Order Code RL32454
CRS Report for Congress
Received through the CRS Web
Environmental Provisions in Surface Transportation
Reauthorization Legislation Proposed During the
108th Congress
Updated December 8, 2004
Linda G. Luther
Environmental Policy Analyst
Resources, Science, and Industry Division
Congressional Research Service ˜ The Library of Congress
Environmental Provisions in
Surface Transportation Reauthorization Legislation
Proposed During the 108th Congress
Summary
During the 108th Congress, both the House and Senate passed legislation to
reauthorize federal highway, highway safety, and transit programs (H.R. 3550 and
S. 1072). During the reauthorization process, certain environmental issues garnered
significant attention from both Members of Congress and interested stakeholders
(e.g., state transportation agencies, transportation construction organizations, and
environmental groups). This attention was due to both the impact that surface
transportation projects can have on the environment (and, possibly, the costs
associated with addressing those impacts) and the impact that compliance with
environmental requirements can have on project delivery.
Conferees failed to reach an agreement on final reauthorization legislation
before adjournment of the 108th Congress. It is anticipated that the environmental
issues of concern to the 108th Congress will again be addressed by the 109th Congress
when new reauthorization legislation is reintroduced in early 2005. Generally,
environmental provisions in previously passed legislation proposed to do one of the
following: authorize funding to eliminate, control, mitigate, or minimize regulated
environmental impacts associated with surface transportation programs or projects;
or specify procedures required to be undertaken to comply with certain environmental
requirements. In particular, both bills included provisions that would have changed
the procedures the Department of Transportation (DOT) would be required to follow
to comply with the Clean Air Act (42 U.S.C. § 7401 et seq.) and the National
Environmental Policy Act (NEPA, 42 U.S.C. § 4321 et seq.). Both the House and
Senate bills included provisions that would have either specified procedures or
authorized funding to facilitate compliance with one or both of these laws.
Legislation authorizing surface transportation programs for FY1998-FY2003,
the Transportation Equity Act for the 21st Century (TEA-21, P.L. 105-178), expired
on September 30, 2003. In accordance with a series of extension bills, all existing
surface transportation programs continue to operate according to provisions of TEA-
21 while Congress considers reauthorization proposals. The most recent extension
(H.R. 5183) extended funding for surface transportation programs through May 31,
2005. This report will not be updated.
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Issues Regarding the Clean Air Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Conformity with Transportation Planning . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
The CMAQ Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Legislative Proposals Regarding Air Issues . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Proposed Changes to Conformity Demonstration Requirements . . . . . 6
CMAQ Funding Authorization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Use of HOV Lanes for Hybrid Vehicles . . . . . . . . . . . . . . . . . . . . . . . . 9
Clean Fuels Formula Grant Program . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Issues Regarding Environmental Reviews . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Legislative Proposals Regarding Environmental Reviews . . . . . . . . . . . . . 11
Streamlining Environmental Reviews . . . . . . . . . . . . . . . . . . . . . . . . . 11
Revisions to “Section 4(f)” Requirements . . . . . . . . . . . . . . . . . . . . . . 13
Additional Environmental Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Expansion of Environmental Projects Eligible for Funding . . . . . . . . . . . . 14
Funding for Surface Transportation Research Projects . . . . . . . . . . . . . . . . 15
Advanced Vehicle Technologies Research . . . . . . . . . . . . . . . . . . . . . 15
Surface Transportation Environment and Planning
Cooperative Research Program . . . . . . . . . . . . . . . . . . . . . . . . . . 15
List of Tables
Table 1. Legislative Provisions Regarding Conformity Proposed in S. 1072
and H.R. 3550 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Environmental Provisions in Surface
Transportation Reauthorization Legislation
Proposed During the 108th Congress
Introduction
This report discusses significant legislative provisions regarding environmental
issues in bills, passed by both the House and the Senate during the 108th Congress,
that would have reauthorized surface transportation programs for FY2004-FY2009.
These programs involve federal highway, highway safety, and transit programs
undertaken by the U.S. Department of Transportation’s (DOT’s) Federal Highway
Administration (FHWA) and Federal Transit Administration (FTA). The Senate bill
(S. 1072), the Safe, Accountable, Flexible, and Efficient Transportation Equity Act
of 2003 (SAFETEA), passed on February 12, 2004. The House passed its bill (H.R.
3550), the Transportation Equity Act: A Legacy for Users (TEA-LU), on April 2,
2004. Neither bill was enacted before the 108th Congress adjourned. However, it is
anticipated that the environmental issues of concern to Members of the 108th
Congress will again be addressed in reauthorization legislation that will be proposed
during the 109th Congress.
During the reauthorization process, certain environmental issues garnered
significant attention from both Members of Congress and interested stakeholders
(e.g., state transportation agencies, transportation construction organizations, and
environmental groups). This attention was due to both the impact that surface
transportation projects can have on the environment and the impact that compliance
with environmental requirements can have on project delivery.
