[House Hearing, 115 Congress]
[From the U.S. Government Publishing Office]





 
    LEGISLATIVE HEARING ON: H.R. 5468, THE ``PERMITTING LITIGATION 
EFFICIENCY ACT OF 2018,'' AND H.R. 4423, THE ``NORTH TEXAS WATER SUPPLY 
                         SECURITY ACT OF 2017''

=======================================================================

                                HEARING

                               before the

                            SUBCOMMITTEE ON
                           REGULATORY REFORM,
                      COMMERCIAL AND ANTITRUST LAW

                                 of the

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                     ONE HUNDRED FIFTEENTH CONGRESS

                             SECOND SESSION

                               __________

                             APRIL 12, 2018

                               __________

                           Serial No. 115-29

                               __________

         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 PUBLISHING OFFICE
                   
 30-953                 WASHINGTON : 2018           
      
      
      
      
      
      
      
                       COMMITTEE ON THE JUDICIARY

                   BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr.,         JERROLD NADLER, New York
    Wisconsin                        ZOE LOFGREN, California
LAMAR SMITH, Texas                   SHEILA JACKSON LEE, Texas
STEVE CHABOT, Ohio                   STEVE COHEN, Tennessee
DARRELL E. ISSA, California          HENRY C. ``HANK'' JOHNSON, Jr., 
STEVE KING, Iowa                         Georgia
LOUIE GOHMERT, Texas                 THEODORE E. DEUTCH, Florida
JIM JORDAN, Ohio                     LUIS V. GUTIERREZ, Illinois
TED POE, Texas                       KAREN BASS, California
TOM MARINO, Pennsylvania             CEDRIC L. RICHMOND, Louisiana
TREY GOWDY, South Carolina           HAKEEM S. JEFFRIES, New York
RAUL LABRADOR, Idaho                 DAVID CICILLINE, Rhode Island
BLAKE FARENTHOLD, Texas              ERIC SWALWELL, California
DOUG COLLINS, Georgia                TED LIEU, California
RON DeSANTIS, Florida                JAMIE RASKIN, Maryland
KEN BUCK, Colorado                   PRAMILA JAYAPAL, Washington
JOHN RATCLIFFE, Texas                BRAD SCHNEIDER, Illinois
MARTHA ROBY, Alabama                 VALDEZ VENITA ``VAL'' DEMINGS, 
MATT GAETZ, Florida                      Florida
MIKE JOHNSON, Louisiana
ANDY BIGGS, Arizona
JOHN RUTHERFORD, Florida
KAREN HANDEL, Florida

          Shelley Husband, Chief of Staff and General Counsel
       Perry Apelbaum, Minority Staff Director and Chief Counsel

                                 ------                                

    Subcommittee on Regulatory Reform, Commercial and Antitrust Law

                   TOM MARINO, Pennsylvania, Chairman
                 BLAKE FARENTHOLD, Texas, Vice-Chairman
DARRELL E. ISSA, California          DAVID CICILLINE, Rhode Island
DOUG COLLINS, Georgia                HENRY C. ``HANK'' JOHNSON, Jr., 
KEN BUCK, Colorado                       Georgia
JOHN RATCLIFFE, Texas                ERIC SWALWELL, California
MATT GAETZ, Florida                  BRAD SCHNEIDER, Illinois
KAREN HANDEL, Florida                VALDEZ VENITA ``VAL'' DEMINGS, 
                                         Florida
                                         
                                         
                            C O N T E N T S

                              ----------                              

                             APRIL 12, 2018

                               BILL TEXT

                                                                   Page
H.R. 5468, the ``Permitting Litigation Efficiency Act of 2018''..    V
H.R. 4423, the ``North Texas Water Supply Security Act of 2017''.    X

                           OPENING STATEMENTS

The Honorable Bob Goodlatte, Virginia, Chairman, Committee on the 
  Judiciary......................................................     6                               
The Honorable Tom Marino, Pennsylvania, Chairman, Subcommittee on 
  Regulatory Reform, Commercial and Antitrust Law, Committee on 
  the Judiciary..................................................     1
The Honorable David Cicilline, Rhode Island, Ranking Member, 
  Subcommittee on Regulatory Reform, Commercial and Antitrust 
  Law, Committee on the Judiciary................................     3

