T.R.B. Environment and Energy Research Conference

Raleigh, N.C

June 2010

Session #50 June 9, 2010Who's Suing Who About What:

The Latest in Surface Transportation Litigation

Moderator: Brett Gainer, Counsel, F.H.W.A., Western Legal Services

Sacramento, California

Panelists

• Linda Amidon,

Senior Attorney,

F.H.W.A. Southern Legal Services

Atlanta, Georgia

• William G. Malley,

Partner,

Law Firm of Perkins & Coie

Washington, D.C.

Overview of Current Trends and Issues In Surface Transportation

Environmental LitigationLinda Amidon

Federal Highway AdministrationOffice of Chief Counsel

Atlanta, Georgia

•What are the hot topics and trends in Federal surface transportation litigation today?

•What issues do plaintiffs raise most often?

•Who is doing the suing?

•What parts of the country are seeing a rise in surface transportation cases?

•What effect, if any, has the Federal six month “statute of limitations” had on surface transportation litigation?

•What is the D.O.T. litigation success rate?

Majority of Issues Raised in Environmental Cases

•NEPA•4(f)•National Historic Preservation Act (106)•Endangered Species Act•Clean Water Act•Noise Regulation•Emerging Issues

Litigation Stats for F.H.W.A.

• 73 Total Cases For F.H.W.A. as of February 2010

TYPES OF CASES

• PERSONNEL 30 OR 42% OF ALL CASES• ENVIRONMENTAL 38 OR 54% OF ALL CASES• FOIA 2 OR 3% OF ALL CASES• TORT 3 OR 4% OF ALL CASES

TOTAL CASES FOR:

• Southern 18 OR 25% OF ALL CASES• Western 14 OR 20% OF ALL CASES• HCC 12 OR 15% OF ALL CASES• Federal Land 9 OR 13% OF ALL CASES• Eastern 18 OR 25% OF ALL CASES• Mid-West 3 OR 4% OF ALL CASES• OUTSIDE 1 OR 2% OF ALL CASES

Why Do We Win Cases?

• Most Environmental cases against Federal Agencies must be brought in U.S. District Courts under the Administrative Procedure Act, or the A.P.A.

• A.P.A. cases are limited to judicial review of administration records…..no juries and no trials

Agencies Win Cases When….

• Following law and regulations

• Have good administrative records that illustrate the decision making process

• The state, federal, and consultant project team work closely and early on with the counsel

How Do We Lose Cases?

• Wrong interpretation of law

• Court got it wrong

• Bad administrative records

• Court was not happy with us

• Poor risk assessment

• Unreasonable expectations

All cartoons contained in this presentation are from The Federal Lawyer, for Educational purposes only.

Contact Information

Linda AmidonSenior Attorney

Federal Highway AdministrationOffice of Chief Counsel

Atlanta, Georgia

404.562.3670

Linda.Amidon@dot.gov