Can Florida take over federal NEPA review for state highway projects from the U.S. DOT?

Plain-English summary

Under 23 U.S.C. § 327 (as amended by MAP-21, the Moving Ahead for Progress in the 21st Century Act), a state can apply to the U.S. Federal Highway Administration (FHWA) to take over the federal government's review responsibilities under the National Environmental Policy Act (NEPA) and related environmental laws for federal-aid highway projects in that state. The application is a paperwork-heavy package, and one mandatory element is a certification by the state Attorney General (or another state official empowered by state law) that the state has the legal authority to assume those duties, has waived sovereign immunity to suit in federal court for actions taken under the assignment, and has a public-records regime comparable to the federal Freedom of Information Act.

This 2016 letter from Senior Assistant AG Gerry Hammond is that certification, sent to FHWA Administrator Gregory Nadeau in support of FDOT's NEPA-assignment application. The letter certifies three things:

1. Section 334.044(34), Florida Statutes, as created by Chapter 16-181, Laws of Florida (2016), gives FDOT the legal authority to assume USDOT's NEPA review duties for highway projects within Florida.

2. The same statute provides a limited waiver of Florida's sovereign immunity to federal-court civil suit, in line with 23 U.S.C. § 327. The waiver is limited to NEPA-related actions delegated to FDOT on state highway projects.

3. Florida's Public Records Act, Chapter 119, Florida Statutes, is comparable to the federal Freedom of Information Act (5 U.S.C. § 552), and any decision about availability of public records under Florida law is reviewable in court.

Currency note

This opinion was issued in 2016. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Section 334.044(34) has been carried forward into the current Florida Statutes, and Florida's NEPA assignment has been in operation since 2017 under a memorandum of understanding with FHWA. The federal NEPA-assignment program has continued to evolve, including under the Infrastructure Investment and Jobs Act and CEQ regulatory changes. For current scope and procedures, consult the most recent FDOT-FHWA MOU and the FDOT NEPA Assignment Program website.

Common questions

Q: What is "NEPA assignment"?
A: Under 23 U.S.C. § 327, a state may apply to FHWA to take over the federal government's review responsibilities for highway projects under NEPA (42 U.S.C. § 4321 et seq.) and certain related federal environmental laws. When FHWA approves the application and signs a memorandum of understanding with the state DOT, the state assumes those responsibilities for the categories of projects covered.

Q: Why does the state Attorney General have to certify this?
A: FHWA's implementing regulations at 23 C.F.R. § 773.109(a)(6)-(7) require the state's application to include a certification from the AG (or another official empowered to do so) that the state has the legal authority to assume the federal responsibilities, has waived sovereign immunity to federal suit consistent with 23 U.S.C. § 327, and has a comparable public-records law. The AG certification supplies the FHWA decision-maker with the legal foundation for approval.

Q: Which Florida statute actually authorized FDOT to take this on?
A: Section 334.044(34), Florida Statutes, created by Chapter 16-181, Laws of Florida (2016). The text the certification quotes authorizes FDOT "to assume the responsibilities of the United States Department of Transportation with respect to highway projects within the state under the National Environmental Policy Act of 1969, 42 U.S.C. ss. 4321 et seq., and with respect to related responsibilities for environmental review, consultation, or other action required under any federal environmental law pertaining to review or approval of a highway project within the state."

Q: Does the sovereign-immunity waiver expose Florida to broad federal-court liability?
A: No, the waiver is narrow. The certification describes it as "limited to only those actions delegated to the FDOT and related to carrying out its NEPA duties on state highway projects." It tracks the waiver Congress expected when it set up the assignment program in 23 U.S.C. § 327, so the state stands in the federal government's shoes for the limited purpose of being sued over NEPA-assignment actions on highway projects.

Q: Why does Florida's public records law matter to an environmental-review program?
A: NEPA decision-making generates voluminous documents (environmental assessments, environmental impact statements, agency consultations, public-comment files). Under federal NEPA, those records are public under the federal Freedom of Information Act. When the state takes over the federal role, it should provide a comparable level of public access. The certification confirms that Chapter 119 of the Florida Statutes does so and that disputes are reviewable in court.

Q: What types of projects does the assignment cover?
A: The certification itself does not list project types; that is settled in the MOU between FDOT and FHWA. In practice, NEPA assignment typically covers federal-aid highway projects within the state's responsibility. Some types of projects, such as those requiring Section 4(f) determinations on certain properties, may be excluded by the MOU.

Background and statutory framework

The federal NEPA-assignment program traces to the Surface Transportation and Uniform Relocation Assistance Act and was substantially expanded by MAP-21 in 2012. The program reflects a federal judgment that state DOTs can handle the NEPA paperwork for highway projects within their states, freeing FHWA to focus on oversight and on projects of national significance. By 2016, several large states had received NEPA assignment under § 327, and Florida moved to join them with the Chapter 16-181 legislation.

