Environmental Provisions in Surface Transportation Reauthorization Legislation: TEA-LU (H.R. 3) and SAFETEA (S. 732)

Order Code RL32454

CRS Report for Congress

Received through the CRS Web

Environmental Provisions in Surface Transportation

Reauthorization Legislation: TEA-LU (H.R. 3) and

SAFETEA (S. 732)

Updated June 8, 2005

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: TEA-LU and SAFETEA

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). Conferees failed to reach an agreement on final reauthorization legislation

before adjournment of the 108th Congress. Early in the 109th Congress, legislation

was introduced with essentially the same policy provisions as those proposed in the

108th Congress. The House passed its bill (H.R. 3), the Transportation Equity Act: A

Legacy for Users (TEA-LU), on March 10, 2005. On May 17, 2005, the Senate

passed its amended version of H.R. 3 (previously S. 732), the Safe, Accountable,

Flexible, and Efficient Transportation Equity Act of 2005 (SAFETEA). The bills

now go to conference.

During the reauthorization process, certain environmental issues have garnered

significant attention from both Members of Congress and interested stakeholders

(e.g., state transportation agencies, transportation construction organizations, and

environmental groups). This attention is 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.

Generally, environmental provisions in the proposed legislation would 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 include provisions that would

change 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.).

Legislation currently under consideration would reauthorize surface

transportation programs through FY2009. 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, the Surface Transportation

Extension Act of 2005 (H.R. 2566), extended funding for surface transportation

programs until June 30, 2005. This report will 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 . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Proposed Changes to Conformity Demonstration Requirements . . . . . 6

CMAQ Funding Authorization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Use of HOV Lanes for Hybrid Vehicles . . . . . . . . . . . . . . . . . . . . . . . . 9

Clean Fuels Formula Grant Program . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Issues Regarding Environmental Reviews . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Legislative Proposals Regarding Environmental Reviews . . . . . . . . . . . . . 11

Streamlining Environmental Reviews . . . . . . . . . . . . . . . . . . . . . . . . . 12

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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

List of Tables

Table 1. Legislative Provisions Regarding Conformity Proposed in the

Senate and House Bills . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Environmental Provisions in Surface

Transportation Reauthorization Legislation:

TEA-LU and SAFETEA

Introduction

This report discusses legislative provisions regarding environmental issues in

House and Senate bills reauthorizing surface transportation programs through

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

House passed its bill (H.R. 3), the Transportation Equity Act: A Legacy for Users

(TEA-LU), on March 10, 2005. On May 17, 2005, the Senate passed its amended

version of H.R. 3 (previously approved by the Senate Environment and Public Works

Committee as S. 732), the Safe, Accountable, Flexible, and Efficient Transportation

Equity Act of 2005 (SAFETEA).1

During the reauthorization process, certain environmental issues have garnered

significant attention from both Members of Congress and interested stakeholders

(e.g., state transportation agencies, transportation construction organizations, and

environmental groups). This attention is 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 include many provisions regarding the

environment. Generally, the provisions propose to do one of the following: authorize

funding to eliminate, control, mitigate, or minimize regulated environmental impacts

associated with a surface transportation program or project; or specify procedures

required to be undertaken to comply with certain environmental requirements. In

particular, both bills include provisions that would change the procedures DOT

would be required to follow to comply with the Clean Air Act and the National

Environmental Policy Act (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

1

With few exceptions, including the bill titles, provisions in H.R. 3 and S. 732 are identical

to those in transportation reauthorization legislation passed by the House (H.R. 3550) and

the Senate (S. 1072) during the 108th Congress. The most significant difference is in total

funding levels. For information about funding issues, see CRS report IB10138, Surface

Transportation: Reauthorization of TEA-21, by John W. Fischer.

CRS-2

considers reauthorization proposals. The most recent extension, the Surface

Transportation Extension Act of 2005 (H.R. 2566), extends funding for surface

transportation programs through June 30, 2005.

