Edward V.A. Kussy - Partner

Edward Kussy has unparalleled legal experience in the areas of highway transportation law and environmental law, with a national reputation in both fields. He spent nearly four decades in the public sector, most recently at the Federal Highway Administration (FHWA) as the deputy chief counsel – the agency's top career lawyer.

Mr. Kussy has been instrumental in directing national transportation policy and funding decisions. He was a key participant in the drafting and implementation of the laws that currently govern the Federal aid highway program. He has helped develop and implement the innovative federal policies that support public-private partnerships, such as the U.S. Department of Transportation's policies on PABs, TIFIA and SEP-15.

Mr. Kussy has extensive expertise in dealing with the National Environmental Policy Act (NEPA) and other environmental laws applicable to transportation planning and construction. He has worked on hundreds of NEPA cases and other litigation, including several cases that went to the U.S. Supreme Court.

Mr. Kussy's comprehensive understanding of national transportation law and exemplary service have earned him numerous awards including presidential level service awards. He speaks German fluently.

Representative Work

Federal Highway Administration – Deputy Chief Counsel. Served as senior career attorney and frequently served as acting chief counsel from 1989 to 2008 to an agency that administers the $40 billion Federal Aid Highway Program. Prior FHWA positions included deputy and assistant chief counsel for Right of Way and Environmental Law. Worked on the following projects, among others, while Deputy Chief Counsel:

• Intercounty Connector, Montgomery County, Maryland. Worked with top level State and Federal transportation officials to develop an approach to project implementation strategy, environmental documentation, and administrative record for the project that resulted in environmental approvals and a successful Federal Court decision. This controversial $ 2.2 billion highway project is now under construction.
• Woodrow Wilson Memorial Bridge, Virginia, Maryland, and the District of Columbia. Guided the legal work on all phases of the project and contributed substantially to the project's success. Legal work involved myriad complex environmental issues: a successful settlement with the City of Alexandria, Virginia, litigation culminating in a highly favorable decision in the U.S. Court of Appeals for the D.C. Circuit; difficult funding, oversight, and audit issues; right of way acquisition issues; contracting questions, and labor issues, including litigation before the D.C. Circuit stemming from an Executive Order on project labor agreements. This $2.5 billion project replaced one of the worst bottlenecks both for the Washington, D.C. area and the I-95 corridor as a whole. The new, twin span, 12-lane bridge and associated interchanges are among the most complex highway construction projects in the United States. Both bridge spans are now open to traffic, and the whole project was delivered on time and within budget.
• Central Artery/Third Harbor Tunnel, Boston, Massachusetts ("The Big Dig"). Early legal work on this $15 billion project included overseeing the legal sufficiency review of the environmental documentation and resolving Federal funding issues on environmental mitigation features. Later, issues arose relating to wrap around liability and workman's compensation insurance as well as project labor agreements. Congressional and U.S. DOT concerns about cost overruns led to the enactment of stringent cost control measures and complex financial oversight procedures. These procedures posed many legal issues relating to the adequacy of oversight mechanisms, eligibility of particular costs for Federal reimbursement, and many other unique questions relating to Federal funding. Issues that arose during construction, included recoveries of several hundred million dollars from contractors and material suppliers, especially following the development of unusual tunnel leaks and the collapse of a ceiling panel. The project is now completed and has transformed downtown Boston.
• Affirmative Action Civil Rights Litigation. Worked with other senior lawyers at the US DOT, assisted the Office of the Solicitor General in forming the Government's position in Adarand Constructors v. Peña, 515 U.S. 200 (1995). Following the Supreme Court's 1995 decision, which resulted in the application of strict scrutiny to Federal affirmative action programs, worked to help implement President Clinton's charge to "mend, not end" affirmative action. Served on the US DOT senior policy team that: oversaw successful efforts to reauthorize US DOT's disadvantaged business enterprise (DBE) program in 1998 and 2005; drafted new regulations implementing the Court's decision; oversaw the application of the new rules to State DBE programs; developed and implemented a successful litigation strategy to defend the new US DOT regulations and the DBE program as a whole. This effort resulted in five successful U.S. Court of Appeals decisions, as well as a successful outcome in the U.S. Supreme Court when the Adarand case came before the Court again (the Court decided to deny certiorari (that is that Writ of Certiorari was improvidently granted) after the case was argued).
• SEP-15 Oversight. Oversaw and participated in the negotiation, review, and approval of every SEP-15 application filed with FHWA between the inception of SEP-15 in 2003 and my retirement from Federal service on 2008.
• Alameda Corridor Loan. Oversaw the Federal legal reviews and negotiation of a $400 million loan provided by the US DOT to the Alameda Corridor Transportation Authority in 1997. This loan enabled construction of a project that greatly improved rail access to the Ports of Los Angeles and Long Beach, California. The agreement involved the Ports, the railroads, local governments, Caltrans and US DOT. At the time, the project presented novel funding issues that had to be resolved both with the parties and the US Department of the Treasury. President Clinton personally announced the loan agreement had been reached and that the loan would be made at a White House ceremony. The loan was repaid with interest in 2004, a testament to the success of the project.