                               WITNESSES

Prof. E. Donald Elliott, Yale Law School, Senior of Counsel at 
  Covington & Burling, LLP
    Oral Statement...............................................     7
Mr. William L. Kovacs, Former Senior Vice President for 
  Environment, Technology & Regulatory Affairs, U.S. Chamber of 
  Commerce
    Oral Statement...............................................     9
Prof. Emily Hammond, Glen Earl Weston Research Professor of Law, 
  George Washington University Law School
    Oral Statement...............................................    10
Mr. Mike Rickman, Deputy Director of Operations and Maintenance, 
  North Texas Municipal Water District
    Oral Statement...............................................    12
              Additional Material Submitted for the Record

Memorandum and Letter submitted by the Honorable Tom Marino, 
    Pennsylvania, Chairman, Subcommittee on Regulatory Reform, 
    Commercial and Antitrust Law, Committee on the Judiciary. These 
    materials are available at the Committee and can be accessed on the 
    Committee Repository at:

        https://docs.house.gov/meetings/JU/JU05/20180412/108120/HHRG-
        115-JU05-20180412-SD002.pdf

Statement submitted by the Honorable John Ratcliffe, Texas, Vice 
    Chairman, Subcommittee on Regulatory Reform, Commercial and 
    Antitrust Law, Committee on the Judiciary. This material is 
    available at the Committee and can be accessed on the Committee 
    Repository at:

        https://docs.house.gov/meetings/JU/JU05/20180412/108120/HHRG-
        115-JU05-20180412-SD004.pdf

Letters submitted by the Honorable Val Demings, Florida, Subcommittee 
    on Regulatory Reform, Commercial and Antitrust Law, Committee on 
    the Judiciary. These materials are available at the Committee and 
    can be accessed on the Committee Repository at:

        https://docs.house.gov/meetings/JU/JU05/20180412/108120/HHRG-
        115-JU05-20180412-SD003.pdf
        
        
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    LEGISLATIVE HEARING ON: H.R. 5468, THE ``PERMITTING LITIGATION 
EFFICIENCY ACT OF 2018,'' AND H.R. 4423, THE ``NORTH TEXAS WATER SUPPLY 
                         SECURITY ACT OF 2017''

