PLENARY SESSION: Legal Updates and Perspectives from USDOT Senior Legal Officers

In this kick-off session, you will hear from and interact with a panel of senior legal officers with USDOT including the FHWA, FTA and FRA. You will learn about current policy initiatives at USDOT, hot legal topic, key regulatory actions and other important developments shaping our transportation system.

SESSION 2: Build America Buy America

The Build America, Buy America Act (BABA), a key piece of the Infrastructure Investment and Jobs Act (IIJA), significantly changed the Buy America domestic preference requirements on Federal-aid infrastructure projects with its enactment in 2021. Transportation stakeholders, from public agencies to construction contractors and the various parties making up the construction supply chain, continue to discuss the scope of the new BABA requirements and their implementation. This session will address: 1) BABA requirements generally, including implementing rules and waivers to date; 2) the new “construction material” domestic preference requirement; 3) documenting and certifying compliance with BABA requirements; and 4) the role of the Office of Management and Budget’s new Made in America Office in implementing BABA, including its role in the revised waiver process.

SESSION 3: Game Changer or Same Law, Different Day: Consumer Expectations, Liability, Regulations and Policy for AV’s

Many believe that AVs are a game-changer from typical cars, and consumers’ lack of familiarity and potential over-reliance on “over-hyped” AV capabilities creates unprecedented safety risks. But how different really is this advance from previous advances in vehicle technology including increased use of computers and connectivity? What can we learn from past consumer adoption and growing pains?  What are the latest trends in laws, policies, and enforcement related to automation functions and marketing?

In this session, we will hear from a range of stakeholders on how consumer expectations relate to liability, regulation, and policy considerations for AVs, including the relative responsibility for car / technology companies; state, federal and local regulators, and users; liability based on “deceptive naming or marketing” and for encouraging consumer reliance; and what laws may need to change to unlock the future for AVs.

SESSION 4: Confusion and Conflation in Access Management

There are increasingly shifting sands between the exercise of eminent domain and police power when it comes to access connections from private property to public roadway. The nation’s roadways are among the most dangerous public facilities in the world and the causal connection between property access and crashes is well established.

a.      There is a conflation of property value and business value in courts, and State Agencies are increasingly being forced to pay for business losses for any access modification, including installation of medians.

b.      Public agencies are finding it difficult to make elected/appointed officials and courts OWN their decisions to prioritize business value over public safety.

c.       Property developers are finding it much easier to shift their risk and responsibility to the public.

d.      Damages (real or imagined) awarded for supposed impacts of access management transfers taxpayer monies to private hands, bypassing the legislature in the process.

4:00 pm - 5:30 pm
Concurrent Sessions

SESSION 5: Combatting Human Trafficking 

The role of the transportation sector including state DOT’s is significant but not widely known. The panel will address legal issues and practical tools used to combat the scourge of human trafficking, related federal and state legislation, the results of a national survey of transportation employees and trafficking survivors and the training, educational materials and ideas resulting from the work of a multi-state DOT task force.

SESSION 6: Multi-modal Legal Issues in High-Speed Rail Projects

The Infrastructure Investment and Jobs Act (IIJA), also known as the Bipartisan Infrastructure Law (BIL), included an unprecedented $170 billion for improving railroads, which could include infrastructure for high-speed rail.  Although high-speed rail is in its infancy in the United States, the California High-Speed Rail Authority has about 120 miles of high-speed rail tracks under construction, and Brightline West is planning to break ground on a high-speed rail link between Las Vegas and Los Angeles.  This panel will discuss emerging multi-modal legal issues in project development and environmental review for high-speed rail projects from a variety of perspectives, including that of a federal lead agency and private practice attorneys.

SESSION 7: Alternatives to Fixed Price Contracts

The market for large infrastructure projects has undergone numerous changes 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. Contractors are seeking alternatives to lump sum pricing. A panel of industry experts will discuss the current state of the market for construction and service projects and the resulting impacts on contractor availability and competition. The discussion will include popular alternatives to lump-sum pricing, 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.

SESSION 8: It’s Electric…, but what about the Boogie Woogie Woogie?  

The “all-in” federal funding approach to support the adoption of electric vehicles (EV) has produced significant momentum around the installation of EV charging infrastructure nationally. However, guidance is still rolling out around issues like technical specifications, Buy America, use of public right-of-way, public private partnerships, and tax credits. Understanding how to proactively navigate these issues will be critical to making sure we are all dancing in step when considering the new ecosystem that electrification and other alternative fueling options provide for the transportation system.

Session 9: Summer 2023 IIJA Update 

The Infrastructure Investment and Jobs Act (IIJA), commonly referred to as the Bipartisan Infrastructure Law (BIL) presents state DOTs, MPOs, local governments, and the private sector with a once in a generation opportunity to invest in improvements to our transportation infrastructure. This session will provide an update on current developments and trends relating to the IIJA, including a review of grants already awarded. The panel will update progress made on the implementation of the new law and how the various policy initiatives of the Biden Administration are impacting that implementation, including Justice40 and other initiatives aimed advancing environmental justice, sustainability and resilience initiatives, and more.

