Edward V.A. Kussy

We fondly remember our partner, Ed Kussy, who passed away on July 21, 2023.

With nearly 40 years of experience holding senior positions in federal government, Ed Kussy was one of the nation’s leading experts on federal surface transportation policy and regulations. He used this background to provide unique insight on many of the Firm’s most important matters.

Before joining the Firm, Ed served as deputy chief counsel (top career lawyer) at the Federal Highway Administration in Washington, D.C. There, he helped develop and implement the innovative federal policies that support public-private partnerships (P3s) – such as the U.S. Department of Transportation’s policies on Private Activity Bonds (PABs), the Transportation Infrastructure Finance and Innovation Act (TIFIA) and SEP-15. He also helped draft and set in motion many laws governing the Federal-aid Highway Program, which provides financial assistance for construction, maintenance and operation of the nation’s 4.1 million-mile highway network. Throughout the course of his federal career, Ed worked on virtually every part of the federal aid highway program and aspects of many other federal transportation programs, including issues related to the use of airspace and federal utilities policies. His advice advanced a host of major transportation projects across the United States.

Ed offered vast experience dealing with the National Environmental Policy Act and other environmental laws impacting transportation planning and construction. While at the USDOT, he helped develop environmental regulations and policies governing the Federal-aid Highway Program. He worked on hundreds of NEPA and other cases, including several that went to the U.S. Supreme Court. 

Ed began his career as an environmental lawyer and served for many years as a professorial lecturer in environmental law at George Washington University Law School.

Experience

Arizona Department of Transportation. Part of the legal team representing the Department against an environmental challenge by local groups and a Native American community to the $1.8 billion South Mountain Freeway in Phoenix.  ADOT prevailed on all counts in defense of NEPA and Section 4(f) challenges in Protecting Arizona’s Resources & Children v. FHWA, U.S. Dist. Ariz Case Nos. CV-15-00893; 012121 (D. Ariz. Aug. 19, 2016, Granting ADOT’s Motion for Summary Judgment).  The project is currently under construction, and on December 8, 2017, the Ninth Circuit Court of Appeals unanimously rejected two challenges to the 2016 decision, No.16-16586, No. 16-16605, --- Fed. Appx. ----, 2017 WL 6146939 (9th Cir. Dec. 8, 2017) (memorandum op’n).  Ed also advised ADOT on federal laws and regulations regarding commercial activity at highway rest areas. 

City and County of Honolulu – Honolulu High Capacity Transit Corridor.  Advisor to the legal team on a $5.2 billion, 20-mile elevated rapid-transit line that will connect West Oahu with downtown Honolulu and serve major commercial and tourist destinations.  Nossaman has assisted the City and County with procurement matters involving the planning, financing, design, construction and operation of the Honolulu High Capacity Transit Corridor – the first project of its kind in the state.  Ed advised on federal environmental requirements and helped successfully defend the City and County against a lawsuit contending federal officials failed to consider transit alternatives or properly vet the route’s impact on historic sites.  In a decision of national importance for rail transit and highway projects, the Ninth Circuit Court of Appeals upheld the suit’s dismissal in March 2014.  The project is under construction.  

Interstate JCDecaux – Chicago Digital Sign Network.  Advisor to the world’s largest outdoor advertiser in connection with a major billboard P3 project in Chicago, which required the passage of state and federal legislation to proceed.  In 2013, the City made a deal with a partnership of Paris-based JCDecaux and regional outdoor advertising company Interstate Outdoor to erect new state-of-the-art large-format digital billboards on City-owned land adjacent to Chicago expressways.  The signs will post weather, traffic and missing person alerts; public event promotions and a series of rotating ads.  The project, built at no cost to the City, will earn $700 million in revenue over the next 20 years, generating payments of at least $150 million to the City.  Nossaman is also helping the company pursue similar projects in other large metropolitan areas including Los Angeles and New York City.  

Texas Department of Transportation – P3 Program.  Advisor to the legal team serving as outside counsel to the agency on this groundbreaking program.  Texas’s statewide comprehensive development agreement program represents the largest P3 transportation program in the U.S.  Nossaman is assisting the Department with environmental issues, procurement, contract documents, negotiated concession agreements and innovative financing arrangements (including applications to the federal TIFIA credit assistance program) for this massive program.

American Association of State Highway and Transportation Officials – Federal Transportation Legislation.  Advisor to AASHTO on the impact of transportation legislation, including the expansion of federal credit assistance programs like TIFIA, Private Activity Bonds and a national infrastructure bank.

Treasure Island Community Development – Federal Bridge Program.  Advisor to state and local officials and project developers regarding the federal highway bridge program – advice that led to availability of federal funding for a $100 million ramp project connecting the Treasure Island Development with the Bay Bridge.  A joint venture of Lennar Corporation and Wilson Meany Sullivan, the Treasure Island project includes the 405-acre redevelopment of the former naval station and parts of Yerba Buena Island in the San Francisco Bay between San Francisco and Oakland.

Highway Projects – Disadvantaged Business Enterprise and Buy America Programs.  Advisor to numerous clients on compliance with federal DBE and Buy America issues as they apply to federally funded highway projects, such as DBE and small business provisions in contracts for the Presidio Parkway project in San Francisco.

Project Labor Agreements – Federal Requirements.  Advisor to various states on the form and content of project labor agreements – in particular compliance with federal requirements.

Orange County Transportation Corridor Agencies (TCAs) – Surface Transportation Legislation.  Worked with congressional staff on legislation reauthorizing federal surface transportation programs.

News

Community & Professional

Transportation Research Board of the National Academies: Emeritus Member of the Legal Resources Group, 2017; Member of Technical Activities Council, 2009 – 2012; Chair of Legal Resources Group Executive Committee, 2009 – 2012; Chair of Committees on Environmental Issues in Transportation Law, 1985-1991;  Member of Transit and Intermodal Law; Past Member of Committee on Project 20-6, Legal Problems Arising out of Highway Programs, under National Cooperative Highway Research Program

Federal Bar Association, Past Member and Chair of the Motor Carrier and Surface Transportation committees

Department of Transportation Law Library Advisory Group, Founder and Past Chair

Honors & Recognitions

Selected to the Super Lawyers List for 2014-2016

Secretary's Award for Outstanding Public Service, USDOT, 2008

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

Distinguished Career Service Award, USDOT, 2008

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

Heartland Award, 2007 (given 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, USDOT (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, USDOT, 2006 (for the DOT Congestion Initiative Working Group)

SES Presidential Rank Award U.S. Government (twice) Distinguished Executive, 2000, Meritorious Executive, 1995

Distinguished Lecturer, Annual Meeting of the Transportation Research Board, 1996

Exceptional Contribution to Transportation Law, Federal Bar Association, 1994