Both the House and Senate bills included many provisions that relate to the
environment. Generally, the provisions would have done one of the following:
authorized funding to eliminate, control, mitigate, or minimize regulated
environmental impacts associated with a surface transportation program or project;
or specified procedures required to be undertaken to comply with certain
environmental requirements. In particular, both bills included provisions that would
have changed the procedures DOT would be required to follow to comply with the
Clean Air Act and NEPA.
Authorization legislation for FY1998-FY2003, the Transportation Equity Act
for the 21st Century (TEA-21, P.L. 105-178), expired on September 30, 2003. In
accordance with a series of extension bills, all existing surface transportation
programs continue to operate according to provisions of TEA-21 while Congress
considers reauthorization proposals. The most recent extension, the Surface
Transportation Extension Act of 2004, Part V (H.R. 5183), extended funding for
surface transportation programs through May 31, 2005. It is likely that any
CRS-2
reauthorization legislation proposed in the 109th Congress will attempt to address the
same environmental issues.
This report focuses primarily on provisions of H.R. 3550 and S. 1072
concerning environmental requirements that may affect federal funding or surface
transportation project delivery. Specifically, this report addresses proposed legislative
provisions related to compliance with the Clean Air Act and NEPA. Also included
is an overview of selected environmental provisions and issues that have gained
attention from environmental and transportation stakeholders.
Issues Regarding the Clean Air Act
One of the more obvious environmental impacts related to transportation is its
generation of air pollution, in particular “smog” and “soot.” Smog (ground-level
ozone) is not directly emitted from vehicles, but is formed by the reaction of nitrogen
oxides (NOx) and volatile organic compounds (VOCs), both of which are emitted
from vehicles in the presence of sunlight. Soot (particulate matter or PM) can be
generated from a variety of sources including the combustion of petroleum. If the
concentrations of soot and smog in the air, in addition to other pollutants, exceed
certain levels, they can have adverse effects on human health and the environment.
The Clean Air Act directs the Environmental Protection Agency (EPA) to
regulate emissions of air pollutants. Of relevance to transportation is EPA’s authority
to establish emission standards, based on certain health and environmental criteria,
for ozone, carbon monoxide (CO), NOx, and PM.1 The National Ambient Air
Quality Standards (NAAQS), subsequently established by EPA, specify allowable
concentrations and exposure limits for each “criteria pollutant.” A geographic area
that meets or exceeds the standard is considered to be in “attainment” for a particular
NAAQS; areas that do not meet a standard are in “nonattainment.”2 A “maintenance”
area is one that was previously in nonattainment, but is currently attaining the
NAAQS subject to a maintenance plan.3
The NAAQS for particulates, CO, NOx, and short-term (one-hour)
concentrations of ozone have been in effect since the 1970s. However, a more
1 Regulated particulates are either “coarse” (between 2.5 and 10 micrometers in diameter,
known as PM ) or “fine” (less than 2.5 micrometers, known as PM ). PM from
10
2.5
10
transportation sources may come from brake and tire wear, pavement wear, and other
vehicle degenerative processes. PM are emitted from combustion sources, such as diesel
2.5
engines. Fine particulates penetrate deeper into the lungs and remain lodged there, rather
than being exhaled, causing negative impacts on health. Also included on the list of criteria
pollutants are lead and sulfur dioxide. Transportation-related sources are not significant
sources of either of these pollutants.
2 For information on areas currently designated as in nonattainment, see EPA’s “Green
Book Nonattainment Areas for Criteria Pollutants,” available at [http://www.epa.gov/oar/
oaqps/greenbk/index.html].
3 For a more extended discussion of issues regarding NAAQS, see CRS Report RL30853,
Clean Air Act: A Summary of the Act and Its Major Requirements.
CRS-3
stringent standard for ozone (an 8-hour concentration) and new standards for fine
particulates (PM ) go into effect this year. In April 2004, part or all of 474 counties
2.5
were designated as in nonattainment for the new ozone standard. In June 2004, EPA
announced that part or all of 244 counties were in nonattainment for PM . This is
2.5
a preliminary determination. EPA intends to make its final determination by
December 31, 2004.4
The Clean Air Act requires states to develop a State Implementation Plan (SIP)
to demonstrate how they will implement, maintain, and enforce the NAAQS.5 The
SIP must include enforceable emission limitations and other control measures, as
well as schedules and timetables for compliance with NAAQS, if applicable.
Compliance deadlines vary, depending on the severity of the pollution, but generally
a nonattainment area must demonstrate that it is making annual emission reductions
sufficient to reach attainment by the applicable deadline. If necessary, the SIP must
also include a “motor vehicle emissions budget,” which establishes a goal the state
must meet with regard to emissions from mobile sources such as cars, trucks, and
buses. States submit initial SIPs and subsequent revisions to EPA for approval.
The attainment of NAAQS and the development of SIPs are relevant to surface
transportation issues for a variety of reasons. For example, transportation agencies
must consider SIP goals in developing long- and short-term transportation plans.
