[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
RESPONSIBLY AND PROFESSIONALLY
INVIGORATING DEVELOPMENT
(RAPID) ACT OF 2013
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON
REGULATORY REFORM,
COMMERCIAL AND ANTITRUST LAW
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
ON
H.R. 2641
__________
JULY 11, 2013
__________
Serial No. 113-42
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://judiciary.house.gov
_____
U.S. GOVERNMENT PRINTING OFFICE
81-852 PDF WASHINGTON : 2013
-----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC
area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC, Washington, DC
20402-0001
COMMITTEE ON THE JUDICIARY
BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin JERROLD NADLER, New York
HOWARD COBLE, North Carolina ROBERT C. ``BOBBY'' SCOTT,
LAMAR SMITH, Texas Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
SPENCER BACHUS, Alabama ZOE LOFGREN, California
DARRELL E. ISSA, California SHEILA JACKSON LEE, Texas
J. RANDY FORBES, Virginia STEVE COHEN, Tennessee
STEVE KING, Iowa HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona Georgia
LOUIE GOHMERT, Texas PEDRO R. PIERLUISI, Puerto Rico
JIM JORDAN, Ohio JUDY CHU, California
TED POE, Texas TED DEUTCH, Florida
JASON CHAFFETZ, Utah LUIS V. GUTIERREZ, Illinois
TOM MARINO, Pennsylvania KAREN BASS, California
TREY GOWDY, South Carolina CEDRIC RICHMOND, Louisiana
MARK AMODEI, Nevada SUZAN DelBENE, Washington
RAUL LABRADOR, Idaho JOE GARCIA, Florida
BLAKE FARENTHOLD, Texas HAKEEM JEFFRIES, New York
GEORGE HOLDING, North Carolina
DOUG COLLINS, Georgia
RON DeSANTIS, FLORIDA
JASON T. SMITH, Missouri
Shelley Husband, Chief of Staff & General Counsel
Perry Apelbaum, Minority Staff Director & Chief Counsel
------
Subcommittee on Regulatory Reform, Commercial and Antitrust Law
SPENCER BACHUS, Alabama, Chairman
BLAKE FARENTHOLD, Texas, Vice-Chairman
DARRELL E. ISSA, California STEVE COHEN, Tennessee
TOM MARINO, Pennsylvania HENRY C. ``HANK'' JOHNSON, Jr.,
GEORGE HOLDING, North Carolina Georgia
DOUG COLLINS, Georgia SUZAN DelBENE, Washington
JASON T. SMITH, Missouri JOE GARCIA, Florida
HAKEEM JEFFRIES, New York
Daniel Flores, Chief Counsel
James Park, Minority Counsel
C O N T E N T S
----------
JULY 11, 2013
Page
THE BILL
H.R. 2641, the ``Responsibly and Professionally Invigorating
Development (RAPID) Act of 2013''.............................. 4
OPENING STATEMENTS
The Honorable Spencer Bachus, a Representative in Congress from
the State of Alabama, and Chairman, Subcommittee on Regulatory
Reform, Commercial and Antitrust Law........................... 1
The Honorable Steve Cohen, a Representative in Congress from the
State of Tennessee, and Ranking Member, Subcommittee on
Regulatory Reform, Commercial and Antitrust Law................ 36
The Honorable Tom Marino, a Representative in Congress from the
State of Pennsylvania, and Member, Subcommittee on Regulatory
Reform, Commercial and Antitrust Law........................... 38
WITNESSES
William K. Kovacs, Senior Vice President, Environment, Technology
& Regulatory Affairs, U.S. Chamber of Commerce
Oral Testimony................................................. 43
Prepared Statement............................................. 45
Dennis J. Duffy, Vice President and Counsel, Cape Wind
Associates, LLC
Oral Testimony................................................. 61
Prepared Statement............................................. 63
Scott Slesinger, Legislative Director, Natural Resources Defense
Council
Oral Testimony................................................. 71
Prepared Statement............................................. 73
Nick Ivanoff, President & CEO, Ammann & Whitney, on behalf of
American Road & Transportation Builders Association (ARTBA)
Oral Testimony................................................. 96
Prepared Statement............................................. 98
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Prepared Statement of the Honorable Bob Goodlatte, a
Representative in Congress from the State of Virginia, and
Chairman, Committee on the Judiciary........................... 40
Prepared Statement of the Honorable John Conyers, Jr., a
Representative in Congress from the State of Michigan, and
Ranking Member, Committee on the Judiciary..................... 41
Material submitted by the Honorable Hakeem Jeffries, a
Representative in Congress from the State of New York, and
Member, Committee on Regulatory Reform, Commercial and
Antitrust Law.................................................. 116
Material submitted by the Honorable Henry C. ``Hank'' Johnson,
Jr., a Representative in Congress from the State of Georgia,
and Member, Subcommittee on Regulatory Reform, Commercial and
Antitrust Law.................................................. 178
APPENDIX
Material Submitted for the Hearing Record
Response to Questions for the Record from William K. Kovacs,
Senior Vice President, Environment, Technology & Regulatory
Affairs, U.S. Chamber of Commerce.............................. 188
Response to Questions for the Record from Dennis J. Duffy, Vice
President and Counsel, Cape Wind Associates, LLC............... 191
Response to Questions for the Record from Scott Slesinger,
Legislative Director, Natural Resources Defense Council........ 192
RESPONSIBLY AND PROFESSIONALLY INVIGORATING DEVELOPMENT (RAPID) ACT OF
2013
----------
THURSDAY, JULY 11, 2013
House of Representatives,
Subcommittee on Regulatory Reform,
Commercial and Antitrust Law
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to call, at 10:02 a.m., in
room 2141, Rayburn Office Building, the Honorable Spencer
Bachus (Chairman of the Subcommittee) presiding.
Present: Representatives Bachus, Goodlatte, Marino, Cohen,
Johnson, DelBene, and Jeffries.
Staff present: (Majority) Daniel Flores, Chief Counsel;
Ashley Lewis, Clerk; Jaclyn Louis, Legislative Director to Mr.
Marino; Sarah Vanderwood, Legislative Assistant to Mr. Holding;
and (Minority) James Park, Minority Counsel.
Mr. Bachus. Good morning. The Subcommittee on Regulatory
Reform, Commercial and Antitrust Law hearing will come to
order.
Without objection, the Chair is authorized to declare a
recess at any time.
We welcome all our witnesses today.
We are going to have votes on the floor, which we normally
do not have on a Thursday, but the Farm Bill is back. So we do
expect to have some interruptions, which we apologize in
advance for.
Our format is for opening statements of Members and then
the panel. So we will proceed with that.
And at this time, I would like to recognize Mr. Marino, the
gentleman from Pennsylvania, who is the sponsor of the bill,
for his opening statement.
Mr. Marino. I would like to reserve my time.
Mr. Bachus. Let me give my opening statement, and then we
will go back and have the sponsor give his opening statement.
Summer is what we usually know as a high time for outdoor
construction projects. In fact, it is when you sometimes hear
complaints from some people that there is too much construction
going on. I am not sure I have heard that anytime lately.
But especially when it comes to roads, each of these
projects is creating jobs, improving safety, and modernizing
our transportation system. And let me add as an aside I am also
one of those who believes we need to be investing more in our
infrastructure.
Unfortunately, there is a big roadblock out there to
completing all the work that we desperately need to have done
on our highways and roads and bridges. That is an inexcusable
slow process imposed by Washington on the permitting of new
construction projects. Under the National Environmental Policy
Act, Federal agencies must review proposed new projects for
environmental impacts and that is fine. But it is unacceptable
that the progress has grown to one that drags out for years.
Just this past May we heard that President Obama expressed
similar concerns during a speech in Baltimore, and he said, I
quote, ``One of the problems we have had in the past is that
something--sometimes it takes too long to get projects off the
ground. There are all these permits and red tape and planning
and this and that, and some of it is important to do but we
could do it faster.''
Quite frankly, it was the original intent that we do it
faster. When NEPA was in its infancy, the Council of
Environmental Quality promised that under its regulations even
large, complex energy projects would require only about 12
months for the completion of the entire process. And that is
the environmental impact statement. And now, instead, it
sometimes seems incredibly difficult to get permission in a
timely manner for even a small project. And when it comes to
large projects, such as the construction of the Northern
Beltline in the Birmingham area that I represent, the
challenges are even greater.
There are some who would argue that current economic
reviews is working well and should not be changed. We have a
witness today from the National Resources Defense Council who
will tell us that if the review process is shortened and
streamlined, all important environmental factors might not be
taken into account. And I do not begrudge them for that
position, but I find it ironic that a witness from the same
organization testified here Tuesday that we should not take
extra time when it comes to assessing the adverse job impacts
of Federal agency decisions. So they were here 2 days ago
saying we should get the rules and regs out and not spend time
seeing whether there is an impact on jobs. So what needed to be
faster on Tuesday needs to slow up on Thursday I guess.
The legislation we are considering today, the RAPID Act,
would streamline the permitting process in a way that would
still allow all appropriate environmental reviews to be done.
It would reduce the time it takes to review new construction
projects and ensure that the permitting process is not
endlessly held up in the courts.
Let me thank Mr. Marino for re-introducing this
legislation. I am proud to be an original cosponsor of his
legislation.
This legislation is modeled on the successful permitting
streamlining provisions of the recent bipartisan SAFETEA-LU and
MAP-21 transportation bills. Both of those transportation
reauthorization bills had my strong support and the support of
most Judiciary Committee Members on both sides of the aisle.
Under SAFETEA-LU alone, the time for completing environmental
impact statements has been cut nearly in half, but further
reforms are needed and the RAPID Act is a further step forward.
Let me conclude by saying one thing we all agree on, that
we need more jobs. Construction jobs can be some of the best
paying jobs out there, and when you talk about young people, a
summer construction job can be a way to help pay for college.
It was for me. I worked every summer for a construction company
as I went through Auburn and then 1 year at Alabama Law School.
To me, this is a winning piece of legislation that will create
jobs, allow a lot of students to help pay for their educations,
and others to feed their families and allow us to get on with
the urgent task of modernizing our Nation's crumbling
infrastructure, whether it is water, sewer, or highways.
And with that, I yield to the Ranking Member of the
Subcommittee, Mr. Cohen, who I think is all excited about this
bill too.
[The bill, H.R. 2641, follows]:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. Cohen. War Eagle.
Thank you, Mr. Chairman.
I am excited. Not really.
The RAPID Act, otherwise known as the Responsibly and
Professional Invigorating Development Act of 2013, creates a
new subchapter of the APA to prescribe how environmental
reviews required by NEPA, the National Environmental Policy
Act, should be conducted for Federal construction projects. I
do have sympathy that we want to get projects like this
completed quickly, but I do not want to bypass safety concerns.
The bill imposes deadlines for agency permit approvals, once
the NEPA review process is complete, and would deem approved
any application for a permit when an agency does not meet those
deadlines.
President Nixon signed NEPA into law, that great liberal,
on January 1, 1970, which passed the Congress with bipartisan
support. Among other things, NEPA requires that for proposals
for legislation and other major Federal actions significantly
affecting the quality of the human environment, Federal
agencies must prepare a detailed environmental review. NEPA
also created the Council on Environmental Quality which issued
regulations and guidance implementing NEPA. NEPA's purpose is
to provide a framework for wide-ranging input from all affected
interests when a Federal agency conducts an environmental
review of a proposed project.
I certainly appreciate Mr. Marino, my colleague, who
reached out to me on the floor whether changes could be made to
the RAPID Act which could earn my support and asked for my
support on the floor. I appreciated that, and I immediately
went to staff and sought out the possibly that I could do so.
And I do hope we can work together on future legislation.
But as this specific act, I continue to have concerns about
the fundamental structure of the bill based on our previous
consideration of this bill in the last Congress. And I hate to
see the record of Richard Nixon, which has been tarnished by
himself over the years, tarnished any more by this Congress.
As an initial matter, it is unclear to me why all of the
changes to our codifications of NEPA practice contemplated in
the RAPID Act belong in the APA. If the bill's proponents would
like to amend or add to NEPA's environmental requirements, go
ahead and amend NEPA. I am very wary of using the APA as a back
door way to amend other statutes or substantive law,
particularly those over which this Committee seems to lack
jurisdiction or substantive expertise, not that we do not have
expertise on other subjects, including the SEC, not to be
confused with the Securities and Exchange Commission. But we do
not with NEPA.
