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. ROHR-
ABACHER, 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. 
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
SECTION 1. SHORT TITLE. 
This Act may be cited as the ‘‘Environmental Review 
Cooperation Act’’. 
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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 fol-
lowing: 
‘‘§ 330. Use of State environmental laws 
‘‘(a) DEMONSTRATION PROGRAM.—Subject to the re-
quirements 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 Environ-
mental 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
GOVERN-
MENTS.—The Secretary may permit a State or a unit of 
local government in the State to participate in the dem-
onstration 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 pro-
vide 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 pro-
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gram will not diminish protection of the environ-
ment; and 
‘‘(3) the head of the State agency having pri-
mary 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 Sec-
retary described in subsection (d). 
‘‘(c) FINAL DETERMINATION.—The Secretary shall 
make the final determination with regard to the participa-
tion 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 Coopera-
tion 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 mat-
ters in that unit; 
‘‘(2) be in such form as the Secretary may pre-
scribe; 
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‘‘(3) provide that the State or the unit of local 
government— 
‘‘(A) agrees to assume all or part of the re-
sponsibilities of the Secretary described in sub-
section (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 nec-
essary to carry out the responsibilities 
being assumed; and 
‘‘(ii) are comparable to section 552 of 
title 5, including providing that any deci-
sion regarding the public availability of a 
document under those State laws is review-
able by a court of competent jurisdiction; 
and 
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‘‘(D) agrees to maintain the financial re-
sources necessary to carry out the responsibil-
ities being assumed. 
‘‘(e) AUDITS.— 
‘‘(1) IN GENERAL.—To ensure compliance by a 
State or a unit of local government with any require-
ments 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 
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participation in the demonstration program, and an-
nually thereafter, the Secretary shall submit to Con-
gress, 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 fol-
lowing: 
‘‘(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 envi-
ronment as a result of the demonstration pro-
gram. 
‘‘(g) TERMINATION.— 
‘‘(1) IN GENERAL.—Except as provided in para-
graph (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 Sec-
retary may terminate the participation of any State 
or unit of local government in the program if— 
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‘‘(A) the Secretary determines that the 
State or unit of local government is not ade-
quately carrying out the responsibilities as-
signed 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 dur-
ing 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 cor-
rective action, as determined by the Sec-
retary.’’. 
(b) CONFORMING CHANGE.—The analysis for chap-
ter 3 of title 23, United States Code, is amended by add-
ing 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— 
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(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 other-
wise 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 respon-
sibilities administered by the Federal Highway 
Administration, but the State may not assume 
the responsibilities of any other modal adminis-
tration within the Department.’’; 
(4) in subsection (b)— 
(A) by striking paragraph (1) and insert-
ing the following: 
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‘‘(B) a period of at least 30 days during 
which to take such corrective action as the Sec-
retary 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 satisfac-
tory corrective action, as determined by Secretary.’’. 
Æ 
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