Also, whether or not federal funds will be made available for a surface transportation
project, or possibly the level of those funds, may depend upon the degree of
nonattainment in a given area.6
Conformity with Transportation Planning
State and metropolitan transportation planners are required under the Clean Air
Act to ensure that long-range transportation plans and short-range Transportation
Improvement Programs (TIPs) are in conformity with emission budgets established
in a SIP. Conformity is a way to ensure that federal funding and approval are given
only to transportation projects that are consistent with a state’s air quality goals.7
Specifically, Section 176(c) of the Clean Air Act requires that planned transportation
projects will not:
! Cause new air quality violations;
! Worsen existing NAAQS violations; or
! Delay attainment of relevant NAAQS.
4 For more information, see CRS Report RL32345, Implementation of EPA’s 8-Hour Ozone
Standard; and CRS Report RL32431, Particulate Matter (PM2.5): National Ambient Air
Quality Standards (NAAQS) Implementation.
5 42 U.S.C. § 7410.
6 Such areas are classified according to the extent to which pollution levels exceed the
standards; designations include marginal, moderate, serious, severe, and extreme.
7 For more information, see guidance from FHWA: Transportation Conformity: A Basic
Guide for State and Local Officials, June 19, 2000, available online at [http://www.
fhwa.dot.gov/environment/conformity/con_bas.htm].
CRS-4
Transportation plans look at a 20-year planning horizon and specify the long-
term goals for a metropolitan area’s transportation system. Before a new
transportation plan can be approved or a new project can receive federal funding, a
regional emissions analysis must demonstrate that the emissions projected in the plan
conform to the emissions budget established by the SIP. A new conformity
demonstration must be made for a transportation plan at least every three years.
A TIP identifies major highway and transit projects to be funded in the short
term (within the next three years) either in a metropolitan area (if that area is a
nonattainment or maintenance area) or on a statewide basis. Metropolitan TIPs must
be updated at least every two years, statewide TIPS at least every three years. TIPs
may also need to be updated when a new project is added. In practice, many large
urban areas obtain a new conformity determination for their TIPs on an annual basis.
Highway and transit projects cannot receive federal funds unless they are part of a
conforming TIP.8
While conformity has been required for more than a decade, its impact is
expected to grow in the next few years as a result of several factors, including the
new NAAQS for ozone and fine particulates; and the increase in emissions from
sport utility vehicles (SUVs) and other “light trucks.”9 These and other factors could
contribute to numerous metropolitan areas facing a temporary suspension of highway
and transit funds unless they impose sharp reductions in vehicle, industrial, or other
emissions. In a recent survey, the General Accounting Office (GAO) found that, over
the past six years, only five metropolitan areas have had to change transportation
plans in order to resolve a conformity lapse; but about one-third of local
transportation planners surveyed expected to have difficulty demonstrating
conformity in the future.10
The CMAQ Program
In the year following the Clean Air Act Amendments of 1990, the Intermodal
Surface Transportation Efficiency Act of 1991 (ISTEA)11 directed the Secretary of
DOT to establish and implement a Congestion Mitigation and Air Quality
Improvement (CMAQ) program. ISTEA authorized a total of $6.0 billion in funding
for surface transportation and other related projects that contribute to air quality
8 For a more extended discussion of the issues regarding conformity, see CRS Report
RL32106, Transportation Conformity Under the Clean Air Act: In Need of Reform?
9 SUVs, minivans, and pickup trucks, vehicles classified as “light trucks,” are regulated
less stringently than passenger cars. Their potential to impact air quality standards is tied
to the fact that sales of such vehicles represent a significant proportion of new vehicle sales
and that they potentially release greater levels of criteria pollutants than other passenger
cars. For more information, see CRS Report RS20298, Sport Utility Vehicles, Mini-Vans,
and Light Trucks: An Overview of Fuel Economy and Emissions Standards.
10 See U.S. GAO, Environmental Protection: Federal Planning Requirements for
Transportation and Air Quality Protection Could Potentially Be More Efficient and Better
Linked, GAO-03-581, April 2003.
11 ISTEA was the surface transportation authorization legislation for FY1991-FY1997.
CRS-5
improvements and congestion mitigation. Under TEA-21, a total of $8.1 billion was
authorized for the program for FY1998-FY2003. DOT apportions CMAQ funds
according to weighting factors based on the severity of air pollution (i.e., the degree
on nonattainment for a given criteria pollutant) and the population in that area.
CMAQ funds are available to a wide range of government and nonprofit
organizations, as well as private entities contributing to public/private partnerships.
Decisions regarding which projects or programs to fund are generally made through
the appropriate metropolitan and/or statewide transportation planning organizations,
and involve the state or local air quality agency. Also, FHWA or FTA field offices
are required to coordinate the project selection process with EPA.
Projects and programs eligible for CMAQ funds must come from a conforming
transportation plan and TIP. According to guidance from DOT, such projects must
also be expected to result in “tangible reductions” in carbon monoxide, ozone
precursor emissions, or PM .12 CMAQ funds cannot be used for projects that will
10
result in new highway capacity. Specific types of projects eligible for CMAQ funds
include, but are not limited to:
! Transportation control measures;
! Inspection and maintenance programs for auto emission controls;
! Extreme low-temperature cold start programs;
! The purchase of publicly owned, alternative fuel vehicles;
! Traffic flow improvements;
! Transit and public transportation programs;
! Pedestrian and bicycle facilities and programs;
! Travel demand management strategies;
! Outreach and rideshare programs; and
! Fare/fee subsidy programs.13
According to FHWA, the most effective CMAQ-funded projects tend to be large
in scope and to directly affect vehicle emissions, such as inspection and maintenance
programs.