As I said earlier this week and have said many times
before, the APA is our administrative constitution. Like the
actual Constitution I would be very concerned about changing
it, only in most important times. Using the APA to amend other
statutes or substantive law simply by adding subchapters is not
the purpose or function of the APA and we ought to guard
against this temptation.
Another overreaching concern that I have is the RAPID Act
may be aimed at the wrong target. It is my understanding the
RAPID Act's purpose is to reduce delays in permitting or
project approval purportedly caused by the environmental review
process. As we learned in testimony from Dinah Bear who served
for 24 years under Republican and Democratic administrations as
General Counsel for the White House Council on Environmental
Quality, which oversees NEPA's implementation, most of the
delays in the process are not the result of NEPA. Specifically
Ms. Bear testified the principal causes of unjustified delay in
implementing the NEPA review process are inadequate agency
resources, inadequate training, inadequate leadership in
implementing conflict dispute resolution mechanisms, and lack
of coordination between Federal agencies and agencies at the
county, tribal, and State levels, including and particularly
coordinated single environmental review processes in cases
where governmental agencies at other levels have environmental
review procedures. Causes of justified delay include the
complexity of the proposed projects and associated impacts of
them, changes in the proposed project, the extent and nature of
public controversy, changes in budget and policy direction,
including directional oversight and new information.
To the extent that RAPID Act's proponents would like to
address unjustified causes of delay, their attention might be
better focused on addressing inadequate agency resources which,
I am sure, are being cut with the sequester, and other sources
of such delay that Ms. Bear outlined.
And to the extent that any delay in the environmental
review is justified, it would be inappropriate to short-circuit
the existing NEPA process.
Another broad concern with the bill is that it would
establish a separate environmental review process for Federal
construction projects. Here it is important to note that NEPA
applies to a broad range of Federal projects, not just
construction. For instance, NEPA can apply to hunting permits,
land management plans, hunting permits, guns--it might affect
guns--land management plans, military base realignment and
closure activities, and trout ESUs. The RAPID Act, however,
would only apply to a subset of the Federal projects, namely
construction activities, potentially adding further confusion
as to the fact that there is no definition of construction
activities in the bill. This could mean two different
environmental review processes would apply in the same project.
For example, the construction of a new nuclear reactor
could be a construction activity in the building phase, but may
not be with respect to the transportation of new or spent
nuclear fuel or any licensing required to operate a new
reactor. It is quite possible that two different review
processes could apply on the same project as a result.
These are some of the concerns, and there are many about
this bill that Ms. Bear raised last year and that Mr. Slesinger
will discuss in greater detail today.
In raising criticisms of the RAPID Act, I do not mean to
suggest we cannot seek common ground in some limited ways to
make the rulemaking process better for everyone. That is what
we should be doing in this Committee, in this Congress, and in
this world. But we do not seem to be doing that.
As with many of the other regulatory bills we have
considered so far, this bill makes a lot of sweeping changes to
current law, in this case substantive changes to a statute over
which we are not the Committee of jurisdiction, with which I
cannot be comfortable. And therefore, I cannot support the
bill.
I thank Mr. Marino very much for his concept, his reaching
out to me, and hope that we could find and can find--and with
the distinguished Chairman, who went to both Alabama and
Auburn, we can find common ground, and I am sure we will.
And I thank our witnesses. I look forward to their
testimony.
And further deponent sayeth not.
I yield back the remainder of my time.
Mr. Bachus. Thank you very much. We appreciate those
conciliatory remarks, Mr. Cohen.
And with that, we will recognize the sponsor of the
legislation, Mr. Marino, for his opening statement.
Mr. Marino. Thank you, Chairman.
And like President Nixon, another great liberal, my good
friend, Mr. Cohen, who I know down somewhere there is some
conservatism--I have traveled with him and I have sensed that--
I am sure that we will be able to reach an agreement on this
issue.
Let me preface by saying I live out in the country in rural
Pennsylvania. I am on about 10 acres. I get my water from a
well. I enjoy seeing the bear and the deer walk through my
front yard every day. I like going outside and breathing the
fresh air and making sure that my children and my land and my
constituents are protected. So there is no one, I don't think,
who has any greater passion for making sure that we have clean
air, clean water, and that our children are protected.
But with that, the American historical record has always
been, ``The worse the recession, the stronger the recovery.''
However, although the National Bureau of Economic Research
states the recession ended 4 years ago, I think we can agree
the recovery has been anything but strong. Besides losing
paychecks, millions of Americans have lost the dignity and
satisfaction that comes from earning a living and supporting a
family. No government benefit can compensate a person for that.
Americans are ready to work and employers are eager to
create jobs if government could just get out of the way. As we
will hear from the witnesses today, the job opportunities are
here on U.S. soil.
One of our witnesses today describes the U.S. Chamber's
study, Project No Project, which looked at the potential
economic impact of permitting challenges faced by U.S.
companies attempting to propose new energy projects. For
example, Penn-Mar Ethanol attempted to construct an ethanol
producing plant in Conoy Township, Pennsylvania. Neighboring
Hellam Township sent a letter to the Conoy Township board of
supervisors objecting to the ethanol plant. Hellam Township's
objections included environmental risk to the surrounding area
and a ``risk of causing the beautiful area surrounding the
Susquehanna River to become an undesirable sight.'' Is that
what we mean when we talk about negative environmental impact?
An obstructed scenic view?
Certainly job creators cannot be effective in creating jobs
under such an over-expansive, extreme regime.
After hearing about the numerous projects currently
awaiting approval in the testimony today, many of us might be
asking ourselves ``if the workers are here and the jobs are
here, then what is keeping American workers idle.''
Well, I will tell you. It is our outdated, burdensome,
convoluted Federal permitting process that has become a hotbed
for the environmental extremists looking to hold up
infrastructure building and growth that our country so
desperately needs.
The National Environmental Policy Act of 1969 serves worthy
goals which should be preserved. Federal agencies should have
an awareness of how their actions affect the environment, and
this decision-making process should be transparent to the
public. It seems the Administration, the President's Council on
Jobs and Competitiveness, and legislation adopted by our strong
bipartisan majority in our 109th and 112th Congresses all
recognize that an overly burdensome and lengthy environmental
review and permitting process undermines economic growth.
My bill, the RAPID Act of 2013, aims to restore the balance
between thorough analysis and timely decision-making in the
Federal permitting process. It does not seek to force agencies
to approve more or fewer permit applications. It simply says be
transparent. Put one agency in charge. Follow a rational--a
rational--process and approve or deny the project in a
reasonable amount of time. Then get out of the way.
Job creators and workers alike deserve to know that a fair
decision will be made by a date certain. When a project gets
stuck in limbo, companies spend their resources on lawyers
instead of using their budget to hire new employees.
The RAPID Act is modeled on existing National Environmental
Policy Act, NEPA, regulations and guidance, including guidance
from this Administration issued to the agency heads, as well as
recommendations from the President's own Job Council and
regulatory reforms adopted with broad bipartisan support in the
109th and 112th bodies of Congress. Americans are ready to get
back to work. The RAPID Act of 2013 will remove the red tape
and allow job creators to take projects off the drawing board
and on to the work site.
In closing, I want to thank my cosponsors, Chairman Bachus,
Mr. Coble, Mr. Smith, Mr. Franks, and Mr. Amodei, for their
support. Thanks especially to Mr. Bachus for calling this
hearing and giving us the opportunity to bring this issue to
light.
I would also like to thank our witnesses for attending and
sharing their valuable expertise with us. I look forward to a
lively debate.
And I reserve the balance of my time. Thank you.
Mr. Bachus. Thank you, Mr. Marino.
At this time, I would ask unanimous consent to introduce
for the record the statements of both the Chairman of the full
Committee and the Ranking Member, Congressman Goodlatte and
Congressman Conyers, into the record.
[The prepared statement of Mr. Goodlatte follows:]
Prepared Statement of the Honorable Bob Goodlatte, a Representative in
Congress from the State of Virginia, and Chairman, Committee on the
Judiciary
Over 4 years into nominal recovery, America's economy remains far
too weak, and America's workers have far too few jobs.
The June jobs report showed an increase of 240,000 in the number of
discouraged workers--those who have simply quit looking for a job out
of frustration or despair. The number of people working part-time--but
who really want full-time work--passed 8.2 million. That represents a
jump of 322,000 in just one month.
Worst of all, the truest measure of unemployment--the rate that
includes both discouraged workers and those who cannot find a full-time
job--continues to exceed 20 million Americans. And that rate rose from
13.8% back to 14.3% in June.
In the wake of this bad news, I cannot thank Mr. Marino enough for
reintroducing the RAPID Act. This legislation represents one of the
most important things Congress can do to stimulate the job creation
that America's workers desperately need.
The federal government's outdated and overly burdensome
environmental review process keeps jobs and workers waiting for
approval from Washington's government agencies for far too long.
A recent study by the U.S. Chamber of Commerce identified 351
proposed energy projects that, if approved, could generate up to two
million jobs annually.
Yet these projects and others like them are held up by an
environmental review process that takes years, sometimes more than a
decade, to reach a conclusion. The National Environmental Policy Act
(NEPA) of 1969, under which this process takes place, serves important
goals, which should be preserved. But the NEPA process today does not
resemble what its authors envisioned.
Because there are no mandatory deadlines for NEPA review,
investment capital is tied up indefinitely or until it finally goes
away, while the bureaucratic review process grinds on. A 2008 study
found that federal agencies take nearly 3\1/2\ years on average to
complete an environmental impact statement.
Incredibly, in the midst of the Nation's historic economic
difficulties, that length of time is increasing.
In addition, agencies can deny permit applications based on ``new
information'' not to be found in the environmental study documents--and
perhaps provided by a special interest group that opposes the project
altogether.
Making matters worse, after bureaucratic review is finished, a
whole new cycle of frustration begins. That is the cycle of litigation
that sprawls out under the 6-year statute of limitations applicable to
permit challenges. The fear of a lawsuit filed up to 6 years after a
permit is granted, alleging that some portion of environmental review
was defective, further discourages projects from moving forward.
The Empire State Building, the Hoover Dam, the Pentagon, and even
the New Jersey Turnpike were built in less than 6 years. Surely
litigants can prepare and file lawsuits in less time as well.
Navigating this endless review-and-litigation process can cost job
creators millions of dollars when they need to hire consultants and
lawyers. But the cost to the economy is exponentially greater.
The key is finding the right balance between economic progress and
the proper level of analysis. The RAPID Act strikes this balance. It
does not force agencies to approve or deny any projects. It simply
ensures that the process agencies use to make permit decisions--and the
timeline for subsequent litigation--are transparent, logical and
efficient.
To do that, the RAPID Act draws upon established definitions and
concepts from existing NEPA regulations. It also draws on common-sense
suggestions from across the political spectrum--including from the
President's Jobs Council and the Administration's Council on
Environmental Quality.
In many respects, the bill is modeled on the permit streamlining
sections of Congress' SAFETEA-LU and MAP-21 transportation legislation,
which commanded bipartisan support. A study by the Federal Highway
Administration found that this legislation has cut the time for
completing an environmental impact statement nearly in half.
I urge my colleagues to support the RAPID Act and cut down the time
it takes America's workers to see a real Jobs Recovery.
__________
[The prepared statement of Mr. Conyers follows:]
Prepared Statement of the Honorable John Conyers, Jr., a Representative
in Congress from the State of Michigan, and Ranking Member, Committee
on the Judiciary
The title of bill that is the subject of today's hearing, namely--
the ``Responsibly and Professionally Invigorating Development Act of
2013''--is unfortunately very misleading.
Rather than effectuating real reforms to the process by which
federal agencies undertake environmental impact reviews as required by
the National Environmental Policy Act, or NEPA, this legislation will
actually result in making this process less responsible, less
professional, and less accountable.
Worse yet, this measure could jeopardize public health and safety
by prioritizing speed over meaningful analysis.
