23 U.S.C. § 330 — Program for eliminating duplication of environmental reviews
submitted 11 years ago by Pub. L. 114-94 to r/title-23-HIGHWAYS · 2,007 words · no verdicts yet
This law creates a pilot program letting up to two states use their own environmental laws instead of federal environmental review for highway projects. States must apply and prove their laws are just as strict as the federal rules. The program ends 12 years after it becomes law.
(a) Establishment. (1) The Secretary* of Transportation must set up a pilot program letting states that have already taken over the Secretary's duties under section 327, and that are approved for this program, do their own environmental reviews and approvals for projects -- using state* law instead of the National Environmental Policy Act (NEPA). (2) The Secretary may pick no more than 2 states. (3) "Alternative environmental review and approval procedures" means the state substituting its own environmental laws or regulations for NEPA, the related parts of section 139, and related rules and executive orders.
(b) Application. To join, a state must apply and provide: (1) a full description of its proposed procedures, including how it involves the public and considers environmental impacts; (2) which federal requirements it wants to replace; (3) which state laws or rules it will use instead; (4) an explanation of why its law is at least as strict as the federal rule; (5) what kinds of projects it plans to use this authority for; (6) proof it has enough money to run the program; (7) proof it asked for, got, and addressed public comments on its application; and (8) any other information the Secretary (or, for part (d)(1)(A), the Secretary working with the Chair of the Council on Environmental Quality) requires.
(c) Review of Application. The Secretary must (1) accept and review public comments; (2) approve or deny the application within 120 days of receiving a complete one; and (3) tell the state whether it was approved or denied, and why.
(d) Approval of Application. (1) The Secretary can approve an application only if (A) the Secretary, agreeing with the Chair and after weighing public comments, decides the state's laws are at least as strict as the federal requirements; (B) the Secretary, after weighing public comments, decides the state has the money and staff to handle the job; (C) the state has signed an agreement with the Secretary under section 327; and (D) the state has signed a separate agreement under this section that (i) is signed by the Governor or the state's top transportation official, (ii) is in whatever form the Secretary requires, (iii) has the state agree to take on the responsibilities, consent to being sued in federal court under subsection (e)(1), certify that its own laws let it do this work and are comparable to the federal Freedom of Information Act (including that courts can review document-release decisions), and agree to keep enough money to do the job, (iv) requires the state to give the Secretary any information needed to check it's doing the job properly, (v) lasts no more than 5 years, and (vi) can be renewed. (2) NEPA does not apply to the Secretary's decision to approve or deny an application.
(e) Judicial Review. (1) Federal district courts have exclusive power over lawsuits against a state for failing to meet this section's requirements or failing to follow its approved procedures. (2)(A) A claim challenging a permit, license, or approval issued by a state under this section is barred unless filed within 150 days after the Secretary publishes a Federal Register notice that the decision is final. (B)(i) The state must tell the Secretary about its final action within 10 days. (ii) The Secretary must publish notice of that action within 30 days of getting the state's notice. (C) This subsection does not create a new right to judicial review, and does not limit anyone's ability to sue over a violation of a permit's terms. (3)(A) A state must consider new information received after the comment period closes if it meets the standard for a supplemental environmental impact statement under federal regulations. (B)(i) If a supplemental statement is needed, the final decision that follows it counts as a separate final action, with its own 150-day challenge deadline starting when the Secretary publishes notice. (ii) The same 10-day state-notification and 30-day publication deadlines apply to that new decision.
(f) Election. A state in this program (and the section 327 program) can choose, at its own discretion, to use NEPA instead of its own state procedures.
(g) Adoption or Incorporation by Reference of Documents. As much as possible under federal law, other federal agencies overseeing a project must accept or reference documents the participating state already produced, instead of requiring separate NEPA paperwork.
(h) Relationship to Locally Administered Projects. (1) At a local government's request, a state with an approved program may use its authority for up to 25 local governments' locally run projects. (2) For those local governments, the state is responsible for making sure environmental review meets NEPA's or the state program's requirements, or both.
(i) Review and Termination. (1) An approved state program must always meet this section's requirements. (2) The Secretary must review each approved program at least every 5 years. (3) During that review, the Secretary must give public notice and let people comment. (4) If the Secretary, with the Chair, decides a state isn't following the rules, the Secretary must notify the state; if the problem isn't fixed within a reasonable time (no more than 90 days), the Secretary must withdraw approval. (5) After each review, the Secretary may extend the state's authority for another 5 years or end it.
