AASHTO PH01

Abstract

Scope: Overview This Practitioner’s Handbook provides advice for maintaining the project file during the National Environmental 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.1 The Handbook is intended primarily for projects in which the Federal lead agency is the Federal Highway Administration (FHWA), the Federal Transit 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, regardless 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 similar state public records laws. When a lawsuit is filed challenging a Federal agency’s 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 required to base its review of the agency’s decision on the information contained in the administrative record. A strong and complete record greatly enhances an agency’s ability to defend its decision; a weak or incomplete record negatively affects the defensibility of the agency’s decision. Legally, the responsibility for compiling the administrative record rests with the Federal agency whose decision has been challenged.2 If 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 administrative 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 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. For that reason, compiling the administrative record requires a substantial effort by the agency’s 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, 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. 1 The term “NEPA process” is used in this handbook to refer to a process that includes compliance with NEPA and other laws (not just NEPA itself). 2 The 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 assumed U.S. DOT responsibilities under a NEPA assignment program (23 USC 326 or 327).