To begin with, the bill--under the guise of streamlining the
approval process--forecloses potentially critical input from federal,
state and local agencies and other interested parties for construction
projects that are federally-funded or that require federal approval.
As a result, this measure could allow projects to proceed that put
public health and safety at risk.
For example, as Mr. Slesinger aptly explains in his prepared
testimony for today's hearing, this bill could effectively prevent the
Nuclear Regulatory Commission from exercising its licensing authority
pertaining to nuclear power reactors, waste management sites, and
nuclear waste disposal facilities.
This measure could even allow such projects to be approved before
the safety review is completed.
This failing of the bill, along with many others, explains why the
Administration and the President's Council on Environmental Quality,
along with 25 respected environmental groups, including the Audubon
Society, League of Conservation Voters, Natural Resources Defense
Council, Sierra Club, and The Wilderness Society, vigorously opposed
this bill's predecessor in the last Congress.
In issuing its veto threat regarding that prior measure, the
Administration noted, for example, that the bill ``would create
excessively complex permitting processes that would hamper economic
growth.''
Another concern that I have with this bill--like other measures
that we have considered--is that it is a solution in search of a
problem.
And, that is just not my opinion. The nonpartisan Congressional
Research Service issued a report last year stating that the primary
source of approval delays for construction projects ``are more often
tied to local/state and project-specific factors, primarily local/state
agency priorities, project funding levels, local opposition to a
project, project complexity, or late changes in project scope.''
CRS further notes that project delays based on environmental
requirements stem not from NEPA, but from ``laws other than NEPA.''
So I have to ask, why do we need a bill such as the so-called RAPID
Act that will undoubtedly make the process less clear and less
protective of public health and safety?
My final major concern with this bill is that it is a thinly
disguised effort to shift power away from governmental agencies that
are accountable to the public and to instead give greater control to
politically unaccountable industry so that it can run roughshod over
everyone else.
This general tack is highlighted by a number of the bill's
provisions.
For example, the bill limits the opportunity for public
participation and imposes deadlines that may be unrealistic under
certain circumstances.
In addition, the bill creates a separate, but only partly parallel
environmental review process for construction projects that will only
cause confusion, delay, and litigation.
As I noted at the outset, the changes to the NEPA review process
contemplated by this measure apply only to proposed federal
construction projects.
NEPA, however, applies to a broad panoply of federal actions,
including fishing, hunting, and grazing permits, land management plans,
Base Realignment and Closure activities, and treaties.
In contrast, the bill applies only to a subset of federal
activities. In fact, even this subset is ill-defined under the measure
as it fails to define what actually would constitute a construction
project.
This could lead to two different environmental review processes for
the same project. For instance, the bill's requirements would apply to
the construction of a nuclear reactor, but not to its decommissioning
or to the transportation and storage of its spent fuel.
Rather than streamlining the NEPA process, this bill only adds
complication, confusion, and potential litigation to the process.
But, more importantly, this bill is yet another effort by my
friends on the other side of the aisle to undermine regulatory
protections.
As with all the other bills, this measure is a thinly disguised
effort to hobble the ability of federal agencies to be able to do the
work that we in Congress have assigned them to do.
__________
Mr. Bachus. And with that, we have a very distinguished
group of panelists, and I would like to start by introducing
them to the Committee.
Bill Kovacs, who is no stranger to our Committee, provides
the overall direction, strategy, and management for the
Environmental, Technological, and Regulatory Affairs Division
of the U.S. Chamber. Since he joined the Chamber in March 1998,
he has transformed a small division concentrating on a handful
of issues in committee meetings into one of the most
significant in the organization. His division initiates and
leads national issue campaigns on energy legislation, complex
environmental rulemaking, telecommunications reform, emerging
technologies, and applying sound science to Federal regulatory
processes.
Mr. Kovacs previously served as chief counsel and staff
director with the House Subcommittee on Transportation and
Commerce.
He earned his J.D. from Ohio State University College of
Law and bachelor of science degree from the University of
Scranton, magna cum laude.
Welcome, Mr. Kovacs.
Mr. Dennis Duffy, we welcome you. He is the Vice President
of Energy Management, Incorporated, a leading developer of
traditional renewable energy projects. Prior to joining EMI,
Mr. Duffy was a partner of the law firm of Partridge, Snow &
Hahn, and he was chairman of the firm's public utilities
practice group. Where? Was that in Boston?
Mr. Duffy. Boston, yes, sir.
Mr. Bachus. Mr. Duffy served as special counsel to the
Rhode Island Energy Facilitates siting board and the Rhode
Island Partnership for Science and Technology. He was also a
member of the Northeast Roundtable of the NEPA Task Force.
He has been an adjunct professor of law at Boston College
Law School since 2010.
He received his B.A. in history from the University of
Rhode Island and his J.D. from Columbia University Law School.
Mr. Scott Slesinger is the Legislative Director of the
National Resources Defense Council, and we welcome you back to
the Committee again. In his capacity, he works with the NRDC
staff to develop strategies for advancing environmental
legislation.
Prior to joining NRDC, Mr. Slesinger served as Vice
President for Governmental Affairs at the Environmental
Technology Council, an industry trade association that
represents companies that recycle, destroy, or dispose of
hazardous waste.
Mr. Slesinger also worked at EPA's Office of Legislative
Analysis. Additionally, he served in the offices of
Representative Henry Nowak of New York and the late Senator
Frank Lautenberg of New Jersey. So I am sure you were saddened
by his death, but we lost a great statesman.
He earned his undergraduate and law degrees at the State
University of Buffalo. And you did not freeze to death while
you were getting those degrees.
Mr. Slesinger. No. It is getting warmer.
Mr. Bachus. Is it? [Laughter.]
It is.
Mr. Nick Ivanoff is President and CEO of Ammann & Whitney,
an architecture and engineering firm headquartered in New York
City. In this capacity, Mr. Ivanoff has technical, marketing,
administrative, and financial responsibility for company
operations worldwide.
Mr. Ivanoff is currently First Vice Chairman and Executive
Committee Member serving on the board of directors and Chairman
of the International Affairs Advisory Council for the American
Road & Transportation Builders Association, a trade association
with more than 5,000 members which advocates strong investment
in transportation infrastructure.
Now, I will tell you just an aside. Chairman Bill Shuster
gave a speech yesterday morning calling for greater
infrastructure spending across the board. And if you travel to
countries like China, Singapore, or anywhere, you come back
here and you realize that we are behind. You cannot have a
leading Nation in the world with a third world infrastructure.
Mr. Ivanoff is a registered professional engineer and
professional planner with 39 years of experience. He received
his B.S. in civil engineering and M.S. in traffic engineering
and transportation planning from the Polytechnic Institute of
Brooklyn.
We welcome you.
And with that, Mr. Kovacs, we will proceed from my left to
right with your opening statements in 5 or so minutes. We do
not stop people exactly on the clock. So if you have got 6
minutes of things you need to say, say them.
TESTIMONY OF WILLIAM K. KOVACS, SENIOR VICE PRESIDENT,
ENVIRONMENT, TECHNOLOGY & REGULATORY AFFAIRS, U.S. CHAMBER OF
COMMERCE
Mr. Kovacs. Mr. Chairman, Ranking Member Cohen, and Members
of the Committee, thank you very much for asking me to testify
today on the Responsibly and Professionally Invigorating
Development Act of 2013, commonly referred to as RAPID.
The RAPID Act continues a long line of bipartisan efforts
by Congress, the President, and a few States to streamline the
Nation's permitting process. A few examples include the
President's asserted leadership on the role of permit
streamlining in his State of the Union Address, his May and
June 2013 presidential memoranda on streamlining permits on
infrastructure projects, and his March and June executive
orders on improving performance of Federal permitting on
infrastructure projects.
Congress is not to be left behind. Congress has taken a
leadership role in a bipartisan way on the enactment of permit
streamlining provisions in the American Recovery and Investment
Act, SAFETEA-LU, and MAP-21, and most recently the Senate on
WRDA. The Governors of California and Minnesota are also
promoting permit streamlining to expedite infrastructure
projects and job creation.
The RAPID Act--and this is so important--is modeled after
SAFETEA-LU and MAP-21, which addressed the long administrative
delays in completing permit reviews for transportation
projects. Both were passed by large bipartisan majorities in
both houses of Congress and both signed by the President. By
adopting the common sense approach that is in these bills, the
RAPID Act merely imposes a common sense management process on
Federal agencies that will make a huge difference in building
projects and creating jobs, and it does this in three ways.
One, it is literally all procedural. It requires a Federal
lead agency to coordinate and manage the environmental review
process within specified time periods.
Two, it requires concurrent rather than sequential review.
And three, it establishes a 6-month statute of limitations
rather than a 6-year one. And this 6-month statute of
limitations is literally 4 months longer than the statute of
limitations for challenging any other administrative action
under the Administrative Procedure Act, and it is the same time
limit as in SAFETEA-LU, and MAP-21 is only 5 months.
These very simple procedural changes will help our country
create millions of jobs by getting rid of excess administrative
delays. It does not go into what the outcome is or what the
substance of any of the environmental laws are.
Let me provide a clear illustration of the impact on jobs
in the economy. A few years ago, the Chamber undertook a study
called Project No Project which identified 351 electric
generating and transmission projects around the United States
that were seeking permits but could not secure a permit to
begin construction. The most surprising aspect of our study was
the fact that on renewable projects, there were 140 renewable
projects seeking a permit and not being able to get it, and
only 111 coal-fired power plants.
And the main finding was that the opponents of these
projects--and I think some of this you can address in the bill
and some of it you cannot--brought a series of administrative
and legal challenges at the local, State, and Federal level
against the projects, causing such long delay that usually the
project sponsor either lost financing or literally abandoned
the project or moved the project to some other locality.
Often many of these same groups that are arguing before
this Congress to think globally about renewable fuels and
renewable energy are acting locally to stop these projects. And
that is what the 140 were all about, stopping them.
The Chamber believes that the approach taken by RAPID will
great accelerate the administrative permitting process, thereby
allowing projects to be built and jobs to be created. The best
illustration--and we know that it works--is the study that the
Federal Highway Administration did of the SAFETEA-LU
requirements in 2010, and they found that just through the use
of the SAFETEA-LU process, the time cut for granting a permit
dropped in half from 73 months to 37 months.
RAPID is a common sense solution to a broken administrative
process. Congress has it in its power to fix it. They fixed it
in several other ways in a bipartisan fashion. The President
has very clearly gotten behind permit streamlining. And so this
is one issue where I hope at some point in time we all can work
together because I think whether or not the bill stays in
exactly the form it is in, the fact is that we have to do
something to break the logjam and the time delays.
Thank you very much.
[The prepared statement of Mr. Kovacs follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. Bachus. Mr. Duffy?
TESTIMONY OF DENNIS J. DUFFY, VICE PRESIDENT
AND COUNSEL, CAPE WIND ASSOCIATES, LLC
Mr. Duffy. Good morning. My name is Dennis Duffy, Vice
President of Cape Wind Associates, LLC. For the past 12 years,
Cape Wind has been developing the Nation's first offshore
generation project at an expense in private capital now
exceeding $50 million.
Cape Wind enjoys strong support of environmental, consumer
advocacy, and labor groups and the overwhelming majority of
Massachusetts voters. However, there is strong opposition
funded primarily by a few wealthy landowners who may be able,
on clear days, to see the project off on the horizon.
The principals of our company have been in the business of
developing and operating energy infrastructure projects for
more than 30 years. We have developed and operated some of the
most efficient natural gas-fired plants operating in the United
States, as well as the Nation's two largest biomass plants and
New England's largest solar generation project. We are, thus,
intimately familiar with the Federal and State licensing
processes for major energy projects.
Offshore wind technology has now advanced to the point
where it is both proven and reliable and can play a much more
meaningful role in our national supply mix, and we undertook
this project in specific response to policy directives from the
Commonwealth of Massachusetts. However, if we are to realize
the potential of these new energy resources, we need to ensure
that our national energy and environmental policies are
implemented in a consistent and timely manner. We know that
this technology works. Although Cape Wind will be the first
offshore wind farm in the United States, 55 such projects are
already operating successfully in Europe, and the Chinese,
after having started well after us, already have projects in
service.
