The use of PPPs for transportation requires enabling legislation allowing the public sector to enter into agreements with the private sector to provide transportation infrastructure. According to FHWA's PPP website, 23 states and Puerto Rico have enabling legislation for PPPs. Some states' legislation only provides authority to implement specific projects contained in legislation. For instance, legislation in Indiana specifically approved the Indiana Toll Road concession, and future PPPs in this state will require further legislative approval. Design-build has been used more extensively, with 30 of the 44 states in our survey having used this PPP option, and 36 states indicating that they have considered design-build. Individual PPP proposals must be approved by the legislature in Alaska, California, Delaware, Florida, Indiana, Louisiana, Tennessee, and Washington State-about one-third of the states that have PPP-enabling legislation. In some of these states, projects are limited by a specified number of greenfield projects (e.g., Alaska, California, and Tennessee), whereas others only require legislative approval for brownfield concessions (i.e., Florida).
Over the last two years, a few high-profile long-term concession agreements intensified the debate of PPPs in general, and raised concerns about the extent to which the legislative branches of government have an opportunity to review, understand, and influence PPP deals. Several events of 2007 demonstrate that state legislators are concerned about the speed and transparency of long-term concession contracts:
• The Texas legislature imposed a two-year moratorium on PPPs and directed the Texas Transportation Commission to accept a new bid from North Texas Tollway Authority for the construction of SH-121, which had been originally awarded to a private consortium;
• In Pennsylvania, the legislature moved to enact Act 44 to allow a "public-public" partnership between the Pennsylvania DOT and the Pennsylvania Turnpike Authority, after the governor had issued a request for "expressions of interest" for the potential lease of the Pennsylvania Turnpike;
• New Jersey legislators filed a lawsuit against the Corzine administration to make public a feasibility study on the "monetization" of existing toll roads in the state; and
• The House Transportation and Infrastructure Committee held hearings on PPP topics, including protecting the public interest, and Congressmen Oberstar and DeFazio issued a letter cautioning states entering into PPP agreements for transportation infrastructure.
In contrast to these legislative reactions, our "state DOT" survey found that a significant number of the respondents (18%) considered the concern of lack of time for legislative review or no legislative branch review as "not important" when compared with other PPP concerns from the survey. On the other hand, a respondent of the interested parties' survey, who represented an interest group that advocates for public interests, proposed that legislatures should not only provide enabling legislation for PPPs, but also approve final concession agreements.