TRB's 62nd Annual Workshop on Transportation Law
Chris Kramer, David Miller, Christine Ryan, Nancy Smith and Ann-Therese Schmid participated in the Transportation Research Board’s 62nd Annual Transportation Law Workshop that took place July 23 – 26, 2023 in Richmond, VA.
On July 24th, Chris moderated the session “Confusion and Conflation in Access Management.” This panel discussed the increasingly shifting sands between the exercise of eminent domain and police power when it comes to access connections from private property to public roadway. Chris also led a discussion on “Alternative Uses of Right-of-Way” on July 25th. During this session, the panel discussed how Federal regulations identify uneconomic remnants as remainders of land not required for traditional transportation project uses, but with no economically viable use remaining to them, and require acquiring agencies to offer to purchase these remnants. The panel addressed the challenge to public agencies to manage these remnant parcel inventories and put them to productive use. Chris then returned on July 26th to moderate a panel on “The Realities of ROW for Project Managers.” This panel discussion explored how right-of-way phase can prove to be a profound “gotcha’ for transportation projects.
David led an important discussion about the interim guidance on greenhouse gas emissions and climate change in the NEPA process during “Council on Environmental Quality Interim NEPA Greenhouse Gas (GHG) Guidance and Recent Caselaw” on July 25th. This session addressed the information provided by the Council for Environmental Quality (CEQ) in January 2023 regarding the categorization and analysis of GHG impacts in NEPA documents, as well as infrastructure resiliency. The panel delved into the details of the interim guidance, discussing recent case law related to GHG issues. Additionally, panelists presented best practices and case studies for effectively addressing GHG emissions and climate change in NEPA documents.
Christine addressed “Post Covid Impacts to Supply Chain and Labor Challenges” on July 25th. This session discussed how the transportation construction industry is experiencing unprecedented supply chain disruptions and labor shortages, resulting in cost increases and delays to the development of transportation infrastructure projects and operation of services contracts. The panel discussed how various contract models traditionally address labor and materials supply and relief for contractors and also explored different legal and contractual mechanisms that agencies are employing to address both contractor and owner concerns regarding current supply chain and labor challenges. This session provided guidance regarding legal and contractual issues that arise from these various contractual approaches, as well as applicable federal requirements.
Nancy and Ann-Therese discussed “Alternatives to Fixed Price Contracts” on July 25th. The panel examined the numerous changes the market for large infrastructure projects has undergone in the past several years, one of which is an increasing aversion by some contractors and service providers to the traditional fixed-price contract model. The panel discussed the current state of the market for construction and service projects and the resulting impacts on contractor availability and competition. The discussion included popular alternatives to lump-sum pricing and contractual mechanisms to mitigate the associated risks (such as contract incentives and non-traditional remedies), as well as procurement options related to contractor selection methods and alternative delivery methods involving negotiated pricing like progressive design-build and CM/GC.