One fundamental challenge to the development of energy
projects is the lack of any limitation on the duration of the
Federal review periods. As a result, with no required endpoint,
opponents can use regulatory stalling and delay tactics to try
to financially cripple even a project that meets all statutory
standards and serves Federal and State policy objectives.
Indeed, the chairman of our opponents' group recently admitted
in the press that his strategy is one of ``delay, delay,
delay.''
Cape Wind submitted its Federal permit application to the
U.S. Army Corps of Engineers in 2001. The BOEM issued a highly
positive and 5,000-page environmental impact statement in 2009,
and Secretary Salazar then issued the first lease for an
offshore wind farm to Cape Wind in 2010 and approved our
construction and operation plan in 2011. The project has been
undergoing extensive regulatory and public scrutiny for more
than 12 years and has now received all major permits and
approvals. It also now has entered into two long-term contracts
with major utilities, which have been approved by the
Massachusetts Department of Public Utilities as cost effective
and in the public interest.
The NEPA review of Cape Wind's application was a process
that included the active participation of 17 Federal and State
participating agencies and afforded exceptional opportunities
for public involvement. In addition, there has been extensive
State regulatory review. After an exhaustive process, including
20 days of expert testimony, the Massachusetts Siting Board
approved Cape Wind's petition. In addition, the Massachusetts
Department of Public Utilities approved Cape Wind's long-term
sales agreement on a finding that it was cost effective and in
the public interest.
Still at this juncture, the project is facing appeals. In
response, I would like to make three specific policy
recommendations.
First, limit the time period for agency review. National
policy objectives would be far better served if environmental
review of renewable facilities were conducted on a fixed
timeline. We reference, for example, for your consideration the
energy facilities siting acts of several of the New England
States which provide a thorough environmental review of energy
facilities within a statutorily limited time frame. In
particular, the Massachusetts Siting Act limits the review
period to 12 months from the date of filing an application. The
Massachusetts act was adopted in 1973 on a bipartisan basis and
has withstood the test of time.
Secondly, we would encourage the consolidation and
expedition of judicial review. And as noted in my testimony,
there are several recent examples--this has been done in the
Congress--for the Alaska Natural Gas Pipeline Act, as well as
for offshore natural gas facilities. And I note in this regard
that the Massachusetts siting statute also provides for an
appeal of any Siting Board decision directly to the
Commonwealth's highest court and that the appeals must be
brought within 20 days to expedite a final resolution. Further,
the Siting Act allows the board to grant a consolidated
approval in lieu of any other State or local approvals that
would otherwise be required, in a sense one-stop shopping, in
which case the project would face only one consolidated appeal
taken directly to the State's highest court.
If the Nation is to encourage development of new resources,
streamlining the administrative and judicial review process
would be a most effective mechanism for getting facilities on
line and it could be done without modifying any substantive
right of review by any aggrieved party.
Thank you.
[The prepared statement of Mr. Duffy follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. Bachus. Thank you very much, Mr. Duffy, for your
outstanding testimony.
Mr. Slesinger?
TESTIMONY OF SCOTT SLESINGER, LEGISLATIVE DIRECTOR, NATURAL
RESOURCES DEFENSE COUNCIL
Mr. Slesinger. Thank you, Mr. Chairman, Members of the
Committee. Thank you for the opportunity to testify today. My
name is Scott Slesinger and I am the Legislative Director of
the Natural Resources Defense Council. NRDC is a nonprofit
organization of scientists, lawyers, and environmental
specialists dedicated to protecting public health and the
environment.
Many of the problems the environmental community sees with
this bill were detailed by Dinah Bear in her testimony on a
similar bill last year. I have attached her testimony as her
comments are just as relevant this year.
I will limit my testimony to some major points, address
some of the myths surrounding NEPA, and leave comments on
specific provisions from my written testimony and the Bear
attachment.
But I must highlight one provision discussed on page 6 of
my written testimony. That provision automatically approves all
permits and licenses, including those under the Atomic Energy
Act, if an agency fails to meet the deadlines placed in this
bill. This provision prioritizes an artificial timeline over
the concerns of Americans that the Government properly regulate
the safety of nuclear power plants. We believe this provision's
impact on the Atomic Energy Act and permits required under the
Clean Air and Clean Water Act is a giant step too far.
I would like the Committee to appreciate why we have NEPA
and why it is so important. With an emphasis on ``Smart from
the Start'' Federal decision-making, NEPA protects our health,
our homes, and our environment. The law was prompted in part by
concerns from communities whose members felt that their views
had been ignored in setting rules for the Interstate Highway
Commission in the 1950's. When the Federal Government
undertakes a major project, such as constructing a dam, a major
highway, a power plant, or if a private entity uses a permit so
it can pollute the air and water, we must ensure that the
project's impacts, environmental and otherwise, are considered
and disclosed to the public. And because informed public
engagement often produces ideas, information, and solutions
that the Government might otherwise overlook, NEPA has led to
better decisions and better outcomes. The NEPA process has
saved money, time, lives, historical sites, endangered species,
and public lands while encouraging compromise and cultivating
better projects with more public support. Our Web site
highlights NEPA's success stories that prove this point.
But when projects are unique, such as Cape Wind, a project
NRDC supports, or if a project has well-funded opposition, such
as Cape Wind, the process can be significantly delayed. But
NEPA is not the cause of the delays this bill attempts to
address.
What are the causes of delay? Most delays in Corps of
Engineers projects is not NEPA. It is lack of funding. For
instance, the Corps is funded in the House appropriations this
year at $4.6 billion, but their backlog of congressionally
approved projects is about $60 billion. And this year's Senate
bill authorizes $12 billion more. When speaking to project
sponsors, it has been very easy to blame delays on rules and
regulations, environmentalists, and NEPA, but the real delay is
more likely inadequate funding for projects that have been
authorized.
Recent investigations by the Congressional Research Service
addressing transportation projects makes a similar point, and I
quote, ``Causes of delay that have been identified are more
often tied to local, State, and project-specific factors,
primarily local and State agency priorities, project funding
levels, local opposition to a project, project complexity, or
late changes in project scope.''
The Chamber of Commerce Web site that Mr. Kovacs just
mentioned, Project No Project, bears this out. The report
offers evidence in support of amending NEPA but actually
includes very few stories that implicate NEPA as the cause of
project cancelation or even delay. Far more often than not the
cases on their Web site attribute delay and cancelations
directly to State regulatory hiccups, county ordinances, State
government veto threats, local zoning issues, and financing
problems that are not part of the NEPA process. In short, the
problem is NIMBY not NEPA.
NEPA is an important statute that is made incredibly
complicated by this bill. This bill would overturn or conflict
with many provisions adopted in MAP-21. Additionally, this bill
would apply to the existing and contradictory requirements in
the National Environmental Policy Act that is now not part of
the APA, complicating the process and likely leading to delays,
litigation, and uncertainty. And many of the provisions, as
discussed in my written testimony, highlight impacts that are
far-reaching and probably unintended.
On Tuesday, Members of this Subcommittee heard from my
colleague, David Goldston, regarding the Regulatory
Accountability Act. In that bill, the intent is to slow down
the regulatory process. The RAPID Act is essentially the
opposite of the RAA. In the RAA, the number of alternatives to
consider are multiplied and the grounds for appeal are
increased. Additional analysis of impacts are required, making
the implementations of the country's laws passed by Congress
much more difficult if not impossible to implement.
This bill is the opposite. Alternatives are limited.
Deadlines force action or are defaulting to moving forward.
Because permit approvals and EIS's are thought to delay
construction projects, the RAPID Act makes it more likely that
ill-conceived projects and unnecessarily expensive projects
will move forward without a balance between the bias of the
lead agency and those affected by the project. We believe those
costs are just too high.
Thank you very much.
[The prepared statement of Mr. Slesinger follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. Bachus. Thank you. And for the record, you had attached
Ms. Bear's statement.
Mr. Slesinger. Yes.
Mr. Bachus. But it does not identify her as who the
statement is from. So I am going to, for the record, this is a
statement attached to your testimony as Ms. Dinah Bear.
Mr. Slesinger. Thank you, Mr. Chairman.
Mr. Bachus. Thank you.
Now, at this time, Mr. Ivanoff, you are recognized.
TESTIMONY OF NICK IVANOFF, PRESIDENT & CEO, AMMANN & WHITNEY,
ON BEHALF OF AMERICAN ROAD & TRANSPORTATION BUILDERS
ASSOCIATION (ARTBA)
Mr. Ivanoff. Thank you.
Chairman Bachus, Representative Cohen, Members of the
Subcommittee, I am Nick Ivanoff, President of Amman & Whitney
out of New York. I am here today on behalf of the American Road
& Transportation Builders Association where I currently serve
as First Vice Chairman.
ARTBA, now in its 111th year of service, represents all
sectors of the U.S. transportation construction industry, which
sustains more than 3.3 million American jobs. Our industry
directly navigates the Federal regulatory process to deliver
new transportation projects and improvements to existing
infrastructure. As such, we have firsthand knowledge about
specific regulatory review processes and burdens that can and
should be alleviated.
Every reauthorization of the surface transportation program
since 1998 has featured reforms to the transportation project
review and approval process as a major bipartisan objective.
These measures provide valuable insight into the successes and
failures of legislative efforts to reduce delay in the delivery
of needed transportation projects without sacrificing
regulatory safeguards.
Today's hearing focuses on the RAPID Act, which seeks to
take some of the reforms from recent surface transportation
bills and expand their use to other areas of Federal
responsibility. According to a report by the U.S. Government
Accountability Office, prior to the enactment of MAP-21, it
took as many as 200 major steps and 19 years to deliver a new,
major federally funded highway project. These delays are not
only an inefficient use of Federal resources, but also deny the
American people mobility and safety enhancements and stifle job
growth and economic expansion.
Reducing the amount of time it takes to deliver
transportation improvements was first addressed in the 1998
TEA-21 bill. This legislation concentrated on establishing
concurrent, as opposed to sequential, project reviews by
different Federal agencies. While this improvement was a step
in the right direction, it had limited impact as concurrent
reviews were discretionary rather than mandatory.
The 2005 SAFETEA-LU saw the introduction of lead agency
status for the U.S. Department of Transportation on project
reviews. Lead agency is an important mechanism for improving
the project delivery process as it gave DOT a means to request
action by non-transportation agencies. The measure also
included limitation on when lawsuits can be filed against
projects. The combination of these two reforms created new
levels of predictability for project review schedules and
provided opportunities to shorten the approval process for
needed transportation improvements.
There is, however, a clear lesson from 1998 and 2005.
Simply giving Federal agencies the ability to complete
regulatory reviews in a more efficient manner in no way
guarantees that authority would be utilized. For this reason,
subsequent reform efforts focused on not just providing
additional tools to reduce delay but also creating mechanisms
to ensure or at least encourage the use of those tools.
Last year's MAP-21 took project delivery reform even
further. In addition to building upon the concept of lead
agency, MAP-21 also includes specific mandatory deadlines for
permitting decisions with financial penalties for agencies that
do not meet those deadlines. In addition, MAP-21 creates
multiple new classes of categorical exclusions, allowing
projects with minimal environmental impacts to avoid
unnecessary multiyear reviews.
While MAP-21 represents an unprecedented and comprehensive
approach to reforming the transportation project delivery
process, that does not mean ARTBA will stop looking to further
reform and ensure that transportation improvements are advanced
as efficiently as possible. Reforming the environmental review
process for transportation projects has been a 15-year
evolution that has provided important lessons about what works
and what does not work in this area.
Mr. Chairman, Representative Cohen, ARTBA appreciates the
opportunity to be part of today's discussion and we certainly
look forward to answering any of your questions. Thank you very
much.
[The prepared statement of Mr. Ivanoff follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. Bachus. Thank you very much, Mr. Ivanoff.
At this time, I am going to recognize the sponsor of this
legislation for questions, the gentleman from Pennsylvania, Mr.
Marino.
Mr. Marino. Thank you, Chairman.
And again, good morning, gentlemen.