Legislative Proposals Regarding Air Issues
As provisions in the transportation reauthorization legislation were debated,
several air quality-related issues were addressed by both Members of Congress and
interested stakeholders. This section discusses and compares general categories of
provisions in the House or Senate bills that related, either directly or indirectly, to
attainment of the NAAQS.
12 DOT provides guidance to the FHWA and FTA regarding CMAQ program
implementation. For the most recent program eligibility criteria, see “Guidance on the
Congestion Mitigation and Air Quality Improvement (CMAQ) Program Under the
Transportation Equity Act of the 21st Century (TEA-21),” issued April 1999, available
online at [http://www.fhwa.dot.gov/environment/cmaq99gm.htm].
13 Ibid.
CRS-6
Proposed Changes to Conformity Demonstration Requirements.
Both the House and Senate bills proposed to amend to Section 176 of the Clean Air
Act regarding how and when conformity demonstrations are made. Two issues of
particular concern to some Members of Congress have been (1) the differences
between the SIP, TIP, and long-range transportation planning cycles; and (2) the
absence of exemptions for certain types of projects, including those that could
improve air quality. A summary of previous legislative provisions regarding
conformity is provided in Table 1.
Table 1. Legislative Provisions Regarding Conformity
Proposed in S. 1072 and H.R. 3550
S. 1072
H.R. 3550
Proposal
as Proposed by the Senate in the
as Proposed by the House
108th Congress
in the 108th Congress
Change in
Reduces from 20 years the current
Continues the requirement
conformity
planning horizon over which
that conformity be
horizon for
conformity must be demonstrated.
demonstrated through the last
long-term
The conformity horizons for
year of the transportation
transportation
transportation plans would extend
plan except in areas where
plans
for the longest of: the first 10 years
the metropolitan planning
of the plan; the latest year in the
organization (MPO) and air
SIP’s motor vehicle emissions
pollution control agency
budget; or the year after completion
agree to reduce the horizon.
of a regionally significant project.
In such cases, the conformity
[§1615(a)]
finding may be based on the
latest of: the 10th year of a
plan; the attainment date of
the SIP; or the year after the
completion date of a
regionally significant project,
if approval is required before
subsequent conformity
determination. [§1824(c)]
Change in
Requires new conformity
Similar to S. 1072.
triggers for
determinations within two years of
[§1824(a)]
conformity
EPA’s adequacy finding or
determinations
approval of a new motor vehicle
emissions budget. [§1615(b)]
Change in
Currently, conformity
Similar to S. 1072.
frequency of
determinations for metropolitan
[§1824(b)]
conformity
transportation plans, metropolitan
determinations
TIPs, and statewide TIPs must be
for long-range
completed every three years, two
plans and TIPs
years, and three years, respectively.
S. 1072 would require each of these
planning documents to be updated
every four years. The minimum
frequency within which
transportation conformity must be
CRS-7
S. 1072
H.R. 3550
Proposal
as Proposed by the Senate in the
as Proposed by the House
108th Congress
in the 108th Congress
demonstrated would be every four
years. Conformity determinations
must be made if triggered by SIP
actions or may be made if an MPO
chooses to update the plan or TIP
more frequently. [§1615(b)]
Change in
Redefines a “transportation
No comparable provision.
definition of a
project,” for which a conformity
“transportation
determination would be required
project”
under the Clean Air Act, to include
only regionally significant projects
or a project that makes a significant
revision to an existing project.
[§1615(b)]
Transition to
Allows areas that have not been in
No comparable provision.
new air quality
nonattainment before, and not been
standards for
required to demonstrate
ozone and
transportation conformity before, to
PM
use an emissions budget in a SIP
2.5
for the prior standard for the same
pollutant, if one is available.
[§1616]
Waiver of
Allows transportation control
Similar to S. 1072. [§6001]
conformity
measures to be substituted or added
determination
to a SIP without a new conformity
determination, if the substitute
measures achieve equivalent or
greater emissions reductions.
[§1617]
Grace period
No comparable provision.
Allows 12-month grace
for conformity
period after a conformity
lapse
lapse. [§1824(e)]
Source: Table prepared by the Congressional Research Service (CRS) based on an analysis of
provisions of S. 1072 and H.R. 3550.
CMAQ Funding Authorization. Both the House and Senate bills would
have retained the basic structure of the CMAQ program specified under TEA-21 and
increased its funding overall. The Senate bill would have authorized a total of $13.4
billion, and the House a total of $9.4 billion, over the authorization period (compared
to $8.1 billion under TEA-21 for FY1998-FY2003).
Provisions in both bills would have expanded eligibility for projects funded
under the CMAQ program. Each bill specified funding eligibility in one of two
ways. First, 23 U.S.C. 149(b) would have been amended by adding new classes of
projects to the CMAQ program. Second, clarification regarding project eligibility
would have been provided for projects that may already be eligible for CMAQ funds,
CRS-8
but for which there has been some confusion among the regulated community.