This report focuses on provisions of H.R. 3 (as passed by either the House or

the Senate) concerning environmental requirements that may affect federal funding

or delivery of surface transportation programs or projects. 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.2 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.”3 A “maintenance”

area is one that was previously in nonattainment, but is currently attaining the

NAAQS subject to a maintenance plan.4

2

Regulated particulates are either “coarse” (between 2.5 and 10 micrometers in diameter,

known as PM10) or “fine” (less than 2.5 micrometers, known as PM2.5). PM10 from

transportation sources may come from brake and tire wear, pavement wear, and other

vehicle degenerative processes. PM2.5 are emitted from combustion sources, such as diesel

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.

3

For information on areas currently designated as in nonattainment, see EPA’s “Green

Book Nonattainment Areas for Criteria Pollutants,” available online at [http://www.epa.gov/

oar/oaqps/greenbk/index.html], as of June 8, 2005.

4

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

The NAAQS for particulates, CO, NOx, and short-term (one-hour)

concentrations of ozone have been in effect since the 1970s. However, a more

stringent standard for ozone (an 8-hour concentration) and new standards for fine

particulates (PM2.5) go into effect this year. In April 2004, part or all of 474 counties

were designated as in nonattainment for the new ozone standard. In January 2005,

EPA announced that part or all of 225 counties were in nonattainment for PM2.5 .5

The Clean Air Act requires states to develop a State Implementation Plan (SIP)

to demonstrate how they will implement, maintain, and enforce the NAAQS.6 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.7

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) conform 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.8

Specifically, Section 176(c) of the Clean Air Act requires that planned transportation

projects will not:

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Cause new air quality violations;

Worsen existing NAAQS violations; or

Delay attainment of relevant NAAQS.

5

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.

6

42 U.S.C. § 7410.

7

Such areas are classified according to the extent to which pollution levels exceed the

standards; designations include marginal, moderate, serious, severe, and extreme.

8

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], as of June 8, 2005.

CRS-4

Transportation plans look at a 20-year planning horizon and specify the longterm 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.9

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.”10 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 2003, the General Accounting Office (GAO, now called the

Government Accountability Office) reported that, over the previous six years, only

five metropolitan areas 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.11

The CMAQ Program

In the year following the Clean Air Act Amendments of 1990, the Intermodal

Surface Transportation Efficiency Act of 1991 (ISTEA)12 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

9

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?

10

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.

11

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.

12

ISTEA was the surface transportation authorization legislation for FY1991-FY1997.

CRS-5

improvements and congestion mitigation. In particular, it authorized funding for

programs and projects intended to reduce carbon monoxide (CO) and ozone.

ISTEA established a formula to apportion CMAQ funds largely based on a

state’s pollution reduction needs. The population of each area in a state that is a

nonattainment or maintenance area for ozone and/or CO is multiplied by a weighting

factor based on the level of nonattainment (e.g., moderate, serious, severe). States

with no maintenance or nonattainment areas are guaranteed at least 0.5 percent of

each year’s authorized CMAQ funds.

Under TEA-21, a total of $8.1 billion was authorized for the program for

FY1998-FY2003. TEA-21 also expanded the program to allow the use of CMAQ

funds for projects and programs intended to reduce PM10. TEA-21 did not, however,

change the apportionment formula. Therefore, states with maintenance or

nonattainment areas for only PM10 receive the guaranteed minimum CMAQ funding.

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 PM10.13 CMAQ funds cannot be used for projects that will

result in new highway capacity. Specific types of projects eligible for CMAQ funds

include, but are not limited to:

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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.14

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.

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,

13

DOT Program Guidance: “The Congestion Mitigation and Air Quality Improvement

(CMAQ) Program Under the Transportation Equity Act of the 21st Century (TEA-21),”

April 1999, available online at [http://www.fhwa.dot.gov/environment/cmaq99gm.htm], as

of June 8, 2005.

14

Ibid.

CRS-6

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.

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 and/or Senate bills that relate, either directly or indirectly,

to attainment of the NAAQS.

Proposed Changes to Conformity Demonstration Requirements.

Both the House and Senate bills propose to amend 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 legislative provisions regarding conformity is

provided in Table 1.