                              ----------                              


                        THURSDAY, APRIL 12, 2018

                        House of Representatives

                   Subcommittee on Regulatory Reform,

                      Commercial and Antitrust Law

                       Committee on the Judiciary

                             Washington, DC

    The Subcommittee met, pursuant to call, at 10:00 a.m., in 
Room 2141, Rayburn House Office Building, Tom Marino, [Chairman 
of the Subcommittee] presiding.
    Present: Representatives Marino, Goodlatte, Issa, Collins, 
Buck, Ratcliffe, Handel, Cicilline, Johnson of Georgia, 
Schneider, and Demings.
    Staff Present: David Flores, Chief Counsel; Slade Bond, 
Minority Counsel; and Andrea Woodard (Lindsey), Clerk.
    Mr. Marino. Good morning. The Subcommittee on Regulatory 
Reform, Antitrust and Commercial Law will come to order. 
Without objections, the chair is authorized to declare a recess 
of the committee at any time. I do not expect there to be votes 
before noon, so I think we should be fine.
    We welcome everyone to today's hearing on ``the Permitting 
Litigation Efficiency Act of 2018'' and ``the North Texas Water 
Supply Security Act of 2017.'' And I now recognize myself for 
an opening statement.
    Following the recession, it took until June 2014, 78 months 
after the prior jobs peak, or 6.5 years later, for even the New 
York Times to claim that we, as a Nation, had recovered all of 
the recession's job losses. Billions of Americans lost for 
years the ability to earn a living and support a family with a 
fulltime job. Americans were ready to work and employers were 
eager to create jobs.
    The problem was that government just would not get out of 
the way. One of the biggest ways government was too much in the 
way was in the tortuously slow Federal permitting of 
construction projects. One did not have to be a supporter or an 
opponent of the nearly trillion-dollar 2009 stimulus bill to 
recognize that it would not deliver enough recovery fast enough 
if the construction projects it sought to fund were not shovel 
ready. As President Obama famously remarked, too many projects 
were not shovel ready.
    Much of that failure is due to the Federal Government's red 
tape and obstruction, heavy permitting, and litigation system. 
In 2011, a study of proposed projects in just one sector of the 
economy, the energy sector, found that if a modest number of 
these projects were allowed to go forward and break ground, the 
direct and indirect economic benefits would be tremendous.
    An identified 351 project, if approved, could generate $1.1 
trillion and create 1.9 million jobs annually. But our 
permitting system for years has frustrated that kind of help, 
giving us instead overwhelming delays in administrative review 
and obstructive litigation, challenging worthy permits.
    By the end of 2015, Congress responded with desperately 
needed permit streamlining reform and title 41 of the Fixing 
America's Surface Transportation Act, commonly known as FAST-
41, but FAST-41 was only a start. It covered only certain 
categories of construction projects, and generally just those 
projects that required investments of $200 million or more. 
Moreover, FAST-41 was subjected to a 7-year sunset. That means 
that if, in just a few years, Congress does not extend them, 
all of FAST-41 reforms will be lost.
    Beyond question, there is more that needs to be done. My 
bipartisan bill, H.R. 5468, the Permitting Litigation 
Efficiency Act of 2018, is designed to meet that need, fairly, 
squarely, and simply. Whether or not 41 is extended, my bill 
sets a default rule for all permitting, that an agency that 
delays more than 2 years in granting or denying a permit 
application should be presumed to have unreasonably delayed in 
taking action on the application, subjecting the agency to 
liability in court, and enabling the court order it to get the 
job done. That 2-year rule is consistent with actions taken by 
the Trump administration to implement both FAST-41 and the 
president's own executive orders on permitting.
    My legislation also carries forward and extends to all 
permitting FAST-41's reforms, that require anyone suing to 
challenge an agency's ultimate decision, to sue promptly and 
sue only on the basis of arguments the agency had a chance to 
consider during its administrative process.
    This will bring to a definitive end the days in which anti-
growth, anti-permitting advocates can lie in the weeds during 
permit review, hiding arguments from the agency and then wait 
up to the full 6 years allowed by current law once a permit is 
finally granted before ambushing good-faith project developers 
with job-killing litigation. The Permitting Litigation 
Efficiency Act is short, simple, and balanced legislation to 
help make sure recent advances in permitting reform do not go 
up in smoke soon, but instead are advanced and entrenched.
    I look forward to our witness's testimony concerning my 
bill and the other bill we consider today, the North Texas 