Three Florida statutes support the AG's authority to issue the certification. Section 16.01(2) makes the AG responsible for performing duties prescribed by the Florida Constitution and other duties required by law or legislative resolution. Section 16.01(3) authorizes the AG to give an "official opinion and legal advice in writing on any question of law relating to the official duties of the requesting officer." Section 16.015 makes the Department of Legal Affairs responsible for providing all legal services required by any state department, which is the textual basis for an Assistant AG signing on behalf of the Department.

Section 334.044(34) gave FDOT the substantive authority and supplied the sovereign-immunity waiver. The certification did not stake out new legal ground; it confirmed the legislature's choices for FHWA's recordkeeping.

Citations and references

Federal authority:

• 23 U.S.C. § 327 (NEPA assignment to states)
• 23 C.F.R. § 773.109(a)(6)-(7) (FHWA application requirements)
• 79 Fed. Reg. 55,381 (Sept. 16, 2014) (FHWA final rule on NEPA assignment applications)
• 42 U.S.C. §§ 4321 et seq. (NEPA)
• 5 U.S.C. § 552 (Freedom of Information Act)
• MAP-21, Pub. L. No. 112-141 (2012)

Florida statutes:

• § 334.044(34), Fla. Stat. (FDOT authority to assume USDOT NEPA responsibilities)
• § 16.01, Fla. Stat. (Attorney General duties)
• § 16.015, Fla. Stat. (Department of Legal Affairs)
• Chapter 119, Fla. Stat. (Public Records Act)
• Chapter 16-181, Laws of Florida (2016) (creating § 334.044(34))

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/nepa-dept-of-transportation
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/1517

Original opinion text

Mr. Gregory G. Nadeau

Administrator

Federal Highway Administration

1200 New Jersey Avenue Southeast

Washington, DC 20590-9898

Re: Certification required by FHWA for delegation of NEPA and other responsibilities to FDOT

Dear Mr. Nadeau:

Pursuant to the authority provided by the Moving Ahead for Progress in the 21st Century Act or "MAP-21," and, more specifically, 23 U.S.C. s. 327 as amended by MAP-21, the Florida Department of Transportation ("FDOT") has advised this office that it is submitting an application to FHWA for delegation of responsibility for compliance with the National Environmental Policy Act ("NEPA") and other Federal environmental laws ("NEPA delegation") for Federal highway projects. On September 16, 2014, FHWA published rules setting forth the requirements for such applications.[1] FHWA's rules specify that a State's application for NEPA assignment must include certain certifications by the State's Attorney General or other State official legally empowered to do so by State law.[2] The purpose of this letter is to provide the certifications required by FHWA to accompany FDOT's application for NEPA delegation.

Florida's Attorney General is statutorily authorized to "perform the duties prescribed by the Constitution of this state and also perform such other duties appropriate to his or her office as may . . . be . . . required . . by law or by resolution of the Legislature."[3] It is the responsibility of the Florida Attorney General to give her "official opinion and legal advice in writing on any question of law relating to the official duties of the requesting officer."[4] Further, it is the responsibility of the Department of Legal Affairs to provide "all legal services required by any department" of state government.[5] As a Senior Assistant Attorney General representing the Florida Department of Legal Affairs, I certify the following:

· As stated in section 334.044(34), Florida Statutes, as created by Chapter 16-181, Laws of Florida (2016), the Florida Department of Transportation is legally authorized by State law "[t]o assume the responsibilities of the United States Department of Transportation with respect to highway projects within the state under the National Environmental Policy Act of 1969, 42 U.S.C. ss. 4321 et seq., and with respect to related responsibilities for environmental review, consultation, or other action required under any federal environmental law pertaining to review or approval of a highway project within the state."

· Section 334.044(34), Florida Statutes, as created by Chapter 16-181, Laws of Florida (2016), provides a limited waiver of sovereign immunity to civil suit in federal court for the State of Florida consistent with 23 U.S.C. s. 327. The waiver is limited to only those actions delegated to the FDOT and related to carrying out its NEPA duties on state highway projects.

· The Florida Public Records Act, codified in Chapter 119, Florida Statutes, is comparable to 5 U.S.C. 552 (Freedom of Information Act), and provides that any decision regarding the availability of public records under State law is reviewable by a court of competent jurisdiction.

Sincerely,

Gerry Hammond

Senior Assistant Attorney General

Florida Department of Legal Affairs

GH/tsh

[1] See 79 FR 55381, Sept. 16, 2014.

[2] See 23 CFR s. 773.109(a)(6)-(7).

[3] Section 16.01(2), Fla. Stat. See also Art. IV, s. 4, Fla. Const.

[4] Section 16.01(3), Fla. Stat.

[5] Section 16.015, Fla. Stat.