Table 1. Legislative Provisions Regarding Conformity

Proposed in the Senate and House Bills

Proposal

Senate

House

Change in

frequency of

conformity

determinations

for long-range

transportation

plans and

programs

Currently, conformity determinations

for long-range transportation plans,

metropolitan TIPs, and statewide TIPs

must be completed every three years,

two years, and three years,

respectively. The Senate bill would

require each of these planning

documents to be updated every four

years in nonattainment areas and five

years in attainment and maintenance

areas. The minimum frequency within

which transportation conformity must

be 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(a)]

Allows conformity

determinations for

transportation plans and

programs to be

determined every four

years in nonattainment

areas. [§ 1824(b)]

Change in

conformity

horizon for

long-term

transportation

plans

Reduces from 20 years the current

planning horizon over which

conformity must be demonstrated. The

conformity horizons for transportation

plans would extend for the longest of:

the first 10 years of the plan; the latest

year in the SIP’s motor vehicle

emissions budget; or the year after

Continues the requirement

that conformity be

demonstrated through the

last year of the

transportation plan except

in areas where the

metropolitan planning

organization (MPO) and

CRS-7

Proposal

Senate

House

completion of a regionally significant

project. [§ 1615(b)]

air pollution control

agency agree to reduce the

horizon. In such cases,

the conformity 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)]

New

conformity

determination

requirements

Requires a new conformity

determination for transportation plans

or programs within two years of

EPA’s adequacy finding or approval

of a new motor vehicle emissions

budget. [§ 1615(b)]

Similar to provisions in

Senate bill. [§ 1824(a)]

Change in

definition of a

“transportation

project”

Redefines a “transportation project,”

for which a conformity determination

would be required to include only

regionally significant projects or a

project that makes a significant

revision to an existing project. [§

1615(b)]

No comparable provision.

Transition to

new air quality

standards for

ozone and

PM2.5

Allows areas that have not been in

nonattainment before, and not been

required to demonstrate transportation

conformity before, to use an emissions

budget in a SIP for the prior standard

for the same pollutant, if one is

available. [§ 1616]

No comparable provision.

Waiver of

conformity

determination

Allows transportation control

measures to be substituted or added to

a SIP without a new conformity

determination, if the substitute

measures achieve equivalent or greater

emissions reductions. [§ 1617]

Similar to provisions in

Senate bill. [§ 6001]

Defining a

conformity

lapse

No comparable provision.

Allows 12-month grace

period after a conformity

lapse. [§ 1824(e)]

Source: Table prepared by the Congressional Research Service (CRS) based on an analysis of

provisions of House- and Senate-passed versions of H.R. 3.

CRS-8

CMAQ Funding Authorization. Both the House and Senate bills would

retain the basic structure of the CMAQ program specified under TEA-21 and

increase its funding overall. The Senate bill would authorize a total of $10.8 billion

(§ 1101(5)) for FY2005-FY2009, and the House a total of $9.5 billion (§ 1101(a)(6))

for FY2004-FY2009.

Provisions in both bills would expand eligibility for projects funded under the

CMAQ program. Each bill specifies funding eligibility in one of two ways. First,

23 U.S.C. 149(b) would be amended to add new classes of projects to the CMAQ

program. Second, clarification would be provided regarding CMAQ funding

eligibility for certain projects for which there has been some confusion among the

regulated community. Following is a summary of proposed projects in both groups:

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Transportation Systems Management and Operations — Both the

House and Senate bills would expand the scope of CMAQ funding

available for transportation systems management and operations.

The House bill includes 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. [Senate bill §

1701; House bill § 1202]

Advanced Truck Stop Electrification Systems — The House bill

specify that CMAQ funds could 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 be 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 is included in the Senate bill.

However, confusion regarding current eligibility for funding such

projects is discussed in the Senate Report of the Committee on

Environment and Public Works (109-53). In the report, the

Committee states that such systems qualify for CMAQ funding

under current law, and directs DOT and EPA to issue guidance to all

appropriate federal, state, and local agencies regarding this issue.