Water Supply Security Act of 2017. That bill introduced by 
Representative Sam Johnson of Texas is consistent with my bill 
and highlights the need for reform to prevent the kinds of 
infrastructure crisis that North Texas and communities 
throughout the country could face without further legislation. 
The chair now recognizes my good friend, and ranking member 
from Rhode Island, Congressman Cicilline, who is, once again, a 
ranking member.
    Mr. Cicilline. Thank you, Mr. Chairman. Since 1970, the 
National Environmental Policy Act has saved time and American 
taxpayers money while also ensuring that major Federal actions 
that have a significant impact on the environment are safe and 
do not harm local communities.
    So whether the project is a new power plant or highway, 
this democratic framework ensures that concerned citizens, 
local businesses, and State and local governments have a voice 
and opportunity to be heard on the impact of Federal 
decisionmaking on their community. In enacting NEPA, Congress 
recognized that hardworking Americans deserve to have a say in 
how their taxpayer dollars are being used on major projects 
where they live.
    I am a strong advocate of making a comprehensive investment 
in our infrastructure, once the envy of the world, to create 
good paying jobs and expand economic opportunity by rebuilding 
our crumbling infrastructure. But this requires a serious plan 
and Federal resources, not a false tradeoff between an 
investment and making projects less safe, illuminating public 
input or harming local communities.
    There is ample nonpartisan evidence that delays in 
federally funded projects are due to inadequate funding, local 
opposition, insufficient agency resources, and project 
complexity, not environmental protections and safety 
guardrails.
    In 2002, the Nonpartisan Congressional Research Service 
reported that transportation project approval delays are not 
caused by NEPA. They are caused by, and I quote, ``Project 
funding levels, local opposition to a project, project 
complexity, or late changes in project scope,'' end quote, 
among other factors unrelated to NEPA.
    Dina Bair, who oversaw NEPA as the general counsel of the 
Council on Environmental Quality for over two decades under 
Republican and Democratic administrations similarly tested that 
the principle cause of delay in implementing permitting are 
inadequate agency resources, project complexity, changes in 
budget, and other factors unrelated to permitting procedures or 
judicial review in environmental permitting decisions.
    Nevertheless, under the guise of streamlining the 
permitting process, today's hearing concerns a pair of bills 
that will close the courthouse doors to local citizens, public 
interest organizations, businesses, and local government when 
attempting to seek judicial review of projects of Federal 
permitting decisions.
    The first of these is H.R. 4423, the North Texas Water 
Supply Security Act of 2017, which only applies to a single 
project in North Texas that has already received Federal 
permitting approval. This bill would block judicial relief for 
any person who has not already commented on this permit and 
would dramatically narrow the statute of limitations for filing 
cases related to this permit from 6 years to 2 months.
    In addition to my substantive concerns with this bill, I am 
somewhat stunned that we are considering a bill that would 
establish different rules for a single construction project 
that has already received Federal approval and is not subject 
to any lawsuits that we are aware of. This bill also raises 
serious federalism concerns regarding the judicial rights of 
State citizens concerning their access to water, a judicial 
right that should concern the citizens of Texas, not the 
Federal Government. If this bill is not a solution in search of 
a problem, I am not sure what it is.
    The second bill we will consider is a far more sweeping 
proposal, the Permitting Litigation Efficiency Act which was 
only introduced yesterday. This bill is designed to establish 
more sweeping limitations on the judicial review of permitting 
decisions required by law.
    Simply put, it would create special rules for environmental 
permitting projects on the administrative procedures act which 
Congress designed to ensure transparency, fairness, public 
participation, and access to justice in the regulatory system 
while placing a heavy thumb on the scales of justice in favor 
of regulated corporations. It does so by shortening the period 
for judicial review of these projects from 6 years to 6 months 
with limited exceptions.
    Second, it establishes expensive barriers to prevent any 
construction of a Federal permitting decision by requiring as 
much as a $5 million bond before a person can seek an 
injunction of a project that requires a Federal permit. This 
bonding requirement will apply to any party seeking a stay, 
including local governments, small businesses, and certain 
citizens and nonprofit organizations regardless of the merits 
of the case.
    Even worse, the bill would require costs to give this bond 
