revised volume can incorporate updated statutory authority, new policy initiatives, regulatory changes, and court decisions. New statutory authority comes from the three reauthorizations [Bipartisan Infrastructure Law, Fixing America's Surface Transportation (FAST) Act, and Moving Ahead in Progress in the 21st Century (MAP-21) Act] that have been passed since 2010. Policy initiatives include focused investment in disadvantaged areas and the Planning and Environmental Linkages process. Regulatory changes include amendments to the regulations governing the National Environmental Policy Act (NEPA), Section 4(f) of the U.S. Department of Transportation Act and Section 106 of the National Historic Preservation Act of 1966 (NHPA), and a rewrite of 23 CFR Part  771 Environmental Impact and Related Procedures. 

All surface transportation modes (highway, transit, freight and passenger rail, and ports) should be discussed. This research should include the statutes, rules, and guidance that govern Federal Highway Administration (FHWA), Federal Transit Administration (FTA), Federal Railroad Administration (FRA), Surface Transportation Board (STB), and the Maritime Administration. The STB can become important for state DOTs when it approves the purchase of one railroad by another. The resulting shifts in rail traffic often cause delays and the need to construct grade separations. Increased activity at ports can influence the need for highway improvements. Many state DOTs also fund transit projects and passenger rail developments.

This digest will help all involved in the development, construction, and planning of transportation projects, including attorneys, planners, state transportation agencies, metropolitan regional planning organizations, federal personnel, consultants, and contractors.

OBJECTIVE

The objective of this research is to produce a report that updates SSTL Volume 3: Environmental Law and Transportation. The existing outline may be used: 

1. Environmental Law in Transportation Planning;
2. Project Environmental Analysis;
3. Other Environmental Laws;
4. Acquisition of Sites;
5. Construction and Operation of Sites; and
6. Litigation.

Notable initiatives include the following:

• Climate change (this can be addressed in chapters 1, 2, 3, 5, and 6).  Climate change also affects project development by the need to calculate changes in greenhouse gas emissions and the cumulative effects of multiple projects on greenhouse gases. Climate change initiatives are occurring in many of the long-range plans adopted by metropolitan planning organizations around the country.
• Environmental justice and transportation equity (can be addressed in chapters 1, 2, and 5). Environmental justice concerns arise because of the location of port and intermodal facilities and often have related litigation issues.
• Sustainability (can be discussed in chapters 1, 2, and 5).
• Tribal considerations (should appear in chapters 1 and 3). Many state DOTs build projects on Indian lands. The federal lands program should be included in Chapter 1 since state DOTs often make these projects.
• Intermodal facilities (should be discussed in chapters 1 and 5. These facilities can often cause highway improvements to be constructed.

This project shall examine the various statutory and regulatory authorities passed since 2010, including the three major reauthorizations (Bipartisan Infrastructure Law, FAST Act, and MAP-21). 

Legal research is needed to update and summarize the new applicable federal policy initiatives, and statutory and regulatory changes passed since 2010. Further, litigation has continued, requirements have changed, and the new emphasis on climate change and equity has altered the landscape.

RESEARCH IMPLEMENTATION

This research will be conducted in four tasks under a firm fixed-price agreement.

Task 1. Develop a research plan and detailed report outline. The consultant will (1) prepare a plan to conduct research and collect relevant material, and (2) propose a detailed report outline. The research plan should be 8-12 pages, including a proposed survey if one is to be used.  The report outline should contain sufficient detail to show the NCHRP project panels what a 75-100-page report will contain and include the estimated pagination for each proposed section and subsection. This material will be submitted to NCHRP for approval.

Task 2. Conduct research. After approval of the work plan, the consultant should conduct additional research, case analysis, and statutory and regulatory analysis.

Task 3. Submit draft report in accordance with the approved work plan (including modifications required by NCHRP).

Task 4. Submit final report. The consultant should anticipate making two revisions to the report before it is finalized. One revision may be required after review by NCHRP staff and members of a subcommittee. Final revisions may be necessary after the full committee has reviewed the report.

FUNDING: $200,000

PAYMENT SCHEDULE

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).

HOW TO PROPOSE

Proposals should be submitted as a single PDF with the following information in the following order:

1. Summary sheet
    
2. A research plan that describes each task in sufficient detail to allow the review panel to make an informed assessment of the likelihood of the proposer's success. The plan must include:
   • An introduction that provides a concise overview of the proposer's understanding of the topic and the issues presented, the proposed team's experience and qualifications relevant to the topic, and the team's proposed approach to conducting the research and preparing the report;
   • A brief outline of the proposed contents of the report;
   • Detailed information on the proposed research methodology for each task in sufficient detail to permit evaluation of achieving the objective(s);
   • A statement of resources (e.g., hours per person per task) allocated to this project, and timelines for each task;
   • Resumes of key team members along with a description of responsibilities;
   • Any additions, deletions, or changes you wish to suggest to the scope of work for undertaking the work; and
   • A list of relevant prior publications (one or two samples may be enclosed).

SPECIAL NOTES

A. Proposers should read Guidance for Working on NCHRP and TCRP Legal Projects for more information.

B. The Information and Instructions for Preparing Proposals for the Transportation Research Board’s Cooperative Research Programs have been modified to include a revised policy and instructions for disclosing Investigator Conflict of Interest. For more information, refer to chapter IV of the instructions. A detailed definition and examples can be found in the CRP Conflict of Interest Policy for Contractors. The proposer recommended by the project panel will be required to submit an Investigator Conflict of Interest and Disclosure Form as a prerequisite for contract negotiations. 

C. Proposals will be rejected if any of the proposed research team members work for organizations represented on the project panel. The panel roster for this project can be found at this link. Proposers may not contact panel members directly; this roster is provided solely for the purpose of avoiding potential conflicts of interest. 

D. Proposals are evaluated by the NCHRP staff and project panels consisting of individuals collectively knowledgeable in the problem area. The project panel will recommend their first choice proposal considering the following factors: (1) experience and knowledge in the subject area; (2) experience in research writing (examples of prior writing); (3) prior relevant publications, including briefs; (4) quality and commitment of staff and other resources assigned to the project; (5) schedule for completing work; and (6) price. A recommendation by the project panel is not a guarantee of a contract. The National Academy of Sciences (NAS - the contracting authority for the National Academies of Sciences, Engineering, and Medicine) will conduct an internal due diligence review and risk assessment of the panel's recommended proposal before contract negotiations continue. 

E. Copyrights - All data, written materials, computer software, graphic and photographic images, and other information prepared under the contract and the copyrights therein shall be owned by the National Academy of Sciences. The contractor and subcontractors will be able to publish this material for non-commercial purposes, for internal use, or to further academic research or studies with permission from TRB Cooperative Research Programs. The contractor and subcontractors will not be allowed to sell the project material without prior approval by the National Academy of Sciences. By signing a contract with the National Academy of Sciences, contractors accept legal responsibility for any copyright infringement that may exist in work done for TRB. Contractors are therefore responsible for obtaining all necessary permissions for use of copyrighted material in TRB's Cooperative Research Programs publications. For guidance on TRB's policies on using copyrighted material please consult Section 5.4, "Use of Copyrighted Material," in the Procedural Manual for Contractors.