Following is a summary of proposed projects in both groups:
! Transportation Systems Management and Operations — Both the
House and Senate bills would have expanded the scope of CMAQ
funding available for transportation systems management and
operations. The House bill included a list of eligible activities, such
as arterial, freeway, work zone, and emergency management;
electronic toll collection; automated enforcement; traffic operations
measures to improve capacity; and traffic signal coordination. [S.
1072 §1701; H.R. 3550 §1202]
! Advanced Truck Stop Electrification Systems — The House bill
would have allowed CMAQ funds to be used for systems that could
help reduce emissions from heavy-duty transport vehicles that are
frequently left idling overnight or for extended periods. Specifically,
funds could have been made available for advanced truck stop
electrification systems that would provide electrical power for
heating, air conditioning, electronic, and communications equipment
onboard the vehicle. No similar provision was included in the Senate
bill. However, confusion regarding current eligibility for funding
such projects was discussed in the Senate’s SAFETEA Report of the
Committee on Environment and Public Works Report for S. 1072.
In the report, the Committee stated that such systems qualify for
CMAQ funding under current law, and directed DOT and EPA to
issue guidance to all appropriate federal, state, and local agencies
regarding this issue. [S. 1072, S.Rept. 108-222, discussion of §1612;
H.R. 3550 §1828]
! Bicycle Transportation and Pedestrian Walkways — The Senate bill
would have allowed the use of Surface Transportation Program
(STP) and CMAQ funds for non-construction pedestrian and bicycle
safety projects. The bill would have reauthorized $500,000 in annual
funding for a national, nonprofit pedestrian and bicycle safety
clearinghouse. [S. 1072 §1607]
! Purchase of Alternative Fuels — The Senate bill would have made
eligible for CMAQ funding projects or programs for the purchase of
alternative fuel or biodiesel. [S. 1072 §1612(a)]
! Emergency Communication Equipment — The Senate bill would
have made eligible for CMAQ funding projects or programs
involving the purchase of “integrated, interoperable emergency
communications equipment.” [S. 1072 §1612(a)]
The Senate bill also proposed to change the way the CMAQ program would be
implemented through provisions that would:
! Expand CMAQ eligibility to include areas in nonattainment for the
new PM and 8-hour ozone standards. [§1611]
2.5
! Clarify that CMAQ-type projects are eligible for CMAQ funds in
states with no nonattainment or maintenance areas. [§1612(b)]
! Require states to ensure that subrecipients of CMAQ funds have
emission reduction strategies for their fleets used in construction
CRS-9
projects located in nonattainment or maintenance areas when the
projects are funded with highway funds. [§1612(c)]
! Direct the Secretary of DOT to encourage states and MPOs to
consult with state and local air quality agencies in nonattainment and
maintenance areas on estimated emission reductions from proposed
CMAQ programs and projects. [§1613]
! Direct the Secretary of DOT, in consultation with EPA, to evaluate
and assess a representative sample of CMAQ projects to determine
their impacts on air quality and congestion levels and to ensure the
effective implementation of the program. No direct funding is
provided for the evaluation. [§1614]
Unique to the House bill was a provision that would establish a motor vehicle
congestion relief program (§1201) to be funded under existing federal highway
programs, including CMAQ.14 The program would have funded state projects that
focus on relieving motor vehicle traffic congestion in urbanized areas with
populations greater than 200,000. Congestion relief activities for which funding
could be authorized included:
! The construction of additional lanes, improved interchanges, or
improved access to major terminals, or the construction of parallel
roads or truck-only lanes;
! Improvements to systemwide reliability through activities such as
incident management programs, traffic monitoring and surveillance,
and traveler information initiatives; and
! Activities that could maximize the use of existing lanes through such
means as reversible lanes, coordination of traffic signals, or lane
management strategies.
Use of HOV Lanes for Hybrid Vehicles. Because of their energy and
environmental benefits, some states have extended to drivers of hybrid vehicles an
exception from high occupancy vehicle (HOV) lane requirements. Under TEA-21,
states were given the authority to grant HOV exemptions to “Inherently Low
Emission Vehicles” (ILEVs). The ILEV standard requires that a vehicle have no
evaporative emissions, a standard that is not met by any current hybrid. However,
because of the reduced emissions and improved fuel economy of hybrid vehicles,
there is congressional interest in explicitly granting states the right to exempt them
from HOV lane requirements.15
Both the House and Senate bills would have continued and expanded upon
HOV lane exceptions established under TEA-21. Both bills included provisions that
would have:
14 The program could also have been funded from set-asides under the Surface
Transportation Program, National Highway System, and Interstate Maintenance programs.
15 For more information, see the discussion on “Hybrid Vehicles” in CRS Issue Brief
IB10128, Alternative Fuels and Advanced Technology Vehicles: Issues in Congress.