to defendants, regulated corporations, unless the court 
determines that the action was substantially justified. A 
standard that does not appear in current law is not defined by 
the bill.
    And lastly, the bill, in my view, unwisely disregards the 
balancing test the courts have long applied to determine 
whether to grant injunctive relief, and instead requires courts 
to conduct a lengthy cost-benefit analysis of the economic 
effects of providing relief, a lengthy and detailed analysis 
that courts are ill-equipped to conduct.
    Notwithstanding these concerns, I certainly thank our 
witnesses for appearing before us today, and I look forward to 
hearing your testimony on these matters. And with that, I yield 
back.
    Mr. Marino. Without objection, other members' opening 
statements will be made a part of the record.
    I will begin now by swearing in our witnesses before I 
introduce them. Would you please rise? Raise your right hand. 
Do you swear that the testimony you are about to give before 
this Committee is the truth, the whole truth, and nothing but 
the truth, so help you God? Let the record reflect that all the 
witnesses have answered in the affirmative. Please be seated.
    I am going to go through and introduce each one of you, and 
then we will get back to the questioning. So we will get that 
out of the way.
    Donald Elliott is professor of law at Yale Law School, and 
he is senior counsel at Covington and Burling, LLP and chair of 
the firm's environmental practice group. Prior to joining 
Covington, he was a partner in Willkie Farr and Gallagher, LLP, 
chairing the firm's worldwide environment, health, and safety 
department.
    Mr. Elliott also served as assistant administrator in 
general counsel at the U.S. Environmental Protection Agency. 
Mr. Elliott also testifies frequently in Congress on 
environmental issues and has served as a consultant on 
improving the relationship of law and science to the Federal 
Courts Study Committee, which was charted by Congress to make 
recommendations for improving the Federal courts, and to the 
Carnegie Commission for Law, Science, and Government.
    Mr. Elliott is a senior fellow of the Administrative 
Conference of the United States, and an elected member of the 
American College of Environmental Lawyers, as well as a member 
of the Boards of the Environmental Law Institute, the Center 
for Clean Air Policy, and NYU's Institute for Policy Integrity.
    He is the author or coauthor of seven books and has 
published more than 70 articles in professional journals. He 
earned his B.A. summa cum laude in Phi Beta Kappa, and his J.D. 
from Yale. Following graduation, he was a law clerk for Judge 
Gerhard Gesell of the U.S. District Court for the District of 
Columbia and for Chief Judge David Bazelon of the U.S. Court of 
Appeals for the District of Columbia Circuit. Welcome, sir.
    Mr. William Kovacs is a recently retired senior policy 
executive with over 40 years of experience in trade 
associations, government, and private law practice. His most 
recent position was senior vice president for Environment, 
Technology, and Regulatory Affairs for the U.S. Chamber of 
Commerce where he worked for 20 years and led the institution's 
regulatory reform efforts including advocacy for permit 
streamlining legislation.
    His prior positions include government service as a chief 
counsel for the House of Representatives, Subcommittee on 
Transportation and Commerce, Committee on Interstate and 
Foreign Commerce, Vice Chairman and Chairman of the Virginia 
Hazardous Waste Facilities Board, and partnerships in several 
Washington, D.C. law firms. He has written many policy and law 
review articles and produced several nationally recognized 
regulatory studies. He earned a J.D. from the Ohio State 
University College of Law, and a bachelor of science degree 
from the University of Scranton magna cum laude. We welcome to 
you, sir.
    Emily Hammond is the Glen Earl Western Research professor 
of law at the George Washington Law School. Professor Hammond 
previously taught at several universities including Wake 
Forest, the University of Oklahoma College of Law, the 
University of Texas, Florida State University, and the 
University of Georgia. Professor Hammond practices law with 
Bondurant--did I pronounce that right? Okay, good.--Mixson, and 
Elmore in Atlanta, Georgia. Professor Hammond's articles have 
appeared in numerous top-ranked journals, and she is the 
coauthor of one of the nation's leading energy law texts.
    She is an elected member of the American Law Institute, a 
chair elect of the Association of American Law Schools, 
Administrative Law Section, and a member scholar of the Center 
for Progressive Reform. She has served as a hearing examiner 
for State administrative proceedings and has provided service 
to the International Atomic Energy Agency. Professor Hammond 
earned her bachelor's degree from Virginia Tech and a J.D. from 
the University of Georgia. Welcome, professor.
    Mike Rickman is the deputy director of the North Texas 
Municipal Water District and has been employed with the 