Mr. Slesinger, I would like to begin with you, please. In
March last year, the President issued an executive order
directing agencies to, quote, ramp up efforts to improve the
Federal permitting process by, among other things, reducing the
amount of time required to make permitting and review
decisions. And more recently on May 17 of this year, the White
House press release, streamlining the process will mean the
U.S. can start construction sooner, create jobs earlier, and
fix our Nation's infrastructure faster.
Do you agree with the President's proposal here?
Mr. Slesinger. I think the President's proposal went
forward. I think because of his statement and other things,
more people, more staff were working on some of these reports
that made them done faster, which is important.
Mr. Marino. But we have seen no results yet of that. We
have seen no job increases because of this.
Mr. Slesinger. I do not think that is the case.
Mr. Marino. I do think it is the case. It is the jobs. This
is an Administration that says jobs are the issue.
And the red tape that I see taking place--you have worked
in Government your entire life. You have a distinguished
career. I was in industry for 13 years in factories working,
building them, started there sweeping the floors until I put
myself through college and law school. I saw what red tape does
to jobs, infrastructure. When people come in with a little
authority, a bureaucrat, and ask--we are going to shut you down
for this reason. Why? It is not logical. And the response is
because I have the power. I can.
When roofers in my district--OSHA comes through and a young
person just out of college sites them and shuts them down and
said what did we do. Well, our instruction is to find as many
construction crews as possible.
When I hear of delays from 7 to 10 to 12 years before
permitting can be put through for sewer systems and water
systems, and you think that is efficient? You said that this
legislation is not efficient. Well, I can assure you when this
legislation is passed, it will submit these permits, approve
them, done in the proper manner a lot faster than 7 and 9 and
10 years.
Mr. Slesinger. I think the reports the GAO has recently
done has shown, for instance, that wind and solar permitting
has been shortened by about 40 percent in its permitting.
But I think you will find that if you check in
Pennsylvania, if you go to the Chamber Web site of Project No
Project, you will see most of the delays in Pennsylvania are
not NEPA. It is permitting. It is zoning restrictions. It is
opposition that is separate from the Federal NEPA process.
Mr. Marino. I understand what you are saying there, sir. I
understand what you are saying. But don't you think it is
logical to have an entity, a gatekeeper keep the bureaucratic
system, whether it is in the Federal, State, or local
government, on a timetable instead of one entity who has
nothing to do with another entity says that I do not like the
report from that agency, so I am stopping it and we go back to
zero.
What is wrong with having an entity say, okay, agency, you
have this amount of time? If you have any issues, get to work
on it. And with bureaucrats that I have seen--I was a
prosecutor for 18 years. I saw it in all forms of government.
It is just blatant here in D.C. where the bureaucrat will say I
will get to it when I get to it. If they had to work on an
assembly line, they would be out of a job.
Mr. Slesinger. Under the current CEQ regulations, project
sponsors are able to ask for and get timelines, and in 25 years
of those regulations, I do not believe there is any case where
the timeline was not agreed to by CEQ usually along what the
project sponsor wants. But the key again, as you will see when
you look at the cases in the Chamber Web site, it is other
issues. It is the financing. It is the local opposition and
zoning and the local politicians for various reasons----
Mr. Marino. Well, then that should be part of an overall
gatekeeping process. You say that a lot of it is because of
sequestration. I am really tired of hearing about the
sequestration because we have seen what a farce it is so far.
And let me give you an example of that in my building, right in
the Cannon Building where they are locking doors and they
cannot have guards there. Where they normally have two, well,
they locked half the doors. Now there are four guards at an
exit.
So, come on. Let's call it what it is. We have a situation
where things move at a glacial pace. And I hear from my
constituents constantly that if we could just eliminate this
red tape, if we could just eliminate all the agencies that
duplicate the services and really have no experience out in the
field.
So you are saying you do not agree that we can make this
more efficient and more effective?
Mr. Slesinger. We can make it more efficient. We can make
it more effective. But to really do that, we are going to have
to change the federalist system and give a gatekeeper----
Mr. Marino. That is the first thing we agree with, sir.
Change the Federal system. And you know something? You are a
very intelligent man. I respect your credentials, and I think
you have a lot to offer here. And I am extending my hand, as I
do to my friend on the other side of the aisle. Give me some
suggestions. Let's talk about how we improve efficiency. If we
improve efficiency, it is going to create jobs. We create jobs.
It is going to get us out of this $17 trillion of debt. Do you
agree with me, sir?
Mr. Slesinger. I think we can. I think, though, we must
remember particularly in NEPA, as Mr. Ivanoff has said, we have
been making changes every single year. Let's see how those work
before we now duplicate, as unfortunately your bill does----
Mr. Marino. Duplicate? You are telling me about
duplication. I would love you to come in my office and see the
stacks of information and regulatory agencies and laws that are
not only duplicated but triplicated and 14 other different
ways. The left hand does not know what the right hand is doing.
And the people that are out in the field making these
decisions--they do not have the experience, and they do not
know what it is like to create a job and they do not know what
it is like until it affects them personally when they decide to
get out of the government work and get into private enterprise.
And I have a couple of friends that have done that, and they
will say to me, you know something, Tom, a couple years ago you
and I did not agree when I was with the government at a State
level. But now I am with industry and I see the problem. Let's
work on that.
Mr. Slesinger. I would just point out if your bill passed
and Mr. Ivanoff tried to do an EIS, he would have three
conflicting laws to have to look at: NEPA under the APA, NEPA
under the regular National Environmental Policy Act, and the
requirements now under MAP-21.
Mr. Marino. Well, then let's focus on how to deal with that
issue as well. I do not know it all. I will be the first one to
admit that. But this is a beginning, and we have to start doing
something now. This country cannot afford to continue to have
roadblocks and obstacles put up by people who, number one, do
not know what they are doing, people in the bureaucracy who
really do not know what it is like to put a 40- or 50-hour week
in a factory and they have no ideas of what it is like to be an
entrepreneur to go out and create jobs that are blocked because
of unreasonable red tape and inefficient and inexperienced
people.
I do not know what my time is now, but I am pretty sure I
am over it. So I look forward, sir, to working with you and
taking advantage of your talent and experience, along with
anyone else and certainly Mr. Cohen, my friend on the other
side. So I thank you. I yield back.
Mr. Goodlatte [presiding]. We thank the gentleman.
The Chair now recognizes the gentleman from Tennessee, Mr.
Cohen, for his questions.
Mr. Cohen. Thank you, Mr. Chair.
And Mr. Marino, my home is on 10 acres, but within 10
acres, very close, I have bear also. I live right near the zoo.
[Laughter.]
Well, mine come up on the porch, and they are fat and they
are healthy.
Mr. Cohen. I used to have dreams, when I was a child, about
that, but it never happened thankfully.
Mr. Slesinger, do you and Mr. Kovacs ever talk? Do you and
Mr. Kovacs--do you all talk?
Mr. Slesinger. We did before when I worked at the
Environmental Technology Council and I represented an industry
association.
Mr. Cohen. Mr. Kovacs, do you think it would be a good idea
if you all talked and maybe found some--I would love to have
common ground where Mr. Marino and I could get something and we
could make our economy----
Mr. Kovacs. I would be very appreciative to talk to Scott,
very appreciative.
Mr. Cohen. Are there places you think that you and he could
agree to a way to speed up the process?
Mr. Kovacs. I am sure there are and I hope there are.
The one thing I would like to just reassure you and Mr.
Slesinger--nothing in this bill--this bill is strictly
procedural. Nothing affects the underlying substance of NEPA at
all. And I think that is one of the confusions that has been
here. I think the Committee--whoever drafted the bill for the
Committee did a very good job of staying out of the substance.
And the point of having multiple agencies involved, in other
words, a three-tier type system--that is exactly--I mean, to be
very honest with you, that is exactly what is starting to move
forward with, for example, SAFETEA-LU and MAP-21 and, frankly,
even in the Recovery Act. So the Committee has a chance to
really put a timeline around the package, and I think it would
be really well served if you can do that.
Mr. Cohen. Mr. Slesinger, do you agree with that?
Mr. Slesinger. No. I think there needs to be flexibility
for the timelines. If you are doing a highway project that is
similar to a lot of other highway projects, there is a good
history to know how long it should take and those timelines can
be agreed to. But when there is unique projects, such as Cape
Wind turned out to be, if it is a nuclear power plant licensing
where the timelines are somewhat longer, it may be
inappropriate to set up a very fixed timeline. For instance,
nuclear power plants--a lot of the processes were stopped when
Fukushima happened and people had to go back to see what we
could learn to make sure we do it right. So we just need some
flexibility.
Mr. Cohen. Let me ask you this. Mr. Duffy talked about a
Massachusetts law. Are you familiar with the Massachusetts law
that has a 12-month limit?
Mr. Slesinger. No, I do not. I am sorry.
Mr. Cohen. Mr. Duffy, do you think that that Massachusetts
law is necessarily something that could be--is it apples to
apples or is it something different?
Mr. Duffy. I think it is very close. That is why I brought
it forth as an example for consideration. As a matter of fact,
it was introduced in the early 1970's largely in response to
localized oppositions to power plants, in particular nuclear
power plants. And the decision was made that the ultimate
policy decision should be made on a comprehensive basis on a
statewide basis rather than multiple decisions by numerous
agencies at the local, municipal, and State agency, but also
recognition that projects needed to move forward led to the
provision of the 12-month limit, as well as a direct appeal to
the State's highest court so that projects could move forward
more quickly. And I think that was a bipartisan bill. It has
got 30 years of experience in Massachusetts, and it has
withstood the test of time. That is why I thought it was an
excellent example for Congress to consider.
Mr. Cohen. I would hope that we could find a way to do it.
I think what Mr. Slesinger talks about--the lack of money
sometimes is a problem. Mr. Kovacs and Mr. Duffy, do you not
agree that sometimes lack of funding is the cause for the
delay?
Mr. Duffy. It can certainly be a factor.
Mr. Cohen. Mr. Kovacs, do you agree?
Mr. Kovacs. Well, the projects that we looked at, you have
to appreciate, were all private sector and the money was there.
And in Project No Project, for example, out of the 351
projects, the private sector said it was willing to invest $571
billion. And in the highway funds, we have always supported
additional funding for the infrastructure. On the Government
side, we have supported the money, and on the private side it
is there. So I do not think it is really money.
Mr. Cohen. Mr. Slesinger?
Mr. Slesinger. Part of it is money. Part of it is just
experience. I will give an example. The Bureau of Land
Management used to take 4 years to do an analysis for putting
wind or solar on our public lands. With more staffing and more
experience, the time now is just slightly over 1 year. So when
we get more experience, we get more staffing, the agencies can
do their job much quicker and efficiently.
Mr. Cohen. Since my time has expired, I will yield back the
balance of it.
Mr. Goodlatte. I thank the gentleman.
And the Committee will stand in recess. It may be a very
brief recess because the Chairman of the Subcommittee I believe
is on his way back from the vote, and he will ask his questions
as soon as he returns. But the rest of the Members will recess
now so we can go handle a vote on the floor.
[Recess.]
Mr. Bachus. We are back from our recess. We will give
everybody a minute or so to reassemble. I am not sure. I think
we do have some other Members coming. I anticipate maybe two
other Members who would like to ask questions.
Let me say before I initiate my questions I think we all
have these experiences we go through, and it is fascinating,
Mr. Duffy, the experience your company has had. Amazing. And
also amazing that Massachusetts has a short statute. It proves
that you can do things deliberately and yet thoroughly and in a
short period of time.
Mr. Duffy. And I would add, Mr. Chairman, as you noted in
your opening statement, the initial guidance from the CEQ from
1981, the famous 40 questions--on the very specific question,
what is the timeline required for a NEPA process, their
guidance at that time was the council has advised the agencies
under the new NEPA regulations, even large, complex energy
projects would require only about 12 months for the completion
of the entire EIS process. So that was in 1981, roughly
contemporaneous with the adoption of the Massachusetts
statutes. They were both focused on a 12-month review at that
instance. And somewhere between 1981 and today, we have had a
wide expansion, obviously. And I think it may be useful for the
agencies to get a more clear statement of congressional intent
as to how long this process----
Mr. Bachus. That is a very good point.
Mr. Slesinger, you refer to those 40 questions in your
testimony.
