I 

112TH CONGRESS 

1ST SESSION H. R. 2389 

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. 

IN THE HOUSE OF REPRESENTATIVES 

JUNE 24, 2011 

Mr. GARY G. MILLER of California (for himself, Mr. DENHAM, Mr. ISSA, Mr. 

CARDOZA, Mr. BILBRAY, Mr. THOMPSON of California, Mr. ROHRABACHER, Mr. CALVERT, and Mr. MCCARTHY of California) introduced 

the following bill; which was referred to the Committee on Transportation 

and Infrastructure 

A BILL 

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. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Environmental Review 

5 Cooperation Act’’. 


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1 SEC. 2. SURFACE TRANSPORTATION PROJECT DELIVERY 

2 DEMONSTRATION PROGRAM. 

3 (a) IN GENERAL.—Chapter 3 of title 23, United 

4 States Code, is amended by adding at the end the fol5 lowing: 

6 ‘‘§ 330. Use of State environmental laws 

7 ‘‘(a) DEMONSTRATION PROGRAM.—Subject to the re8 quirements of this section, the Secretary shall carry out 

9 a demonstration program to permit an eligible State or 

10 a unit of local government in the State to carry out the 

11 responsibilities of the Secretary with respect to highway 

12 projects within the State under the National Environ13 mental Policy Act of 1969 (42 U.S.C. 4321 et seq.) 

14 through the implementation of the environmental laws of 

15 such State instead of Federal environmental laws. 

16 ‘‘(b) ELIGIBLE STATES AND LOCAL GOVERN17 MENTS.—The Secretary may permit a State or a unit of 

18 local government in the State to participate in the dem19 onstration program only if the Secretary determines, after 

20 reviewing the environmental laws of the State and such 

21 other materials as the Secretary may require, that— 

22 ‘‘(1) the environmental laws of the State pro23 vide a substantially equivalent level of environmental 

24 protection as applicable Federal laws; 

25 ‘‘(2) participation by the State or a unit of local 

26 government in the State in the demonstration proVerDate Mar 15 2010 06:44 Jul 01, 2011 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H2389.IH H2389

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1 gram will not diminish protection of the environ2 ment; and 

3 ‘‘(3) the head of the State agency having pri4 mary jurisdiction over highway matters or the head 

5 of a unit of local government in the State having 

6 primary jurisdiction over highway matters in that 

7 unit enters into a written agreement with the Sec8 retary described in subsection (d). 

9 ‘‘(c) FINAL DETERMINATION.—The Secretary shall 

10 make the final determination with regard to the participa11 tion of a State or a unit of local government in the State 

12 in the demonstration program within 6 months after the 

13 date of enactment of the Environmental Review Coopera14 tion Act. 

15 ‘‘(d) WRITTEN AGREEMENT.—A written agreement 

16 under this section shall— 

17 ‘‘(1) be executed by the Governor or the top18 ranking transportation official in the State who is 

19 charged with responsibility for highway construction 

20 or the head of a unit of local government in the 

21 State having primary jurisdiction over highway mat22 ters in that unit; 

23 ‘‘(2) be in such form as the Secretary may pre24 scribe; 


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1 ‘‘(3) provide that the State or the unit of local 

2 government— 

3 ‘‘(A) agrees to assume all or part of the re4 sponsibilities of the Secretary described in sub5 section (a); 

6 ‘‘(B) expressly consents, on behalf of the 

7 State or the unit of local government, to accept 

8 the jurisdiction of the Federal courts for the 

9 compliance, discharge, and enforcement of any 

10 responsibility of the Secretary assumed by the 

11 State or the unit of local government; 

12 ‘‘(C) certifies that State laws (including 

13 regulations) are in effect that— 

14 ‘‘(i) authorize the State or the unit of 

15 local government to take the actions nec16 essary to carry out the responsibilities 

17 being assumed; and 

18 ‘‘(ii) are comparable to section 552 of 

19 title 5, including providing that any deci20 sion regarding the public availability of a 

21 document under those State laws is review22 able by a court of competent jurisdiction; 

23 and 


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1 ‘‘(D) agrees to maintain the financial re2 sources necessary to carry out the responsibil3 ities being assumed. 

4 ‘‘(e) AUDITS.— 

5 ‘‘(1) IN GENERAL.—To ensure compliance by a 

6 State or a unit of local government with any require7 ments for participating in the program under this 

8 section, the Secretary shall conduct— 

9 ‘‘(A) semiannual audits during each of the 

10 first 2 years of participation in the program; 

11 and 

12 ‘‘(B) annual audits during each subsequent 

13 year of participation in the program. 

14 ‘‘(2) PUBLIC AVAILABILITY AND COMMENT.— 

15 ‘‘(A) IN GENERAL.—An audit conducted 

16 under paragraph (1) shall be provided to the 

17 public for comment. 

18 ‘‘(B) RESPONSE.—Not later than 60 days 

19 after the date on which the period for public 

20 comment ends, the Secretary shall respond to 

21 public comments received under subparagraph 

22 (A). 