district since October 2002. Mr. Rickman is directly 
responsible for the following district departments, water, 
wastewater and solid waste operations, environmental services, 
maintenance services, and information technologies.
    The district was created in the 1950s to provide wholesale 
treated water to the areas north and east of Dallas. The 
district has added wastewater treatment and solid waste 
disposal services in its service area. The district's current 
service area covers approximately 2,000 square miles and 
continues to grow. Prior to joining the district, Mr. Rickman 
was employed by the City of Dallas Water Utilities Department 
for 33 years.
    Before we go any further, I would like to recognize the 
chairman of the full Judiciary Committee for his opening 
statement, the gentleman from Virginia, Chairman Bob Goodlatte.
    Chairman Goodlatte. Thank you, Mr. Chairman. I appreciate 
your holding this hearing. America's voters sent the 115th 
Congress to Washington to do one thing above all others, help 
turn around this Nation's struggling economy. The Judiciary 
Committee has been doing everything it can to fulfill that 
mandate including on the regulatory reform front.
    In fact, with regard to the specific issue before us today, 
reform of America's outdated, slow-moving permitting system, 
the Committee made a big down payment on reform during the 
114th Congress, helping in the enactment of title 41 of the 
Fixing America's Surface Transportation Act. FAST-41 contained 
the biggest permit streamlining reforms in recent years. It has 
already begun to clear the logjams that have stood in the way 
of permitting decisions for many of the nation's largest 
proposed construction projects.
    The Trump administration has been working hard to implement 
FAST-41 as effectively as it can. Just this week, the 
administration's leading permitting agency signed a memorandum 
of understanding, committing to even more steps to reach 
quicker permitting decisions, including by agreeing to meet a 
2-year target for the issuance of decisions for large 
infrastructure projects. These reforms mean faster decisions 
and faster delivery of jobs and investment for projects that 
win a permitting green light. But there remains much work to be 
done.
    Good as it is, FAST-41 is scheduled by its own terms to 
sunset by 2022, unless Congress extends it. Further, FAST-41 
applied only to specific categories of the largest construction 
projects, those involving $200 million or more in investment. 
Many, many other projects still need permit streamlining 
reform.
    And in case FAST-41 is allowed to expire, it would be best 
if Congress legislated permitted streamlining reform applicable 
to all projects before FAST-41 sunset can arrive. The 
Permitting Litigation Efficiency Act of 2018, of which I am 
proud to be an original cosponsor, delivers precisely that 
reform. It establishes a strong incentive for permitting 
agencies to wrap up their permitting decisions for yea or for 
nay within 2 years.
    It also, like FAST-41, sets a prompt statute of limitations 
for lawsuits challenging those decisions, requires those suits 
to be based on matters actually presented to the permitting 
agencies during the administrative process, and assures that 
judges considering preliminary injunction requests in those 
cases will take into better account the economic potential and 
environmental harms of delaying project construction by 
injunctions. These are balance bipartisan and sorely needed 
reforms.
    The second bill we consider today, the North Texas Water 
Supply Security Act of 2017 is consistent with them and 
precisely highlights the concrete need for these kinds of 
reforms. That is because, under existing law, opponents of the 
urgently needed North Texas Water Supply Project can lie in 
wait for up to 6 years before suing, file suit on the basis of 
matters never presented to the relevant permitting agencies and 
seek preliminary injunctive relief.
    All of that could conspire to plunge North Texans into a 
water crisis that could be avoided if only litigation were 
required to be brought in a more timely manner on the basis of 
matters the agencies had a chance to consider during the 
administrative process, as the North Texas Water Supply 
Security Act requires.
    I urge my colleagues to consider these important pieces of 
legislation. I look forward to the testimony of our witnesses 
and I yield back the balance of my time. Thank you, Mr. 
Chairman.
    Mr. Marino. Thank you. Each of the witness's written 
statements will be entered into the record in its entirety, and 
I ask that each witness summarize his or her testimony in 5 
minutes or less.
    To help you, I think you are familiar with the lights. 
There will be a green light in front of you. When that green 
light switches to yellow, that indicates that you have a minute 
left. And when it switches to red, you have no time left. I 
will politely and diplomatically just sort of grab the gavel 
and give you a little hint that you should please try and wrap 
up.
    So please, Professor Elliott.