Mr. Slesinger. Well, I think the one thing that we have to
be aware of with timelines and in this bill in particular is
that a project sponsor can require an agency to start working
on the EIS process, but the agency may not be funding that
construction for 10 or 15 years. That is a big problem with the
Corps of Engineers where they may begin EIS's, but they know
the funding is 15 or 20 years out. So there is a tendency in
agencies like that not to move that EIS process along quicker.
So maybe we need to make sure that if we are going to do the
EIS process, there is going to be funding, be it private or
public, to make the timeline make sense. You do not want to do
an EIS so far before the beginning of construction that you are
going to learn things that will be important. For instance, it
would be silly to do storm protection on Long Island or Staten
Island 5 years ago, then have Sandy come and find out that you
learned so much you really need to go back and do the whole
thing. So if we can time the EIS closer to when construction or
whatever is going to happen, I think it would make agencies not
maybe take a lot of time----
Mr. Bachus. Well, of course, I think that would almost
argue for a streamlined process because many times we do have
an environmental impact and then there are court appeals and
things are tied up for 10 years or 8 years and then we are told
we have to update all those engineering studies. And that feeds
back in to more delay.
Now, I went to India several years ago, and they took me
out to a house on a road. It was a four-lane highway. And in
the middle of the highway, all of a sudden it narrowed to one
lane, and there was a two-story house in the middle of what
would have been the road. And they explained that Nehru was so
concerned because he was persecuted by the British that he
established a long administrative appeal process where you
could appeal, appeal, appeal, meant to protect his civil
liberties. But in ensuring all that, it can take up to 50 years
in India to condemn a piece of property. So I said, well, this
one piece of property--who is this person? He is a government
official. Well, he has got some contacts. I said, didn't he get
a little embarrassed by this? Well, he has been dead for 20
years. [Laughter.]
If you go to Delhi, if you go to Mumbai, old Bombay, you
will get on the highway there. You might get on an elevated
highway and then all of a sudden you have to get off and wind
your way through an area that is just teaming with people and
pedestrians, and what can be--from downtown Mumbai to the
airport is a 4-mile trip that takes 2 and a half hours. So when
I say that we are falling behind, we are not falling behind
India.
Now, if you want to go someplace fast in India--and I mean
not fast but you will get on their railroads which function
about like our 1940 rail system. And it is not fast but it is
not slow. They were built before all this. So the railroads are
relatively straight. But you could not build those railroads
today.
In fact, we have a Honda plant in Birmingham. They wanted
to have two rails instead of being a captive shipper. They were
never able to build a 7-mile rail spur because of one property
owner. And that was part of the deal that the State made them.
But it delayed that plant 6 years. And we have had delays
during 2008-2009, people out of work, still out of work. They
want to be taxpayers. They do not want to be receiving public
assistance. It all fits in.
One of the criticisms of the stimulus, which I am sure you
heard in the construction business, was they did projects that
were shovel-ready and not maybe because that was the best
project. So you had a highway that had a bridge that was
substandard or an elevated highway or you needed to do
something. You needed to add a lane. Instead, you blacktopped
over an area that maybe did not even need to be blacktopped
then. But because that was shovel-ready, you could get a permit
for that. So a lot of the work that was done as a result of the
stimulus was--you know, we need to put people to work right
away. We do not have 5 years. So a lot of it was almost--you
know, it was not the priorities. It was blacktopping roads and
repairing curbs and things of that nature.
If no one else returns, I am going to ask two questions,
and I will start with Mr. Kovacs. If there are true
environmental problems with a given project, will the RAPID Act
prevent Federal officials from assuring that those problems are
avoided, minimized, or mitigated before a permit is granted in
your opinion? And that is Mr. Slesinger or certain
environmental groups are raising----
Mr. Kovacs. Absolutely. Whatever is being examined today
under NEPA will be examined under the RAPID Act. For example,
there have been no known environmental problems under SAFETEA-
LU. So everything that was going on with NEPA still goes on.
Second, not only does it not affect NEPA, but it does not
affect clean air or clean water. It does not affect any
statute. What RAPID does is three very simple things.
It has a lead agency that is responsible for coordinating
the project within a time frame. And I say within a time frame.
Second, it requires that people come in and out of the time
frame in a managed way and that they cannot use sufficiency as
a delaying tactic. Right now, one of the reasons that the
process goes on forever is that nothing ever becomes
sufficient. By putting time frames on it and requiring it to be
managed in a time frame, the agencies come in, state their
objections, and then they move out.
And finally, because of the statute of limitations in NEPA,
which is a 6-year statute of limitations imposed by pure court
order, the Federal Government ended up with a 6-year statute of
limitations in an administrative proceeding that actually and
for all other proceedings is 6 months.
So, again, nothing that has happened in SAFETEA-LU has
shown that there have been problems. Nothing that is in RAPID
actually moves into any substantive changes.
And finally, if you do not mind. You were talking about the
stimulus act and blacktopping and shovel-ready projects. One of
the reasons the Congress was even able and the executive was
even able to get the projects done that were done is that on
the floor of the Senate, Senator Boxer and Senator Barrasso
came to an agreement and understood that if NEPA operated the
way it normally operates that you would not have ever gotten to
a shovel-ready project.
Now, I want to give you an idea because these are the
Administration's numbers. Out of the 192,000 projects that were
in the stimulus act that got constructed, 184,000 of them went
under the most expeditious process possible. Otherwise, you
would not even have had those projects done.
Mr. Bachus. And those were just blacktopping. Most of them
were very simple projects.
Mr. Ivanoff, do you want to comment on that?
Mr. Ivanoff. No. I think going back to your question about
will the RAPID Act catch issues, I just want to reiterate that
the process is not what we are talking about here. That is not
what I think everyone here is speaking to. What we are speaking
to is the review processes. And that is, I think again, having
a lead agency status is, I think, a good priority in this
particular piece of legislation. And the second one is trying
to get the agencies to do these reviews concurrently. If you
have them sequentially, happen sequentially, you will find one
agency, the Fish and Wildlife, will finish the first 6 months.
Army Corps does not get to their review for a year or year and
a half. All of a sudden, you have conflicting issues that might
come up over a similar mitigation. And now you have to go back
to an agency who has got other priorities. If you can address
all of those in a timely manner through the first 6, 7, 8
months of this review process, now as a lead agency status, you
can bring all of these agencies to the table and you resolve
any of these kinds of conflicts in a coordinated and reasonable
manner. And I think that is what will take a lot of this review
process and shorten the time frame. That is what would help
tremendously.
Mr. Bachus. I know, Mr. Slesinger, you mentioned the Corps
of Engineers. A lot of the delay is because they just do not
have the funding.
Mr. Slesinger. Yes.
Mr. Bachus. Congressman Jo Bonner from Mobile can tell you
about a project on Mobile Bay where a landowner wanted to build
a camp for handicapped and challenged children with different
developmental or physical handicaps. And he wanted to build a
lake on that property. And the Corps took several years. I
mean, it was a matter of 6-8 years. When they finally ruled,
they asked him to do $1 million worth of remediation. Now, he
was going to give the land and build a camp. I think it was
wetlands. Congressman Bonner would love to enter a statement
for the record. But they were told to do remediation because
they were affecting wetlands. And Congressman Bonner went with
them to the land, and they were unable to find the wetlands. I
am going to have him tell it exactly the way it was. But he
said he is actually bitter about that. I would love to maybe
have him back or maybe on the floor, if this bill comes to the
floor, to talk about that.
How many jobs are we talking about creating, Mr. Kovacs,
with RAPID Act's enactment, and how fast could these jobs
become a reality? And maybe how long do you think they will
last? I know they pay highly. I know the construction industry.
Those are very good jobs. And we in this country are facing, a
lot of people are saying, minimum wage jobs. But these are not
minimum wage jobs.
Mr. Kovacs. Well, these certainly are not minimum wage
jobs, but to give you an idea--and I do not know that anyone
has done a study and compiled everything. But just on Project
No Project, had those 351 projects been completed, that was a
private sector investment of roughly $570 billion. And our
estimates were during the 7 years of construction, it would
have been 1.9 million jobs a year, and thereafter, it would
have been about 750,000 jobs a year. So you are close to 2
million.
On the Recovery Act, because of the fact that you needed
some form of waiver from NEPA going through the most
expeditious route, 184,000 of the projects out of the 192,000
projects went forward. The President's own estimates of the
value of the stimulus was about 3.5 million to 5 million jobs.
So if you took a million, 20 percent of that, and added it, you
were at 3 million jobs there, and then whatever the jobs are
created in SAFETEA-LU. So you are looking at a minimum of 3
million jobs just by moving projects forward in a more rapid
way.
Mr. Bachus. Mr. Ivanoff, do you have any comment on those
jobs and how much they pay?
Mr. Ivanoff. Well, in terms of jobs, obviously I totally
agree with you. First of all, I think these construction jobs--
I think you have to realize that they really cover an extremely
broad spectrum. For these jobs, you have got to plan them out.
You are going to have environmentalists take a look at it. You
will have the environmental and scientific community get
involved. You will have engineers, designers get involved
designing the project. You will then go out to the
construction. You will have, as you are saying, construction
jobs. And to construct, you need to have equipment. So you are
going to generate manufacturing jobs. The quarries have to
bring in the cement. They have to bring in the aggregate.
So the beauty of the construction industry is that it does
not just give you construction jobs, but you start off with
early planning, engineering with the white-collar workers. You
get to the blue-collar workers. And then once you have whatever
it is you have constructed in place, that facility now
generates economic activity. So it is one of the greatest
multipliers, I believe, of economic activity that you could
possibly have.
Mr. Bachus. And obviously, some of the jobs you are
creating--the Midwest where a lot of that equipment is made--
those are places that need it.
Mr. Ivanoff. Peoria, Illinois, Caterpillar. Right?
Mr. Bachus. Yes.
Mr. Duffy and then Mr. Slesinger.
Mr. Duffy. I would just like to stress the same point for
electric power facilities. It is a very labor-intensive job.
Just for example, we have a project under construction that
should be on line by this fall in Florida with 700 workers on
the job site today and a 30-month construction schedule. We
have done two projects of that scale in the interim while we
are still trying to get this wind project permitted. And
notably, neither of those triggered NEPA.
Mr. Bachus. Mr. Slesinger?
Mr. Slesinger. I would just want to point out that the
things that were done to expedite the Recovery Act were using
existing law. A lot of the improvements that Mr. Kovacs
mentioned and Mr. Ivanoff mentioned were under the current law.
And so, for instance, though there has been a lot of talk about
doing concurrent reviews, that has been the CEQ policy for 20
years and that is how they move forward.
So I think a lot of the things that people want to happen
are happening, but the real problem that is really delaying a
lot of these projects are local NIMBY issues that are not part
of the NEPA problem. So addressing NEPA, you are still avoiding
maybe 90 percent of what is causing the delays that you are
concerned about.
Mr. Bachus. All right. Thank you.
Mr. Slesinger. I would also want to note--and I do not want
to speak for Mr. Duffy, but others of us are all on record of
supporting more infrastructure, for raising revenues through
gas taxes or otherwise to help that because we all agree--
environmentalists, construction, the Chamber--that we need to
have a better infrastructure, and what we have been doing has
been very short-sighted.
Mr. Bachus. Thank you. I appreciate that. And I think there
is ground for commonality and for agreement. I hope that we can
get there.
At this time, I am going to recognize the gentleman, Mr.
Marino, as I said several times, the sponsor of this
legislation.
Mr. Marino. Thank you, Chairman.
I think it was Mr. Ivanoff who hit on the point--I could be
wrong. Maybe it was Mr. Slesinger as well. But this is a review
piece of legislation, clearly a review piece of legislation.
And I know, Mr. Slesinger, you said that there is existing law
that has streamlined, but still we are looking at 7 to 10 years
even taking into consideration that municipalities may have a
part in slowing this down. And so I see what is happening.
I am going to use two examples of two agencies, EPA and
Army Corps. The Army Corps is doing their review, and we say to
EPA what is going on with your review. Well, we are not doing
our review yet because we are going to wait till Army Corps is
done. And I think it is critically important that these reviews
be done simultaneously.