(j) Report to Congress. Starting 2 years after this section becomes law, and every year after, the Secretary must report to two congressional committees on the program, including (1) how many states are participating; (2) how many and what kinds of projects each state has used alternative procedures for; (3) whether the program has made project reviews more efficient; and (4) any recommended changes.
(k) Sunset. The program ends 12 years after this section becomes law.
(l) Definitions. (1) "Chair" means the Chair of the Council on Environmental Quality. (2) "Multimodal project" has the meaning given in section 139(a). (3) "Program" means the pilot program created by this section. (4) "Project" means a project needing approval under this title or certain parts of title 49, plus any multimodal project.
The Secretary* shall establish a pilot program to authorize States that have assumed responsibilities of the Secretary under section 327 and are approved to participate in the program under this section to conduct environmental reviews and make approvals for projects under State* environmental laws and regulations instead of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), consistent with the requirements of this section.
The Secretary may select not more than 2 States to participate in the program.
In this section, the term “alternative environmental review and approval procedures” means—
substitution of 1 or more State environmental laws for—
the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.);
any provisions of section 139 establishing procedures for the implementation of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) that are under the authority of the Secretary, as the Secretary, in consultation with the State, considers appropriate; and
related regulations and Executive orders; and
substitution of 1 or more State environmental regulations for—
the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.);
any provisions of section 139 establishing procedures for the implementation of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) that are under the authority of the Secretary, as the Secretary, in consultation with the State, considers appropriate; and
related regulations and Executive orders.
To be eligible to participate in the program, a State shall submit to the Secretary an application containing such information as the Secretary may require, including—
a full and complete description of the proposed alternative environmental review and approval procedures of the State, including—
the procedures the State uses to engage the public and consider alternatives to the proposed action; and
the extent to which the State considers environmental consequences or impacts on resources potentially impacted by the proposed action (such as air, water, or species);
each Federal requirement described in subsection (a)(3) that the State is seeking to substitute;
each State law or regulation that the State intends to substitute for such Federal requirement;
an explanation of the basis for concluding that the State law or regulation is at least as stringent as the Federal requirement described in subsection (a)(3);
a description of the projects or classes of projects for which the State anticipates exercising the authority that may be granted under the program;
verification that the State has the financial resources necessary to carry out the authority that may be granted under the program;
evidence of having sought, received, and addressed comments on the proposed application from the public; and
any such additional information as the Secretary, or, with respect to section (d)(1)(A), the Secretary in consultation with the Chair, may require.
In accordance with subsection (d), the Secretary shall—
review and accept public comments on an application submitted under subsection (b);
approve or disapprove the application not later than 120 days after the date of receipt of an application that the Secretary determines is complete; and
transmit to the State notice of the approval or disapproval, together with a statement of the reasons for the approval or disapproval.
The Secretary shall approve an application submitted under subsection (b) only if—
the Secretary, with the concurrence of the Chair and after considering any public comments received pursuant to subsection (c), determines that the laws and regulations of the State described in the application are at least as stringent as the Federal requirements described in subsection (a)(3);
the Secretary, after considering any public comments received pursuant to subsection (c), determines that the State has the capacity, including financial and personnel, to assume the responsibility;
the State has executed an agreement with the Secretary in accordance with section 327; and
the State has executed an agreement with the Secretary under this section that—
has been executed by the Governor or the top-ranking transportation official in the State who is charged with responsibility for highway* construction*;
is in such form as the Secretary may prescribe;
provides that the State—
agrees to assume the responsibilities, as identified by the Secretary, under this section;
expressly consents, on behalf of the State, to accept the jurisdiction of the Federal courts under subsection (e)(1) for the compliance, discharge, and enforcement of any responsibility under this section;
certifies that State laws (including regulations) are in effect that—
authorize the State to take the actions necessary to carry out the responsibilities being assumed; and
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
agrees to maintain the financial resources necessary to carry out the responsibilities being assumed;
requires the State to provide to the Secretary any information the Secretary reasonably considers necessary to ensure that the State is adequately carrying out the responsibilities assigned to the State;
has a term of not more than 5 years; and
is renewable.