[Senate Report 109-53, discussion of § 1612; House bill § 1828]

Bicycle Transportation and Pedestrian Walkways — The Senate bill

would allow the use of Surface Transportation Program (STP) and

CMAQ funds for non-construction pedestrian and bicycle safety

projects. The bill would also specifically set aside $446,541 in

annual funding for pedestrian and bicycle safety grants. [§ 1607]

Purchase of Alternative Fuels — The Senate bill would make

eligible for CMAQ funding projects or programs for the purchase of

alternative fuel or biodiesel. [§ 1612(a)]

Diesel retrofit — The Senate bill would make eligible for CMAQ

funding diesel retrofit technologies. [§ 1612(a)]

Emergency Communication Equipment — The Senate bill would

make eligible for CMAQ funding projects or programs involving the

purchase of “integrated, interoperable emergency communications

equipment.” [§ 1612(a)]

CRS-9

The Senate bill also proposes to change the way the CMAQ program would be

implemented through provisions that would:

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Expand the CMAQ apportionment formula to include areas in

nonattainment for the new PM2.5 and 8-hour ozone standards. [§

1611]

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

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 is a provision that would establish a motor vehicle

congestion relief program (§ 1201) to be funded under existing federal highway

programs, including CMAQ.15 The program would fund 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

include:

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The construction of additional lanes, improved interchanges, or

improved access to major terminals, 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,

15

The program could also be funded from set-asides under the Surface Transportation

Program, National Highway System, and Interstate Maintenance programs.

CRS-10

there is congressional interest in explicitly granting states the right to exempt them

from HOV lane requirements.16

Both the House (§ 1208) and Senate (§ 1606) bills would continue and expand

upon HOV lane exceptions established under TEA-21. Both bills include provisions

that would:

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Allow exceptions to HOV requirements for motorcycles, ILEVs,

“low-emission and energy-efficient” vehicles (the definition of

which may include hybrid vehicles), public transportation vehicles,

and other vehicles if the operator pays a toll;

Require DOT or EPA to establish a process for identifying and

certifying vehicles that meet the HOV exceptions; and

Provide 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.17 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.

Section 3009 of TEA-LU would amend the grant program to change the

definition of a “clean fuel bus” and how funds may be apportioned. The program

would provide grants to urban areas on a formula basis to purchase clean fuel buses.

The formula is based on the size of the bus fleet weighed against the severity of

nonattainment within urbanized areas above certain population levels. TEA-LU (§

3034) would authorize $75 million for FY2004 and $100 million for each of FY2005

through FY2009 to carry out this program. The Senate bill does not specifically fund

the grant program. However, there are 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.

16

For more information, see the discussion on “Hybrid Vehicles” in CRS Issue Brief

IB10128, Alternative Fuels and Advanced Technology Vehicles: Issues in Congress.

17

42 U.S.C. § 5308.

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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

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 repeal TEA-21’s streamlining

provisions and institute new procedures intended to expedite the environmental

review process.

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 TEA-LU (H.R. 3) and SAFETEA (S. 732).

CRS-12

Streamlining Environmental Reviews. Section 1511 of the Senate bill

would establish a new “transportation project development process” that could be

implemented at the request of the project sponsor.20 The new process and related

provisions in the Senate bill, applicable to highway and transit projects, include the

following:

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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 authorize 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 be established by the Secretary

of DOT and apply only to projects designated by the Secretary. Such authority would

be determined through a mutual agreement between the state and the Secretary and

delineated in a memorandum of understanding.

Section 1513 of the Senate bill proposes to establish 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 be assumed for environmental reviews required

under NEPA, or any federal law, for one or more highway projects within the state.

The program would be administered in accordance with a written agreement between

the participating state and the Secretary. The Secretary is 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 directs the Secretary

to promulgate regulations to implement each of the provisions discussed above

within one year of enacting the law.

The House bill includes its provisions related to the environmental review

process under Section 6002, “Efficient Environmental Reviews for Project

Decisionmaking.” Like the Senate bill, TEA-LU specifies certain provisions intended

to reduce delays arising from the environmental review process. The House bill’s

20

Otherwise, current regulatory requirements that specify “Environmental Impact and

Related Procedures” under 23 C.F.R. 771 will apply.