CRS-10
! Allowed exceptions for motorcycles and “low emission and highly
fuel efficient” vehicles (the definition of which may include hybrid
vehicles);
! Required DOT or EPA to establish a process for identifying vehicles
that meet the exception criteria;
! Provided for the discontinuation of these exceptions if the operation
of HOV lanes becomes seriously degraded as a result of lane
exceptions.
Clean Fuels Formula Grant Program. TEA-21 established a clean fuels
formula grant program to assist transit operators in the purchase of low-emission
buses and related equipment, construction of alternative-fuel fueling facilities,
modification of garage facilities to accommodate clean-fuel vehicles, and utilization
of biodiesel fuel.16 Projects in the grants program were to be funded under the Mass
Transit Account of the Highway Trust Fund and with general U.S. Treasury revenues.
Total funding set aside under TEA-21 for this grant program was $1 billion. Funds
were to be apportioned to recipients in urbanized areas designated as nonattainment
or maintenance areas for ozone or carbon monoxide. However, during the
appropriations process, Congress subsequently redirected these funds to a more
general fund for bus purchases not restricted to fuel type. While this grant program
has not been implemented, transit agencies have purchased clean fuel buses at their
discretion.17
Section 3009 of TEA-LU would have amended the grant program to change the
definition of a “clean fuel bus” and how funds may be apportioned. The program
would have provided grants to urban areas on a formula basis to purchase clean fuel
buses. The formula was based on the size of the bus fleet weighed against the
severity of nonattainment within the metropolitan region. TEA-LU would have set
aside a total of $525 million under the grants program. The Senate bill did not
propose to reauthorize the grant program. However, there were no provisions in the
Senate bill that would restrict a transit agency from continuing its current practice of
using funds from other transit programs to purchase such buses.
Issues Regarding Environmental Reviews
Before final design, property acquisition, or construction on a highway or transit
project can proceed, the FHWA and FTA must comply with all applicable
environmental review requirements, including those of the National Environmental
16 42 U.S.C § 5308.
17 For FY2000-FY2002, approximately $1.4 billion was obligated by FTA to assist transit
agencies in the purchase of alternative fuel buses. This amount represented approximately
34% of the federal funding obligated for the purchase of new transit buses for that period.
For data, see FTA’s Statistical Summaries, available online at [http://www.fta.dot.gov/
1473_ENG_HTML.htm].
CRS-11
Policy Act of 1969 (NEPA).18 NEPA requires all federal agencies to consider the
environmental impacts of proposed federal actions. To ensure that environmental
impacts are considered before final decisions are made, NEPA requires the
preparation of an environmental impact statement (EIS) for any federally funded
action that significantly affects the quality of the human environment. Projects for
which it is not initially clear whether impacts will be significant require the
preparation of an environmental assessment (EA). If it is determined at any time
during the assessment that a project’s impacts will be significant, an EIS must be
prepared. Projects that do not individually or cumulatively have a significant social,
economic, or environmental effect, and which DOT has determined from past
experience have no significant impact, are processed as categorical exclusions.
In addition to meeting NEPA requirements, any given transportation project may
require compliance with a wide variety of legal requirements, enforceable by multiple
agencies. For example, impacts of a highway project may trigger compliance with
elements of the Clean Air Act, the Endangered Species Act of 1973 (16 U.S.C.
1536), the National Historic Preservation Act (16 U.S.C. 470), or the Clean Water
Act (33 U.S.C. 1251). FHWA regulations require that compliance with all applicable
environmental laws, executive orders, and other legal requirements be documented
within the appropriate NEPA documentation (a concept referred to as the “NEPA
umbrella”).19
Legislative Proposals Regarding Environmental Reviews
Some Members of Congress have expressed concerns that the environmental
review process, particularly for large, complex surface transportation projects, can
be inefficient, leading to delays in completion of those projects. To address this
concern, TEA-21 included “Environmental Streamlining” provisions. Some
Members of Congress have expressed the need for further legislation to expedite the
environmental review process required of highway and transit projects. In response
to that need, both the Senate and House bills would have repealed TEA-21’s
streamlining provisions and instituted new procedures intended to expedite the
environmental review process.
Streamlining Environmental Reviews. Section 1511 of the Senate bill
would have established a new “transportation project development process” that
18 An “environmental review” refers to a requirement to show evidence of formal
consideration, evaluation, or analysis of the impacts of a proposed federal action. Most
often, the use of the term is in reference to the process of complying with NEPA
requirements. However, depending upon the project at issue, an environmental review may
refer to the process of complying with provisions of any applicable environmental
requirement.
19 For more detailed information about the NEPA process, see CRS Report RL32024,
Background on NEPA Implementation for Highway Projects: Streamlining the Process and
CRS Report RL32032, Streamlining Environmental Reviews of Highway and Transit
Projects: Analysis of Legislative Proposals in the 108th Congress.
CRS-12
could be implemented at the request of the project sponsor.20 The new process and
related provisions in S. 1072, applicable to highway and transit projects, included the
following:
! A codification of DOT’s traditional role as the lead federal agency
responsible for completion of the environmental review process.
! A statutory delineation of the roles and responsibilities of the lead
agency and cooperating agencies.
! A requirement to establish a “coordination plan” to coordinate
agency and public participation and to develop a schedule for
completion of the environmental review process.