The National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) shall not apply to a decision by the Secretary to approve or disapprove an application submitted under this section.
The United States district courts shall have exclusive jurisdiction over any civil action against a State relating to the failure of the State—
to meet the requirements of this section; or
to follow the alternative environmental review and approval procedures approved pursuant to this section.
Notwithstanding any other provision of law, a claim seeking judicial review of a permit, license, or approval issued by a State under this section shall be barred unless the claim is filed not later than 150 days as set forth in section 139(l) after the date of publication in the Federal Register by the Secretary of a notice that the permit, license, or approval is final pursuant to the law under which the action is taken.
The State shall notify the Secretary of the final action of the State not later than 10 days after the final action is taken.
The Secretary shall publish the notice of final action in the Federal Register not later than 30 days after the date of receipt of the notice under clause (i).
Nothing in this subsection creates a right to judicial review or places any limit on filing a claim that a person has violated the terms of a permit, license, or approval.
A State shall consider new information received after the close of a comment period if the information satisfies the requirements for a supplemental environmental impact statement under section 771.130 of title 23, Code of Federal Regulations (or successor regulations).
The final agency action that follows preparation of a supplemental environmental impact statement, if required, shall be considered a separate final agency action, and the deadline for filing a claim for judicial review of the action shall be 150 days as set forth in section 139(l) after the date of publication in the Federal Register by the Secretary of a notice announcing such action.
The State shall notify the Secretary of the final action of the State not later than 10 days after the final action is taken.
The Secretary shall publish the notice of final action in the Federal Register not later than 30 days after the date of receipt of the notice under subclause (I).
A State participating in the programs under this section and section 327, at the discretion of the State, may elect to apply the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) instead of the alternative environmental review and approval procedures of the State.
To the maximum extent practicable and consistent with Federal law, other Federal agencies with authority over a project subject to this section shall adopt or incorporate by reference documents produced by a participating State under this section to satisfy the requirements of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).
A State with an approved program under this section, at the request of a local government, may exercise authority under that program on behalf of up to 25 local governments for locally administered projects.
For up to 25 local governments selected by a State with an approved program under this section, the State shall be responsible for ensuring that any environmental review, consultation, or other action required under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) or the State program, or both, meets the requirements of such Act or program.
A State program approved under this section shall at all times be in accordance with the requirements of this section.
The Secretary shall review each State program approved under this section not less than once every 5 years.
In conducting the review process under paragraph (2), the Secretary shall provide notice and an opportunity for public comment.
If the Secretary, in consultation with the Chair, determines at any time that a State is not administering a State program approved under this section in accordance with the requirements of this section, the Secretary shall so notify the State, and if appropriate corrective action is not taken within a reasonable time, not to exceed 90 days, the Secretary shall withdraw approval of the State program.
At the conclusion of the review process under paragraph (2), the Secretary may extend for an additional 5-year period or terminate the authority of a State under this section to substitute the laws and regulations of the State for the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).
Not later than 2 years after the date of enactment of this section, and annually thereafter, the Secretary shall submit to the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Environment and Public Works of the Senate a report that describes the administration of the program, including—
the number of States participating in the program;
the number and types of projects for which each State participating in the program has used alternative environmental review and approval procedures;
a description and assessment of whether implementation of the program has resulted in more efficient review of projects; and
any recommendations for modifications to the program.
The program shall terminate 12 years after the date of enactment of this section.
In this section, the following definitions apply:
The term “Chair” means the Chair of the Council on Environmental Quality.
The term “multimodal project” has the meaning given that term in section 139(a).
The term “program” means the pilot program established under this section.
The term “project” means—
a project requiring approval under this title, chapter 53 of subtitle III of title 49, or subtitle V of title 49; and
a multimodal project.
Source credit: (Added Pub. L. 114–94, div. A, title I, § 1309(b), Dec. 4, 2015, 129 Stat. 1392; amended Pub. L. 115–254, div. B, title V, § 578, Oct. 5, 2018, 132 Stat. 3394.)
- 2015Enacted · Pub. L. 114-94 · 129 Stat. 1392
- 2018Amended · Pub. L. 115-254 · 132 Stat. 3394
A history note hasn’t been published yet. The record shows enactment by Pub. L. 114-94 on 2015-12-04.
all 0 arguments · sorted by: best
no arguments yet — make the first case