And you know what else would be, I think, very, very
helpful is when I was in industry helping to build factories--
and it was not a revelation, but one company could not figure
out why they had to put so much into reinvesting in the
factory. And I said who sat at the table to determine what the
factory is going to be like. Well, our architect and the plant
manager. I said did you ever think of bringing in people that
are going to transfer in that work on the line. Did you ever
think of having the electricians sitting there with you? Did
you ever think of having the shipping department manager sit
down and say what he or she needs? Because Mr. Ivanoff and I
can sit down and we think we come up with a great idea on how
to put something together and implement it, but we do not
include Mr. Slesinger or Mr. Duffy or Mr. Kovacs. And they will
say wait a minute. When it is up and running, they will say
this is causing us a problem. So have the people at the table.
Particularly the review agencies can talk back and forth
saying, you know, that is an issue and we should look at that,
but let's take a look at it from this approach.
And throwing money at it, it has proved in D.C. that it
does not work. You know, look at the Department of Education.
Look at the Department of Energy. Look at the money that we are
throwing at agencies and bureaucracies, and we still have more
kids dropping out of school than ever before. And we went from
25 percent dependency on foreign oil to 62 percent dependency
on foreign oil. So what is happening over there?
And it just gets down to the point where--Steve, my friend,
Mr. Cohen, brought up a point that made me think of something.
Mr. Slesinger, you talked about a review process and one size
does not fit all. And I am the first one to stand up and say
one size does not fit all because it is obvious on the way it
is working. It is not working now.
But perhaps we should explore this idea. I would like a
period of a set, fixed time. However, if one agency comes in
and says we need more time for this review, I do not want that
to stop the review, and I do not want that to be the only
excuse. You need more time. You come in with substantive
evidence on a very narrow issue specifically why you need more
time and then address that issue immediately instead of just
saying we need more time. There has got to be a group or a
panel or someone that says tell us why you need more time and
then when are you going to get to work on it.
Mr. Slesinger, do you want to respond to that?
Mr. Slesinger. Yes. I think one thing we need to remember--
and I want to expand on some of your points--is that if we can
get people at the table, if we can get the local community buy-
in from the beginning, you do much better. One of the issues we
have with your bill is that you can have all these Federal
agencies working together and meeting all your timelines, and
then in the end, you have only 30 days or 60 days for public
comment. And maybe all those people who are out there who are
going to be affected are just hearing about it and have just an
incredibly short time period to act. There are ways the system
can work to bring people in earlier.
Mr. Marino. We need an efficient, general form of notice.
Mr. Slesinger. Exactly.
And another thing that we might want to look at is
sometimes you cannot get everybody working immediately.
Mr. Marino. I understand.
Mr. Slesinger. For instance, if Mr. Ivanoff wants to cross
the Hudson River but he does not know if he wants to do it--or
the agency is not sure of a bridge or a tunnel is the way to
go, the environmental impacts to do it when you do not know
which of those two options is really on the table----
Mr. Marino. Agreed.
Mr. Slesinger. There are ways to do that more efficiently.
So, again, we think the bill needs to be aware of the fact
that things are not--it is not just repaving the same road. A
lot of these projects are very big.
And one thing I wanted to say where the bill is not process
is the automatic permitting. Under the Atomic Energy Act, the
Clean Water Act, the Clean Air Act, if the agencies do not get
done in the 1 year, the permits automatically----
Mr. Marino. Then shame on the agency. Then the agency needs
to be revisited. Someone else needs to be running the agency.
With the proper notice--with the proper notice--they should be
on this unless, again, they come up with a reasonable exception
as to why they cannot get into this process immediately.
Mr. Slesinger. You could have some imaginary future
Administration say, gee, this is a really politically difficult
issue. I am just going to sit on my hand, not do anything, and
let the permit be automatically approved. That is a concern.
Mr. Marino. And then, you know, the voters are going to
deal with the legislators, the people that they elect in
office, to let something like that happen.
I am passionate about this. Please excuse my Sicilian
passion. It is not directed at you, sir, or anyone else. And I
think this is something, if we just roll our sleeves up and say
let's just apply common sense, check our egos at the door, and
what is best for this country, we are going to be able to
protect the environment, protect our children, and create jobs
in a much shorter time then we are doing right now.
So I look forward to any input and any guidance that any
one of you or anyone else wants to give me.
Mr. Slesinger. I look forward to it.
Mr. Marino. Thank you.
I yield back.
Mr. Bachus. At this time, I recognize the gentleman, Hakeem
Jeffries, from New York.
Mr. Jeffries. Thank you, Mr. Chair.
I have in my hand a letter from more than a dozen
environmental groups in opposition to this legislation, as well
as a CRS report from April 11 of last year, a statement of
Administration policy dated July 23, 2012, and a letter from
the Council for Environmental Quality from April of this year,
that I would like to ask unanimous consent they be entered into
the record.
Mr. Bachus. Absolutely. Without objection. Seeing no
objection, they are introduced.
[The information referred to follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. Bachus. That will not take away from your 5 minutes
either. So we will start the clock. Everybody has gone over
their 5 minutes. So there is really no such thing as 5 minutes.
Mr. Jeffries. Well, Mr. Chair, we all appreciate your
southern hospitality.
Mr. Kovacs, I want to explore sort of a narrative that has
been put forth today as it relates to the recession and then
the slow, in the words of others, economic recovery subsequent
to the collapse of the economy in 2008. And certainly I think
most reasonable people would agree that the economic recovery
has not been as robust as we all would like for the good of the
people that we represent.
It has been an uneven recovery, but certainly it seems to
me, based on objective criteria, that corporate America has
been a disproportionate beneficiary of the recovery to the
extent that there has been one of significance subsequent to
the collapse of the economy. Is that a fair statement?
Mr. Kovacs. I do not really do that kind of economic
analysis. I am sorry. I cannot help you.
Mr. Jeffries. Okay. But would it be fair to say that part
of your concern related to the permit process is that it
hinders the ability of American companies to be successful? Is
that not the genesis of your report and the reason why you are
sitting before us today?
Mr. Kovacs. Well, I think the essence of the report says
that there are projects that the private sector--and I know
there are projects especially in the transportation field that
the Government sector would like to do, and we think that it
would enhance job creation and enhance the economy if they
could move forward more quickly.
I think that the statistics--and you were not here when I
went over like on the American Recovery Act. One of the
statistics that is really amazing that the Administration puts
out is that out of the 192,000 projects that went through the
Recovery act, 184,000 of them had to go through the Boxer-
Barrasso Amendment which is use the most expeditious route
possible under NEPA. And so if they had to use the full-blown
NEPA versus the Barrasso-Boxer Amendment, the question is how
many of those would have stalled out.
And my only point is that I think if you listen to all the
panelists, you look at where they are in the Senate, look at
where they are in the House, there is an enormous amount of
agreement that we have to get the time frame right and things
have to move quicker. And I don't think----
Mr. Jeffries. And I would agree with that. Reclaiming my
time, I would agree with that concern as it relates to the time
frame and making sure it is appropriate both in terms of its
rigorousness but not unnecessarily hindering the opportunity
for innovation and entrepreneurship and businesses to move
forward.
Now, am I correct that the stock market currently is at or
near record highs? Is that a fair, factually accurate statement
that you are qualified to answer?
Mr. Kovacs. It is certainly doing better than it was
several years ago.
Mr. Jeffries. And am I correct that corporate profits are
at or near record highs presently?
Mr. Kovacs. Actually, you would have to ask our economist.
I think he would be the better person.
Mr. Jeffries. Okay, I think that is a generally accepted
fact.
Am I correct that the productivity of the American worker
is at an all-time high or certainly has increased dramatically
over the last several years, meaning that companies are in a
better position to make more using the same or less employees?
Is that a factually accurate statement?
Mr. Kovacs. Well, I think productivity has increased for
centuries based on technology, new materials, everything.
Mr. Jeffries. Okay. So I think that the doom and gloom
scenario, as has been painted, related to the economy and the
Obama recovery would do well to take into account some of the
objectively understood facts as it relates to who actually has
benefitted during this recovery, particularly in the context of
this discussion where we all are legitimately concerned about
the success of American companies moving forward. But that
success and whatever regulatory obstacles exist I think should
be interpreted in the context of the fact that corporate
America is doing pretty well right now, but it is the middle
class, working families, poor folks, seniors who have struggled
in the context of this recovery.
Mr. Kovacs. But, Congressman, the jobs that would have been
created had these projects gone forward would have gone to the
middle class. I mean, these would have been high paying
construction jobs. And I think the purpose for us doing Project
No Project and being so actively involved in the permitting
issue is it will create jobs. The U.S. Chamber wants to create
as many jobs in this country as we can possibly create. And our
position is not that jobs have not been created. Our position
is we can create a lot more and we can take the people who are
either unemployed or have part-time jobs and put them in full-
time jobs through these projects. And I think all of us have
agreed that these projects need to go forward in a more
expeditious way, and if they do, they will create jobs. And
that is what we should be working for.
Mr. Jeffries. I think we can all find the point of
agreement as to the end of creating jobs for those that we
represent here in America. The best means to do so--we will
have to continue that debate.
But I thank you, Mr. Chairman, and I yield back.
Mr. Marino [presiding]. Thank you, Mr. Jeffries.
Distinguished Congressman, Mr. Johnson.
Mr. Johnson. Thank you, Mr. Chairman.
I think that we all would agree that a sustainable
environment is a key to economic prosperity. Do you all agree?
Is there anyone who does not agree?
[Nonverbal response.]
Mr. Johnson. So a sustainable environment--I mean, we are
talking about air quality, water quality, things such as that.
Those things are important to economic prosperity. Are they
not? Do you all agree?
[Nonverbal response.]
Mr. Johnson. And so now, when we have scientists who are
studying the impact of man's activities on our environment with
an eye toward determining whether or not those activities are
sustainable or not, should we not pay any attention to those
kinds of studies? Is there anyone who would agree that we
should just discard those studies?
[Nonverbal response.]
Mr. Marino. If the gentleman would yield for a moment, I
want to go on record that I absolutely agree with you that we
should make certain that our environment is protected, and I
think I have reiterated that numerous times. So I do not think
you are going to get anyone here to disagree with you.
Mr. Johnson. Well, I do not know, though. I do want to just
make sure that I can get an affirmation by a show of hands.
[Show of hands.]
Mr. Bachus. Mr. Kovacs too, all right. Thank you, my
colleagues on the other side.
And so when 95 percent or so of scientists agree that man's
activities contribute to the diminution of our environment from
a quality perspective, I mean, we should pay attention to that.
And so when 95 percent of them are saying that man creates
the--or mankind--man's activities contribute to global warming
and global warming is a real concern, then we should, as a
society, pay close attention to that.
Now, Mr. Kovacs, I know that you have taken positions in
opposition to the scientific research that has been done. Do
you have any scientific reason for taking those kinds of
positions on this issue of global warming?
Mr. Kovacs. That is not a correct statement, sir.
Mr. Johnson. What is not a correct statement? That you have
taken----
Mr. Kovacs. That I have taken positions in opposition. The
U.S. Chamber has consistently supported finding a way in which
to reduce greenhouse gases without destroying the economy.
Mr. Johnson. Will the Chamber of Commerce consider not
blocking alternative forms of energy creation such as wind and
solar?
Mr. Kovacs. Well, Congressman, I thought I answered this
the last time. But we have for--I do not know--15-16 years
before even a lot of the renewable fuels became popular with
the environmental community, we supported renewable fuels. We
supported energy efficiency. We supported energy savings
performance contracts. We are sitting here next to Cape Wind. I
do not know. When was the first time we supported your project?
10 years ago?
Mr. Duffy. Probably 10 years.
Mr. Kovacs. So, I mean, I think on that ground I just beg
to differ with you. I think you are just wrong.
Mr. Johnson. Well, I mean, I am looking back as early as
2001 when you appeared on CNN on behalf of the Chamber and
claimed that there is no link between greenhouse gases and
human activity. I mean, that is just a fact.
But then even up to 2009, I see that you challenged an EPA
decision about clean air and you pledged to put the science of
climate change on trial kind of like a Scopes Monkey Trial of
the 21st century. There was a comment that was attributed to
you in 2009.