! Provisions for the collaborative development of the project’s
statement of purpose and need and project alternatives as required
under NEPA or any other applicable statute.
! A requirement to follow specified dispute resolution procedures in
the event a cooperating agency identifies “major issues of concern”
regarding the potential environmental or socioeconomic impacts of
a project.
Section 1512 of the Senate bill would have authorized states to assume
responsibility for determining whether certain designated activities may be included
within the class of actions currently identified in FHWA regulations as categorical
exclusions. The criteria for making such a determination would have been established
by the Secretary of DOT and apply only to projects designated by the Secretary.
Such authority would have been determined through a mutual agreement between the
state and the Secretary and delineated in a memorandum of understanding.
Section 1513 of the Senate bill proposed the establishment of a “surface
transportation project delivery pilot program” that would delegate certain additional
federal environmental review responsibilities to no more than five states, including
Oklahoma. Responsibility could have been assumed for environmental reviews
required under NEPA, or any federal law, for one or more highway projects within
the state. The program was proposed to be administered in accordance with a written
agreement between the participating state and the Secretary. The Secretary was
directed to promulgate regulations to implement the pilot program within 270 days
of enacting the law.
Unless otherwise specified, Section 1515 of the Senate bill directed the
Secretary to promulgate regulations to implement each of the provisions discussed
above within one year of enacting the law.
The House bill included provisions related to the environmental review process
under Section 6002, “Efficient Environmental Reviews for Project Decisionmaking.”
Like the Senate bill, TEA-LU specified certain provisions intended to reduce delays
arising from the environmental review process. The House bill’s “project
development procedures” would have been applicable to all highway projects, public
20 Otherwise, current regulatory requirements that specify “Environmental Impact and
Related Procedures” under 23 C.F.R. 771 will apply.
CRS-13
transportation capital projects, and multimodal projects that require an EIS and to
other projects if appropriate. Further, proposed provisions regarding the project
development procedures would have:
! Statutorily designated DOT as the lead federal agency and the
project sponsor (if a state or local government) as the joint lead
agency for the environmental review process.
! Allowed the joint lead agency to prepare any supporting documents
if the federal lead agency provides guidance and assistance and
approved the documents.
! Required the environmental review process to be initiated by the
project sponsor.
! Required the project’s statement of purpose and need to be defined
and the project alternatives to be determined by the lead agency after
participating agencies and the public have an opportunity for
involvement.
! Established an extendable 60-day deadline on comments to a draft
EIS and an extendable 30-day deadline on all other comment periods
in the environmental review process.
! Established a dispute resolution process intended to identify and
resolve issues of concern that could delay completion of the
environmental review process.
! Required a state participating in the environmental review process
to require the participation of all appropriate state agencies.
! Allowed project funds to be provided to state and federal agencies
to support activities related to the environmental review process that
would expedite project delivery.
! Established a 90-day statute of limitation on claims concerning final
agency actions.
TEA-LU did not specifically direct the Secretary to develop or promulgate
regulations to implement the environmental review provisions of the bill.
Revisions to “Section 4(f)” Requirements. Included in the Senate bill
were revisions to “Section 4(f)” provisions of the Department of Transportation Act
of 1966.21 Section 4(f) requirements apply to publicly owned parks and recreation
areas, and wildlife and waterfowl refuges. They also apply to public or privately
owned historic sites of national, state, or local significance. Under current law, any
use of such a resource for a transportation project is prohibited unless there is no
prudent and feasible alternative to do otherwise, and the project includes all possible
planning to minimize harm to the resource.
21 Section 4(f) of the DOT Act was originally set forth at 49 U.S.C. § 1653(f) and applies
to all DOT projects. A similar provision, found at 23 U.S.C. § 138, applies specifically to
federal-aid highways. In 1983, as part of a general recodification of the DOT Act, 49 U.S.C.
§ 1653(f) was formally repealed and codified in 49 U.S.C. § 303 with slightly different
language. This provision no longer falls under a “Section 4(f),” but DOT has continued this
reference, given that over the years, the whole body of provisions, policies, and case law has
been collectively referenced as Section 4(f).
CRS-14
Both the House (§6003) and Senate (§1514) bills would have amended current
statutory provisions related to Section 4(f). The Senate bill would have amended the
current law to allow for the use of a Section 4(f) resource if it is determined that such
use would result in “de minimis impacts” to that resource. The House bill included
a similar provision; however, it would have applied only to the use of historic sites.
TEA-LU would have allowed the use of a historic site if the use was determined, in
accordance with provisions of the National Historic Preservation Act (16 U.S.C.
470f), to have no “adverse effect” on the site. Also, provisions in both the House
(§6004) and Senate (§1604) bills would have specifically exempted the Interstate
System, segments of which are approaching 50 years old, from consideration as a
historic site pursuant to Section 4(f).
Additional Environmental Issues
Provisions involving the implementation of the Clean Air Act and NEPA have
garnered the most attention and debate during the transportation reauthorization
process. However, some Members of Congress have also expressed concern
regarding a variety of other environment-related issues. In particular, both the House
and Senate bills included proposals that would have authorized funding for projects
or activities that minimize or mitigate potential environmental impacts of
transportation-related activities. Each bill also proposed to authorize funding for
research that may ultimately prove beneficial to the environment.