George Washington University Law School – Professorial Lecturer. Adjunct faculty, teaching environmental law from 1984 to 2000.

Professional Affiliations

Awards & Honors

The Secretary's Award for Outstanding Public Service, 2008

The General Counsel's Award for Lifetime Legal Achievement, 2008

Distinguished Career Service Award, 2008

The Lester Boykin Award, 2008 (First recipient of a new award designed to recognize particularly creative FHWA attorneys in honor of the first FHWA Chief Counsel)

The Heartland Award, 2007 (Awarded to an FHWA employee who has made major contributions of marked national significance to FHWA programs, in honor of those who died in the Oklahoma City bombing)

Secretary's Gold Award, (twice), 2007 for the Minneapolis I-35 Bridge Response Team, and for the Secretary's Urban Partnership Initiative Team

Secretary's Award for Partnering for Excellence, 2006 for the DOT Congestion Initiative Working Group

SES Presidential Rank Award (twice) Distinguished Executive, 2000, Meritorious Executive, 1995

The Distinguished Lecturer at the Transportation Research Board's 1996 Annual Meeting (first attorney to give this lecture in TRB's history)

Award for Exceptional Contribution to Transportation Law, Federal Bar Association, 1994

Joseph D. Buscher Distinguished Transportation Attorney Award, American Association of State Highway and Transportation Officials, 1991

Secretary's Award for Meritorious Achievement (Silver Medal), 1988

Presentations

"Professional Responsibilities and the American Recovery and Reinvestment Act: Duties and Challenges," Transportation Research Board 48th Annual Workshop on Transportation Law, Denver, CO, July 22, 2009.

Publications

Co-Author, "The American Recovery and Reinvestment Act: Implementing its Highway and Rail Related Provisions," American Bar Association Transportation Committee Quarterly, Spring 2009.

Author, "Surface Transportation and Administrative Law: Growing Up Together in the 20th Century," Transportation Research Record #1527, 1996.

Author, "Book Review: Whose Backyard, Whose Risk: Fear and Fairness in Toxic & Nuclear Waste Siting," 2 The Environmental Lawyer 267-280, 1995.

Author, "First Amendment Issues in State Regulation of Billboards and Safety Rest Areas," Transportation Research Board, Circular #275, 1984.

Author, "Wetland and Floodplain Protection and the Federal-Aid Highway Program," 13 Environmental Law 161-264, 1982.

Author, "Compensation for Billboard and Junkyard Removal under the Highway Beautification Act," The Practical Lawyer, Vol. 27, pages 65-76, July 15, 1981.

Education

Program for Senior Managers in Government, Harvard University, John F. Kennedy School of Government, 1991

L.L.M., George Washington University Law School, 1981
Environmental Law with Highest Honors

J.D., University of Michigan Law School, 1971

B.A., University of Michigan, 1968

Admitted