To amend title 23, United States Code, to modify the surface transportation project delivery pilot program to carry out a demonstration program using State environmental laws, and for other purposes.

Summary: Environmental Review Cooperation Act - Directs the Secretary of Transportation (DOT) to carry out a demonstration program to allow a state or local government to assume the Secretary's responsibilities for environmental review and approval of highway projects under the National Environmental Policy Act of 1969 through implementation of the state's environmental laws instead of federal environmental laws.

Authorizes the Secretary to allow a state or local government to participate in the demonstration program only if: (1) the state's environmental laws provide a substantially equivalent level of environmental protection as applicable federal laws, (2) program participation by the state or local government will not diminish protection of the environment, and (3) the head of the state agency or local government with primary jurisdiction over highway matters enters into a written agreement with the Secretary.

Revises and makes permanent the surface transportation project delivery pilot program.

Prohibits the Secretary from requiring a state, as a condition of participation in the program, to forego project delivery methods otherwise permissible for highway projects.

Authorizes a state to assume highway project responsibilities administered by the Federal Highway Administration (FHWA), but not the responsibilities of any other modal administration within DOT.

Repeals the limitation to Alaska, California, Ohio, Oklahoma, and Texas of state participation in the program. Allows program participation by all states. Prescribes a special rule to permit a state participating in the program on September 30, 2009, to continue in the program and not be required to submit an application.

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Environmental Review Cooperation 
Act''.

SEC. 2. SURFACE TRANSPORTATION PROJECT DELIVERY DEMONSTRATION PROGRAM.

    (a) In General.--Chapter 3 of title 23, United States Code, is 
amended by adding at the end the following:
``Sec. 330. Use of State environmental laws
    ``(a) Demonstration Program.--Subject to the requirements of this 
section, the Secretary shall carry out a demonstration program to 
permit an eligible State or a unit of local government in the State to 
carry out the responsibilities of the Secretary with respect to highway 
projects within the State under the National Environmental Policy Act 
of 1969 (42 U.S.C. 4321 et seq.) through the implementation of the 
environmental laws of such State instead of Federal environmental laws.
    ``(b) Eligible States and Local Governments.--The Secretary may 
permit a State or a unit of local government in the State to 
participate in the demonstration program only if the Secretary 
determines, after reviewing the environmental laws of the State and 
such other materials as the Secretary may require, that--
            ``(1) the environmental laws of the State provide a 
        substantially equivalent level of environmental protection as 
        applicable Federal laws;
            ``(2) participation by the State or a unit of local 
        government in the State in the demonstration program will not 
        diminish protection of the environment; and
            ``(3) the head of the State agency having primary 
        jurisdiction over highway matters or the head of a unit of 
        local government in the State having primary jurisdiction over 
        highway matters in that unit enters into a written agreement 
        with the Secretary described in subsection (d).
    ``(c) Final Determination.--The Secretary shall make the final 
determination with regard to the participation of a State or a unit of 
local government in the State in the demonstration program within 6 
months after the date of enactment of the Environmental Review 
Cooperation Act.
    ``(d) Written Agreement.--A written agreement under this section 
shall--
            ``(1) be executed by the Governor or the top-ranking 
        transportation official in the State who is charged with 
        responsibility for highway construction or the head of a unit 
        of local government in the State having primary jurisdiction 
        over highway matters in that unit;
            ``(2) be in such form as the Secretary may prescribe;
            ``(3) provide that the State or the unit of local 
        government--
                    ``(A) agrees to assume all or part of the 
                responsibilities of the Secretary described in 
                subsection (a);
                    ``(B) expressly consents, on behalf of the State or 
                the unit of local government, to accept the 
                jurisdiction of the Federal courts for the compliance, 
                discharge, and enforcement of any responsibility of the 
                Secretary assumed by the State or the unit of local 
                government;
                    ``(C) certifies that State laws (including 
                regulations) are in effect that--
                            ``(i) authorize the State or the unit of 
                        local government to take the actions necessary 
                        to carry out the responsibilities being 
                        assumed; and
                            ``(ii) are comparable to section 552 of 
                        title 5, including providing that any decision 
                        regarding the public availability of a document 
                        under those State laws is reviewable by a court 
                        of competent jurisdiction; and
                    ``(D) agrees to maintain the financial resources 
                necessary to carry out the responsibilities being 
                assumed.
    ``(e) Audits.--
            ``(1) In general.--To ensure compliance by a State or a 
        unit of local government with any requirements for 
        participating in the program under this section, the Secretary 
        shall conduct--
                    ``(A) semiannual audits during each of the first 2 
                years of participation in the program; and
                    ``(B) annual audits during each subsequent year of 
                participation in the program.
            ``(2) Public availability and comment.--
                    ``(A) In general.--An audit conducted under 
                paragraph (1) shall be provided to the public for 
                comment.
                    ``(B) Response.--Not later than 60 days after the 
                date on which the period for public comment ends, the 
                Secretary shall respond to public comments received 
                under subparagraph (A).
    ``(f) Report to Congress.--
            ``(1) In general.--Not later than 2 years after the date on 
        which the first State is selected for participation in the 
        demonstration program, and annually thereafter, the Secretary 
        shall submit to Congress, and make available to the public, a 
        report on the results of the demonstration program.
            ``(2) Contents.--For each reporting period, the report 
        shall contain, at a minimum, the following:
                    ``(A) A list identifying how many projects have 
                been approved and completed under the demonstration 
                program.
                    ``(B) An assessment of whether delays were reduced 
                and project delivery was enhanced as a result of the 
                demonstration program.
                    ``(C) An assessment of whether there have been any 
                adverse impacts or risks to the environment as a result 
                of the demonstration program.
    ``(g) Termination.--
            ``(1) In general.--Except as provided in paragraph (2), the 
        program shall terminate on the date that is 7 years after the 
        date of enactment of this section.
            ``(2) Termination by secretary.--The Secretary may 
        terminate the participation of any State or unit of local 
        government in the program if--
                    ``(A) the Secretary determines that the State or 
                unit of local government is not adequately carrying out 
                the responsibilities assigned to the State or unit of 
                local government, respectively;
                    ``(B) the Secretary provides to the State or unit 
                of local government--
                            ``(i) notification of the determination of 
                        noncompliance; and
                            ``(ii) a period of at least 30 days during 
                        which to take such corrective action as the 
                        Secretary determines is necessary to comply 
                        with the applicable agreement; and
                    ``(C) the State or unit of local government, after 
                the notification and period provided under subparagraph 
                (B), fails to take satisfactory corrective action, as 
                determined by the Secretary.''.
    (b) Conforming Change.--The analysis for chapter 3 of title 23, 
United States Code, is amended by adding after the item related to 
section 329 the following:

330. Use of State environmental laws.

SEC. 3. SURFACE TRANSPORTATION PROJECT DELIVERY PILOT PROGRAM.

    Section 327 of title 23, United States Code, is amended--
            (1) in the section heading by striking ``pilot'';
            (2) in subsection (a)(1) by striking ``pilot'';
            (3) in subsection (a)(2)--
                    (A) in subparagraph (B) by striking clause (ii) and 
                inserting the following:
                            ``(ii) the Secretary may not assign any 
                        responsibility imposed on the Secretary by 
                        section 134 or 135.''; and
                    (B) by adding at the end the following:
                    ``(F) Preservation of flexibility.--The Secretary 
                shall not require a State, as a condition of 
                participation in this program, to forego project 
                delivery methods that are otherwise permissible for 
                highway projects.
                    ``(G) Highway project.--A highway project under 
                subparagraph (A) includes any project eligible under 
                this title. With respect to such a project, a State may 
                assume the responsibilities administered by the Federal 
                Highway Administration, but the State may not assume 
                the responsibilities of any other modal administration 
                within the Department.'';
            (4) in subsection (b)--
                    (A) by striking paragraph (1) and inserting the 
                following:
            ``(1) Participating states.--
                    ``(A) In general.--All States are eligible to 
                participate in the program.
                    ``(B) Special rule.--Any State participating in the 
                program under this section on September 30, 2009, shall 
                be permitted by the Secretary to continue to 
                participate in the program and such State shall not 
                have to submit an application under paragraph (2) in 
                order to participate in the program.''; and
                    (B) in paragraph (2) by striking ``this section, 
                the Secretary shall promulgate'' and inserting ``the 
                Environmental Review Cooperation Act, the Secretary 
                shall amend, as appropriate,''; and
            (5) by striking subsection (i) and inserting the following:
    ``(i) Termination.--The Secretary may terminate the participation 
of any State in the program if--
            ``(1) the Secretary determines that the State is not 
        adequately carrying out the responsibilities assigned to the 
        State;
            ``(2) the Secretary provides to the State--
                    ``(A) notification of the determination of 
                noncompliance; and
                    ``(B) a period of at least 30 days during which to 
                take such corrective action as the Secretary determines 
                is necessary to comply with the applicable agreement; 
                and
            ``(3) the State, after the notification and period provided 
        under paragraph (2), fails to take satisfactory corrective 
        action, as determined by Secretary.''.