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“project development procedures” would be applicable to all highway projects,

public 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:

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!

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Statutorily designate 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.

Allow the joint lead agency to prepare any supporting documents if

the federal lead agency provides guidance and assistance and

approved the documents.

Require the environmental review process to be initiated by the

project sponsor.

Require 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.

Establish 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.

Establish a dispute resolution process intended to identify and

resolve issues of concern that could delay completion of the

environmental review process.

Require a state participating in the environmental review process to

require the participation of all appropriate state agencies.

Allow project funds to be provided to state and federal agencies to

support activities related to the environmental review process that

would expedite project delivery.

Establish a 90-day statute of limitation on claims concerning final

agency actions.

TEA-LU does not specifically direct the Secretary to promulgate regulations to

implement the environmental review provisions of the bill.

Revisions to “Section 4(f)” Requirements. Both the House (§ 6003) and

Senate (§ 1514) bills would amend current statutory provisions related 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

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).

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alternative to do otherwise, and the project includes all possible planning to minimize

harm to the resource.

The Senate bill would amend 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 includes a similar provision; however, it would

apply only to the use of historic sites. TEA-LU would allow the use of a historic site

if the use is 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 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 include proposals that would authorize funding for projects or

activities that minimize or mitigate potential environmental impacts of

transportation-related activities. Each bill would also 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 propose to set aside STP and/or NHS funds for

specific projects. However, the Senate bill would authorize 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 be required

to be spent or for which such funds may have been eligible under the Senate bill:

!

!

Habitat, Streams, and Wetlands Project Mitigation Fund — Allow

a state to deposit into a habitat, streams, and wetlands mitigation

fund part of the funds apportioned to it under the STP and NHS

programs. [§ 1505]

Environmental Restoration and Pollution Abatement — Expand

eligibility under both the STP and NHS programs to fund pollution

abatement and environmental restoration projects. To minimize or

CRS-15

!

!

mitigate the impacts of any transportation project, the Senate bill

would allow 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 could include 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 — Expand 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 could include 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 require 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 be provided for projects that reduce

flooding; recharge groundwater; promote natural filters; minimize

stream bank erosion; and improve water quality. The Secretary of

DOT would be 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 propose to authorize funding for transportation

research projects, related to the environment, out of the highway trust fund.

Advanced Vehicle Technologies Research. Authorized under TEA-21,

the Advanced Vehicle Technologies Program (AVP)22 was established to support the

production of cleaner, more energy efficient vehicles (e.g., electric or hybrid-electric

vehicles). The program is managed by DOT in partnership with other federal

agencies (e.g., Department of Defense, Department of Energy), private companies,

research institutions, and state and local governments. Of $250 million authorized

for this program under TEA-21, Congress appropriated a total of $10 million.

The Senate bill does not specifically authorize funding for the AVP program.

The House bill replaces the existing program with an “Advanced Heavy-Duty

Vehicle Technologies Research Program” (§ 5401). Under this section, the Secretary

of DOT is directed to conduct research, development, demonstration, and testing to

integrate emerging advanced heavy-duty vehicle technologies in order to “provide

seamless, safe, secure, and efficient transportation and to benefit the environment.”

The House bill would authorize the appropriation of $1 million for FY2004 and $3

22

49 U.S.C. § 5506.

CRS-16

million for each of FY 2005 through FY20009 from the Highway Trust Fund for the

program. For any given project, at least 50 percent of the funding would be 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

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 transportationenvironmental research. Over TEA-21's authorization period (FY1998-FY2003),

Congress did not appropriate funds for this program.

Both the House (§ 5203) and Senate (§ 2101) bills include provisions that would

reauthorize funding for this program. The House bill would 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 allow additional funding

to be sought from public and private sources. The Senate bill (§ 2001(a)(1)(B))

would set aside a total of $18.7 million per year for FY2005 through FY2009 from

Surface Transportation Research funds. The Senate bill would allow 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.