SESSION 10: Alternative Uses of Right-of-Way

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 requires acquiring agencies to offer to purchase these remnants. The panel will address the challenge to public agencies to manage these remnant parcel inventories which is significant and growing.

SESSION 11: Post Covid Impacts to Supply Chain and Labor Challenges

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. A panel of industry experts will discuss how various contract models traditionally address labor and materials supply and relief for contractors. The panel will also explore 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 will provide guidance regarding legal and contractual issues that arise from these various contractual approaches, as well as applicable federal requirements

SESSION 12: Council of Environmental Quality Interim NEPA Greenhouse Gas (GHG) Guidance and Recent Caselaw

In January 2023, the Council for Environmental Quality issued interim guidance on consideration of greenhouse gas emissions and climate change in the NEPA process.  This interim guidance provides information regarding how federal lead agencies should categorize and analyze GHG impacts in NEPA documents and how those agencies should address infrastructure resiliency.  This panel will address this interim guidance, current caselaw on GHG issues, and will provide best practices and case studies for addressing GHG emissions and climate change in NEPA documents.  The panel will provide a variety of perspectives from CEQ, state DOTs (both with and without NEPA assignment), and private practice.  This will be an interactive session and will include a robust Q&A portion.

SESSION 13: Rail Safety: Breaking News  

Rail safety and the potentially wide- ranging consequences of matters such as derailments, the transport of hazardous materials and long trains blocking highway crossings are becoming increasingly prominent in today’s news. The panel will present a discussion of caselaw and statutory development; a case study of a BSNF crash on railroad and MoDOT property that resulted in a $20 million verdict against the railroad, the Rail Crossing Elimination Program and the recent East Palestine derailment including ensuing legislative proposals.

SESSION 14: Show Me the Money [or Riders]!

 Transit agencies are facing a financial cliff as COVID relief funding expires. Some agencies are trying to fill the gap through increased fare enforcement, while others are going in the opposite direction by eliminating fares. What are the legal and financial concerns surrounding both approaches, and is there a reasonable middle ground? What considerations are being explored to support a more adaptable and demand-responsive system?

8:00 am—9:30 pm
Concurrent Sessions

SESSION 15: The Realities of ROW for Project Managers

The right-of-way phase can prove to be a profound “gotcha” for transportation projects. This panel will look at the regulatory compliance implications of the phenomenon known as “The Letting Date Squeeze” which often results in the right-of-way phase being shoe-horned into the project development schedule without sufficient consideration of the realities of required activities such as 90-day notices, and the inability to make written offers until offers of just compensation are approved and environmental clearances are in hand.

SESSION 16: Do We Need the Feds? An Exploration of the Roles of Federal, State, Local, and Industry Actors in Enabling the Future of Mobility

 Much is said about the need for federal regulation to advance new technologies such as automated and connected vehicles.  But the question is “Do we really need the Feds, and if so, when?” Federal regulation is a slow, deliberate process, and states, localities, and industry have continued to advance testing and deployment of new transportation technologies without significant federal guidance in key areas including safety standards, testing procedures, and data security and privacy.  At the same time, federal agencies have made progress in knowledge-building and hiring talent to match future needs. 

In this session, we will hear from stakeholders across the industry to revisit the history of traditional roles of federal, state, and local governments in regulating transportation; discuss progress made in defining regulatory roles including for automated and connected vehicles; probe the relative strengths and weaknesses of different agencies to solve different problems; and consider how legal concepts such as “preemption” and “sovereign immunity,” and limits on funding sources impact advancing new technologies.  We also will discuss the roles that industry actors and standards bodies have played in advancing best practices for safety, testing, and data security and privacy.  And finally, we will explore what regulatory and legal changes may better facilitate cooperation in the future.

10:00 am - Noon

ETHICS SESSION: Civility and Professional Responsibility: Nice Guys (and Gals) Can Finish First

For years, we have heard complaints about colleagues and opposing counsel who take the adversarial nature of the legal system to extremes.  Whether it is enduring “Rambo” style litigation tactics from the other side, dealing with abusive written or oral discovery practices, or seeing litigants and court personnel (even judges) being treated with intemperance or hostility, we probably have all experienced the anxiety-inducing effects that incivility in our profession creates.  The Model Rules, rules of civil procedure, and numerous court cases interpreting these rules provide guidance on how civility and professional responsibility overlap. In this way, maintaining a professional and civil demeanor in carrying out our duties as officers of the court clearly goes beyond living by the “Golden Rule.”  This session will discuss how the Model Rules speak to civility.  We will review the many examples of “civility codes” and oaths of admission to practice law around the country that address expected standards of conduct.  We will also provide examples of how courts have increasingly implemented severe consequences in an effort to promote civility and to punish bad behavior.

Finally, we will briefly update attendees on recent actions taken by the courts and disciplinary boards stemming from the 2020 presidential election challenges.