Mr. Bachus. Not the part about the Scopes Monkey Trial.
Mr. Johnson. Oh, okay.
Mr. Bachus. That was your comment. Right?
Mr. Johnson. And even today the Chamber continues to take
or make exaggerated claims that regulating greenhouse gases
would eliminate jobs and strangle the economy. And you are
spending millions of dollars in a campaign against meaningful
climate change legislation. And so I do not know how you can
square what your activities have been over a period of at least
12 years----
Mr. Kovacs. Well, I can honestly tell you that if funds had
been spent in opposition to climate change, whether they be
advertising or anything else, it would have come out of my
division. And I can tell you for a fact there has not been any
money put up by my division to oppose climate change
legislation.
Mr. Johnson. That is a very technical and artful way of
escaping responsibility, I think, for the Chamber's efforts----
Mr. Kovacs. No. This is, I guess, where you and I just
really have a fundamental disagreement. If you go back through
the pages of what the Chamber has supported, we have promoted
technology. We have promoted energy efficiency. I mean, when
President Obama decided to have a major event on energy
efficiency contracts and it was going to be a major event, he
was going to issue an executive order, he was going to have
President Clinton there with him, who was the only CEO that he
asked to appear with him? It was Tom Donohue, and they all
promoted the energy efficient savings contracts. So certainly
if we had the positions that you are espousing, I do not think
that President Obama would have invited our CEO to that event.
So I think we are very proud of all of the efforts. Go ask
Congressman Welch. We have been with him in the beginning on
his energy efficiency bill. We have been there on all the
energy efficiency bills. I think there is probably one we did
not, but virtually on all of them. So I think we have been
pretty consistent.
We may disagree with you on some of the bills. As I said to
you last time, we did disagree with Waxman-Markey. We thought
that the regulatory structure was so oppressive that it would
literally sink the economy, and the economy was already bad at
that time. But we have always left ourselves open to coming to
some kind of a position where we can balance the economy and
the environment and make sure that we do not sink the economy
through regulations.
Mr. Johnson. Well, do you think that regulations are due in
such an important area such as the environment? Environmental
regulations are basically what the Chamber has traditionally
attacked.
Mr. Kovacs. We have historically said that this Nation
needs reasonable regulation. We have never argued with that. If
you did not have regulation, we would have to probably create
it just to have business practices. The question is between
1946 and today we worked on a few small regulations. Today we
are on regulations that are massive costing tens of billions of
dollars, and I think the concern there is let's understand what
it is we are doing because it does have an effect on jobs and
we just need to appreciate that.
Mr. Johnson. Well, you seem to be a very reasonable person,
Mr. Kovacs, and I look forward to working with you in good
faith to try to do something good for our environment and, at
the same time, promote prosperity for the businesses.
Mr. Kovacs. We are there on that one.
Mr. Johnson. And I thank you.
Mr. Marino. Thank you, Mr. Johnson.
Just for the record, I want to refer to a portion of Mr.
Kovacs' report, and I quote. One of the most surprising
findings is that it has been just as difficult to build a wind
farm in the U.S. as it is to build a coal-fired power plant. In
fact, over 40 percent of the challenged projects identified in
our study were renewable energy projects. And we did ask some
renewable people to be here and they chose not to be here.
For my good friend, Mr. Johnson, where I live, it is not
only humans that get blamed for the gases. It is our cows as
well.
The Chair recognizes the Chairman.
Mr. Bachus. Mr. Ivanoff, I just would like to make one
closing comment. You were talking about the jobs that are
created, not just building the road, the project. I went back
and what I was reminded of recently--they came out with the
truck sales of General Motors and Ford and Dodge. And the
largest consumer was the construction industry, and not all of
them in road construction. But I looked up where these trucks
are made, the largest customer for these factories. In
Dearborn, Michigan, that is the F150 and a smaller factory in
Kansas City. They are all made there. How about the Avalanche
and the Silverado? Flint, Michigan; Fort Wayne, Indiana; Grand
Rapids, Michigan. The Ram, Warren, Michigan. So a lot of jobs
in a lot of--Fort Wayne, Indiana; Dearborn, Michigan;
Zanesville, Ohio; Warren, Michigan. Every one of those is
probably a high unemployment area. A lot of people. They are
there. They want to work hard. They are very good paying jobs.
So I commend the gentleman from Pennsylvania for bringing
this.
I close by saying everybody has commented. The studies are
going to be done. They are just going to be done quicker. Mr.
Duffy, there are people that waited 12 years for that job. A
lot of them did not have 12 years.
So I yield back the balance of my time.
Mr. Marino. Votes are going to be called shortly. But, Mr.
Johnson, do you have anything further that you would like to
discuss?
Mr. Johnson. Yes, I do, Mr. Chairman, and I do appreciate
it.
I know that in your testimony, Mr. Duffy, in the paragraph
numbered 2 in the first paragraph thereunder, the last
sentence, you are talking about the Federal regulatory process
and you state in that last sentence: ``Indeed, the Chairman of
our opponents' group recently admitted in the press that his
strategy is one of 'delay, delay, delay.''' And you point that
out in your comments. Is that correct?
Mr. Duffy. That is correct, Mr. Johnson. That is the
chairman of our organized opponents' group made that statement
recently in CommonWealth magazine.
Mr. Johnson. And your chairman is in fact Bill Koch. Is
that correct?
Mr. Duffy. That is correct. That is the statement of Mr.
Koch.
Mr. Johnson. But actually in that statement that you pulled
from Mr. Koch stated that he is--he says he is pursuing two
Cape Wind strategies. ``One is to just delay, delay, delay,
which we are doing and hopefully we can win some of these
bureaucrats over. End quote. He says, quote, the other way is
to elect politicians who understand how foolhardy alternative
energy is.''
So Mr. Bill Koch we know is just a strong and unstinting
opponent of alternative energy, and I know that his activities
in terms of electing persons who are of that same mindset is an
activity that the U.S. Chamber of Commerce has participated in
as well.
And I just want to point--I do want to place a copy of Mr.
Koch's statement, which is in an article which is entitled
``The Man Behind Cape Wind and the Project's Biggest Opponent
Have Been Negotiating Privately for More Than a Decade.'' It is
by Bruce Mohl, M-o-h-l. I would like to submit this for the
record without objection.
Mr. Marino. Without objection.
[The information referred to follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. Bachus. Well, let me raise an objection which I
withdraw.
Mr. Marino. I take back that without objection.
Mr. Bachus. I would like the record to show that
Congressman Hank Johnson has joined with the Koch brothers in
resisting this alternative energy project. So I thought you all
were adversaries, but you are obviously doing what you consider
the devil's work here.
Mr. Johnson. Yes, I mean, there is a place for political
activity, and there is a place for good public policy that
promotes the general welfare.
Mr. Bachus. So you are commending the Koch brothers.
Mr. Johnson. Well, there is certainly no intent on my part
to do that.
Mr. Bachus. It sure sounded like that is what you----
Mr. Johnson. No, no, no, no, not at all.
Mr. Slesinger, you are grabbing for the mike. I want to
give you an opportunity.
Mr. Slesinger. I just think that, again, this issue with
Cape Wind again comes down to not so much it was NEPA but just
a very well financed, organized opposition for whatever reason
that is the real cause for most of these delays, not NEPA.
Mr. Bachus. Mr. Duffy was wanting to respond.
Mr. Marino. Yes. I wanted to give each one of the panel
members 15-30 seconds. If you want to wrap something up, please
do.
Mr. Bachus. Maybe they would like to respond to this
question and then you could give them time.
Mr. Marino. Sure, go ahead.
Mr. Duffy. Just in response, obviously this is a well-
funded opposition, but something is wrong with the system if a
well-funded opponent can misuse the NEPA system to drag it out
for 10 years. As we mentioned before, the original 40 questions
estimated a 12-month timeline. We are at 10 years. The CEQ regs
today say the text of an EIS shall normally be less than 150
pages or proposals of unusual scope shall normally be less than
30 pages. We, with the Department of Justice and the NRDC, are
going to file a brief tomorrow defending the sufficiency of a
5,000-page environmental impact statement. So I think our point
is something has gone amiss from the original congressional
intent that is reflected in the statute and the original
adoptions of guidance from the CEQ to where we are today.
And we just think Massachusetts, with its energy facilities
siting statute on a bipartisan basis, has a solution with a
strong track record which is worthy of consideration. It
imposes a 12-month time limit and an expedited appeal directly
to the State's highest court to move projects forward that are
worthy of merit.
Mr. Johnson. Well, if I may, Mr. Chairman.
Mr. Marino. Quickly, please.
Mr. Johnson. It is indeed clear that something is wrong
with our democracy when a couple of deep-pocketed individuals
can stall action for this long.
Mr. Marino. Mr. Slesinger, would you like 15 seconds?
Mr. Slesinger. I would just note that, again, Cape Wind was
a unique case. Because of the very strong and well-financed
opposition, it required to, quote, paper the record, which is
probably why the NEPA documents are as long as they are and why
we think they are very complete. And that is why we are joining
Mr. Duffy's company in supporting that EIS as being sufficient.
Mr. Marino. Thank you.
Mr. Ivanoff?
Mr. Ivanoff. Thank you very much. First of all, again,
thank you very much for giving us an opportunity to speak and
come before you.
Mr. Marino. It is our pleasure.
Mr. Ivanoff. I think, Mr. Marino, you have introduced a
very interesting piece of legislation. I wish you well with it.
I think it probably needs a little tweaking, as you heard from
Mr. Slesinger and others. But I think what it brings is it is a
job creation bill and many of these projects that we are
talking about--they cannot be outsourced. You cannot pave a
grade--do grade paving of a roadway from across the pond. It
has got to be done here by our people.
Mr. Marino. Thank you, sir.
Mr. Kovacs?
Mr. Kovacs. Very quickly. I think this is one of the more
constructive hearings I have been at. I saw the most agreement
I think I have seen in this Committee in several years, and I
am thrilled.
Mr. Marino. We are trying.
Mr. Kovacs. Really quickly. You know, in the conference
report when NEPA was first put out in 1970, they anticipated a
1-year time frame for getting these projects done, and they
anticipated at that time the President would do an executive
order to make sure it stayed on 1 year.
And also, just because it has been put up several times by
Mr. Slesinger, on Project No Project, it really depends what
projects you are looking for. Once you get into the Federal
stage of the projects, it is NEPA. And if you are a wind
project, a solar project, a water project, NEPA is what is
going to affect you. So you have to look at it. But the local
action starts in the beginning, but believe me, the inability
to come to a sufficiency of a NEPA review never ends.
Mr. Marino. And just for the benefit of my dear friend, Mr.
Johnson, I am out in the country. I live on a mountain. I heat
my house with propane gas. I live in the middle, dead smack in
the middle of Marcellus gas, which is booming our economy. But
be that as it may, I am looking in to putting a windmill on my
property because I see that energy shooting by every day that I
could utilize.
So with that, ladies and gentlemen----
Mr. Johnson. Well, if I might, just one more comment.
I always knew that my friend from Pennsylvania was a
flaming progressive. [Laughter.]
Mr. Marino. That was my deceptive intent.
Mr. Bachus. Hank, let's get behind this bill and stop the
Koch brothers from being able to delay a project.
Mr. Johnson. To my friend from Alabama, I admire your work
and will consider your guidance.
Mr. Marino. Thank you.
This concludes today's hearing. I want to thank all of our
witnesses for attending. I want to thank also our guests for
being here as well, and if you have any input, let our staff
know. We would appreciate it.
I want to thank my colleagues and our staff members. I
think we were very productive here today.
And without objection, all Members will have 5 legislative
days to submit additional written questions for the witnesses
or additional materials for the record.
This hearing is adjourned.
[Whereupon, at 12:02 p.m., the Subcommittee was adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
Response to Questions for the Record from William K. Kovacs, Senior
Vice President, Environment, Technology & Regulatory Affairs, U.S.
Chamber of Commerce
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Response to Questions for the Record from Dennis J. Duffy,
Vice President and Counsel, Cape Wind Associates, LLC
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Response to Questions for the Record from Scott Slesinger,
Legislative Director, Natural Resources Defense Council
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]