23 ‘‘(f) REPORT TO CONGRESS.— 

24 ‘‘(1) IN GENERAL.—Not later than 2 years 

25 after the date on which the first State is selected for 


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1 participation in the demonstration program, and an2 nually thereafter, the Secretary shall submit to Con3 gress, and make available to the public, a report on 

4 the results of the demonstration program. 

5 ‘‘(2) CONTENTS.—For each reporting period, 

6 the report shall contain, at a minimum, the fol7 lowing: 

8 ‘‘(A) A list identifying how many projects 

9 have been approved and completed under the 

10 demonstration program. 

11 ‘‘(B) An assessment of whether delays 

12 were reduced and project delivery was enhanced 

13 as a result of the demonstration program. 

14 ‘‘(C) An assessment of whether there have 

15 been any adverse impacts or risks to the envi16 ronment as a result of the demonstration pro17 gram. 

18 ‘‘(g) TERMINATION.— 

19 ‘‘(1) IN GENERAL.—Except as provided in para20 graph (2), the program shall terminate on the date 

21 that is 7 years after the date of enactment of this 

22 section. 

23 ‘‘(2) TERMINATION BY SECRETARY.—The Sec24 retary may terminate the participation of any State 

25 or unit of local government in the program if— 


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1 ‘‘(A) the Secretary determines that the 

2 State or unit of local government is not ade3 quately carrying out the responsibilities as4 signed to the State or unit of local government, 

5 respectively; 

6 ‘‘(B) the Secretary provides to the State or 

7 unit of local government— 

8 ‘‘(i) notification of the determination 

9 of noncompliance; and 

10 ‘‘(ii) a period of at least 30 days dur11 ing which to take such corrective action as 

12 the Secretary determines is necessary to 

13 comply with the applicable agreement; and 

14 ‘‘(C) the State or unit of local government, 

15 after the notification and period provided under 

16 subparagraph (B), fails to take satisfactory cor17 rective action, as determined by the Sec18 retary.’’. 

19 (b) CONFORMING CHANGE.—The analysis for chap20 ter 3 of title 23, United States Code, is amended by add21 ing after the item related to section 329 the following: 

330. Use of State environmental laws. 

22 SEC. 3. SURFACE TRANSPORTATION PROJECT DELIVERY 

23 PILOT PROGRAM. 

24 Section 327 of title 23, United States Code, is 

25 amended— 


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1 (1) in the section heading by striking ‘‘pilot’’; 

2 (2) in subsection (a)(1) by striking ‘‘pilot’’; 

3 (3) in subsection (a)(2)— 

4 (A) in subparagraph (B) by striking clause 

5 (ii) and inserting the following: 

6 ‘‘(ii) the Secretary may not assign any 

7 responsibility imposed on the Secretary by 

8 section 134 or 135.’’; and 

9 (B) by adding at the end the following: 

10 ‘‘(F) PRESERVATION OF FLEXIBILITY.— 

11 The Secretary shall not require a State, as a 

12 condition of participation in this program, to 

13 forego project delivery methods that are other14 wise permissible for highway projects. 

15 ‘‘(G) HIGHWAY PROJECT.—A highway 

16 project under subparagraph (A) includes any 

17 project eligible under this title. With respect to 

18 such a project, a State may assume the respon19 sibilities administered by the Federal Highway 

20 Administration, but the State may not assume 

21 the responsibilities of any other modal adminis22 tration within the Department.’’; 

23 (4) in subsection (b)— 

24 (A) by striking paragraph (1) and insert25 ing the following: 


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1 ‘‘(1) PARTICIPATING STATES.— 

2 ‘‘(A) IN GENERAL.—All States are eligible 

3 to participate in the program. 

4 ‘‘(B) SPECIAL RULE.—Any State partici5 pating in the program under this section on 

6 September 30, 2009, shall be permitted by the 

7 Secretary to continue to participate in the pro8 gram and such State shall not have to submit 

9 an application under paragraph (2) in order to 

10 participate in the program.’’; and 

11 (B) in paragraph (2) by striking ‘‘this sec12 tion, the Secretary shall promulgate’’ and in13 serting ‘‘the Environmental Review Cooperation 

14 Act, the Secretary shall amend, as appro15 priate,’’; and 

16 (5) by striking subsection (i) and inserting the 

17 following: 

18 ‘‘(i) TERMINATION.—The Secretary may terminate 

19 the participation of any State in the program if— 

20 ‘‘(1) the Secretary determines that the State is 

21 not adequately carrying out the responsibilities as22 signed to the State; 

23 ‘‘(2) the Secretary provides to the State— 

24 ‘‘(A) notification of the determination of 

25 noncompliance; and 


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1 ‘‘(B) a period of at least 30 days during 

2 which to take such corrective action as the Sec3 retary determines is necessary to comply with 

4 the applicable agreement; and 

5 ‘‘(3) the State, after the notification and period 

6 provided under paragraph (2), fails to take satisfac7 tory corrective action, as determined by Secretary.’’. 

Æ 


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