Expansion of Environmental Projects Eligible for Funding
A variety of highway programs, including the Surface Transportation Program
(STP) and the National Highway System (NHS) program, are funded through the
highway trust fund. The STP provides funding that may be used by states and
localities for projects on any federal-aid highway. The NHS program provides
funding to states for improvements to rural and urban roads that are part of the
national highway system, including the Interstate System and designated connections
to major intermodal terminals.
Both the House and Senate bills proposed to set aside STP and/or NHS funds
for specific projects. However, the Senate bill would have authorized the use of STP
and/or NHS funds for a variety of programs or projects intended to minimize or
mitigate environmental impacts related to surface transportation projects. Following
is a list of projects or programs for which STP and/or NHS program funds would
have been required to be spent or for which such funds may have been eligible under
S. 1072:
! Habitat and Wetlands Project Mitigation Fund — The Senate bill
would have allowed a state to deposit into a habitat and wetlands
mitigation fund part of the funds apportioned to it under the STP and
NHS programs. [§1505]
! Environmental Restoration and Pollution Abatement — The Senate
bill would have expanded eligibility under both the STP and NHS
programs to fund pollution abatement and environmental restoration
CRS-15
projects. To minimize or mitigate the impacts of any transportation
project, S. 1072 would have allowed environmental restoration and
pollution abatement to be carried out to address water pollution or
environmental degradation caused wholly or partially by a
transportation facility. This would have included retrofitting and
construction of storm water treatment systems to meet federal and
state requirements under the Federal Water Pollution Control Act
(33 U.S.C. 1341, 1342). [§1601]
! Control of Invasive Species — The Senate bill would have expanded
eligibility under both the STP and NHS programs for the control of
invasive species and the establishment of native plant species.
Activities funded under the program would have included
participation in statewide inventories of invasive plant species and
desirable plant species; regional native plant habitat conservation
and mitigation; native re-vegetation; and elimination of invasive
species to create fuel breaks for the prevention and control of
wildfires. [§1601]
! Highway Stormwater Discharge Mitigation Program — Stormwater
mitigation is currently eligible for STP funding as a Transportation
Enhancement project. The Senate bill would have required 2 percent
of a state’s STP apportionment to be available for mitigation
projects to improve the quality of stormwater discharge from
federal-aid highways. Funding could have been provided for
projects that reduce flooding; recharge groundwater; promote natural
filters; minimize stream bank erosion; and improve water quality.
The Secretary of DOT would have been required to issue guidance
to assist states in carrying out the program. [§1620]
Funding for Surface Transportation Research Projects
Both the House and Senate bills proposed to authorize funding for transportation
research projects out of the highway trust fund. Both bills would have authorized
funding for surface transportation research related to the environment.
Advanced Vehicle Technologies Research. Authorized under TEA-21,
the Advanced Vehicle Technologies Program (AVP) was intended to research means
of improving energy efficiency while reducing emissions and transportation
dependence on petroleum. Of $250 million authorized for this program under TEA-
21, Congress appropriated a total of $10 million.
The Senate bill would have repealed TEA-21’s AVP program and did not
replace it. The House bill (§ 5401) would have replaced the program with an
“Advanced Heavy-Duty Vehicle Technologies Research Program.” Provisions in the
House bill directed the Secretary of DOT to conduct research, development,
demonstration, and testing on advanced heavy-duty vehicle technologies. The total
authorization for the program would have been $34 million. At least 50 percent of
program funding would have been required to be provided by non-federal sources.
Surface Transportation Environment and Planning Cooperative
Research Program. Established under TEA-21, the Secretary of DOT was
CRS-16
required to establish a surface transportation-environment cooperative research
program. Included among the program’s research priorities is a requirement to
improve understanding of the factors that contribute to the demand for transportation;
develop indicators of economic, social, and environmental performance of
transportation systems to facilitate analysis of potential alternatives; and study the
relationship between highway density and ecosystem integrity. One component of
the program was the establishment of an Advisory Board to make recommendations
on environmental and energy conservation research, technology, and technology
transfer activities related to surface transportation. Under the program, the Secretary
was authorized to make grants to, and enter into cooperative agreements with, the
National Academy of Sciences to conduct activities relating to transportation-
environmental research. Over TEA-21’s authorization period (FY1998-FY2003),
Congress did not appropriate funds for this program.
Both the House (§5203) and Senate (§2101) bill included provisions that would
have reauthorized funding for the program. The House bill would have set aside $5
million for FY2004 and $15 million per year for FY2005-FY2009 from the Surface
Transportation Research funds. The House bill would also have allowed additional
funding to be sought from public and private sources. The Senate bill would have
set aside $20 million a year, for the six-year reauthorization period, from Surface
Transportation Research funds. The Senate bill would have allowed research to
address planning and evaluation models, factors contributing to transportation
demand, and transportation performance indicators to meet environmental
requirements and facilitate analysis of potential alternatives.