Build a Record That Supports Your Project |  |
Construction permits for many projects, such as wind turbines, power plants, cell towers, and electric substations, are sometimes won only after a court battle. When an agency unreasonably delays, denies, or simply refuses to act on a permit application, a trip to court may be necessary. Regrettably, even when a project is approved, a trip to court may be required if a disgruntled activist group files a lawsuit to overturn the approval.
Regardless of why a project goes to court, success will largely depend on how well the record in support of the project has been developed. The record starts with carefully prepared project applications. Measurements, descriptions, layouts, drawings, visual impact analyses, and emissions data must be clear and consistent across all project documents. We also recommend that a project sponsor use a particularly effective technique known as pre-filed direct testimony to build a compelling public hearing record.
Pre-filed direct testimony is commonly used when an expert, agency head, or individual is called to testify before a congressional committee. A carefully worded statement is filed by the witness, who then orally summarizes the testimony. In the context of permit approval hearings, the benefit of pre-filed testimony is that it becomes part of the official administrative record and represents the project with a precise, thoughtful, carefully crafted message. All witnesses testifying at a hearing in support of a project should use pre-filed direct testimony to establish their position and build a compelling record.
Another important element in building a strong record is bringing a stenographer to all public hearings, particularly when opposition is anticipated. It is not unusual for government agencies to rely on cassette tapes or even handwritten notes as the official record of a proceeding. This type of official record is often difficult to duplicate and distribute and can easily be lost, damaged, or misplaced. A project sponsor that brings a stenographer to a hearing sends the message that it is serious about building and preserving a record and that it is committed to ultimately securing its approvals.
The record also benefits when an effort is made to compile and organize on a continuous basis all project correspondence, e-mails, and meeting notes. These documents are often essential to prevailing in a trial or with a dispositive motion.
By taking the time to prepare a complete application, by using pre-filed direct testimony, by building a stenographic record, and by scrupulously indexing all documents related to the review process, a project sponsor will build a record that supports the best possible outcome should litigation be required to secure project approvals.
Tags: administrative law, permitting