  STATEMENTS OF PROFESSOR E. DONALD ELLIOTT, YALE LAW SCHOOL, 
 SENIOR OF COUNSEL, COVINGTON AND BURLING, LLP; MR. WILLIAM L. 
     KOVACS, FORMER SENIOR VICE PRESIDENT FOR ENVIRONMENT, 
 TECHNOLOGY AND REGULATORY AFFAIRS, U.S. CHAMBER OF COMMERCE; 
PROFESSOR EMILY HAMMOND, GLEN EARL WESTON RESEARCH PROFESSOR OF 
  LAW, GEORGE WASHINGTON UNIVERSITY LAW SCHOOL; AND MR. MIKE 
 RICKMAN, DEPUTY DIRECTOR OF OPERATIONS AND MAINTENANCE, NORTH 
                 TEXAS MUNICIPAL WATER DISTRICT

                 STATEMENT OF E. DONALD ELLIOTT

    Mr. Elliott. Thank you very much, Mr. Chairman, Mr. Ranking 
Member, and distinguished members of the committee. I am 
appearing as private citizen not representing anyone, but I 
consider myself a lifelong environmentalist. And like the 
ranking member, I am a strong supporter of the National 
Environmental Policy Act.
    In my written testimony, I give some examples of how 
valuable it has been. And I certainly agree with that. I 
support the Permitting Litigation Efficiency Act precisely 
because I think we need those kinds of reforms in order to save 
NEPA, and not so much to save it from itself, but to save it 
from judicial interpretations that have gradually fed back into 
the agency process to make it unduly cumbersome.
    I have submitted, for the record, a report by an unbiased 
nonpartisan NGO Common Good called, ``2 Years, not 10 Years.'' 
And I think it comprehensively lays out the case for why we 
need the kinds of reforms that are in the legislation. Among 
other things, it shows that a number of other countries, 
including Canada and Germany, which are probably greener than 
we are, do a much better job of permitting and environmental 
review than we do. And I think that is true for most countries 
around the world.
    NEPA is an American invention. It has been a very 
successful invention. It has been copied in over 200 countries, 
but as often happens, countries that do something the second or 
third time are able to learn from the mistakes of their 
predecessors, and I think we need to go back and make the 
process more efficient.
    Now, having said that, NEPA works very well in about 90 
percent of cases. They go through pretty quickly with an 
environmental assessment that concludes that there are no 
significant environmental effects. The problem in my judgment 
comes with regard to the larger, more controversial projects 
which require an environmental impact statement. And 
unfortunately, I think NEPA has become a way for opponents to 
oppose projects and delay projects rather than really to 
improve environmental review, which was not the original 
purpose.
    As I state in my written testimony, my experience is that 
the review of environmental impact statements by the experts at 
the EPA under section 309 of the Clean Air Act is what really 
improves the quality of environmental impact statements, as 
well as the guidelines set by the Council on Environmental 
Quality.
    The costs of undue delay, which are caused by judicial 
review, fall into several categories. First of all, as the 
Common Good report documents, delaying a project by 6 years 
typically doubles its cost. And the Common Good report also 
documents that delays of public projects, not big business or 
private projects, but public projects alone have cost the 
United States more than $3.7 trillion, with a ``T.'' And that 
will be even greater if we go forward with the infrastructure 
reforms, but the costs are measured not just in money, but also 
in adverse environmental effects.
    For example, the decaying electrical infrastructure results 
in the equivalent of 200 coal-fired power plants. So if you are 
in favor of improving the environment, you have to be in favor 
of speeding up environmental review.
    The third cost, which is more subtle, is that because 
environmental review takes so long, particularly where there is 
an environmental impact statement, and particularly where there 
is opportunities for preliminary injunctions and judicial 
review, Congress is often tempted, reasonably, to exempt 
projects from NEPA.
    There are over 50 examples of where particular projects or 
even whole programs are exempted from NEPA, and therefore get 
no mandatory environmental review. The culprit is not public 
participation or environmental review. The culprit is the 
judicial review process, which has been tacked onto NEPA. There 
is no judicial review provision in NEPA.
    My last point is NEPA is really an exception to review 
under the Administrative Procedure Act. Under the 
Administrative Procedure Act, and I cite a Supreme Court case 
to this effect in my written testimony, it is generally not 
permissible for a single district judge to issue a preliminary 
injunction against a government agency. That is an exception 
that was created under NEPA because we did not realize early on 
that review was under the Administrative Procedure Act.
    So I support the reforms in the Permitting Litigation 
Efficiency Act, and I would be glad to answer any questions. 
Thank you, Mr. Chairman.
    Mr. Elliott's written statement is available at the 
Committee or on the Committee Repository at: https://
docs.house.gov/meetings/JU/JU05/20180412/108120/HHRG-115-JU05-
Wstate-ElliotE-20180412.pdf.
    Mr. Marino. Thank you. Mr. Kovacs.

               STATEMENT OF MR. WILLIAM L. KOVACS

    Mr. Kovacs. Thank you, Mr. Chairman, and Ranking Member 
Cicilline, and Members of the Committee. A lot of what is in my 
testimony I think you have already hit. But let me hit a few of 
the really key points.
    This Committee, in 2012, starting with Chairman Goodlatte 
and then Mr. Marino, were the ones who really started the 
permitting review process through the Rapid Act, and the 
discussion at that time, after numerous hearings, was really 
the debate between the environmental community and the business 
community.
    And the business community had a point, which is the 
permitting process takes too long for a lot of what Professor 
Elliott said, a lot of litigation, infinite reviews of every 
aspect of a deficiency in an EIS. And the environmentalists 
were very concerned that we were going to, in some way, gut 
NEPA, which was never the concern of the business community.
    The compromise that came out of this was a bill which did 
two things, which were really, I think, very important, and 
which were the basis for going forward. One is that they 
recognize that the substance of NEPA should stay intact. But if 
the problems with NEPA were truly structural in the sense that 
you could not get a study out in 2 years, or 3 years, or 5 
years, that what should happen is you leave the substance 
intact, but you put a structure around it to make sure that the 
agencies get it done. And that is what FAST-41 did.
    When we got to the Senate side, a lot of the provisions 
that were part of the House bill were picked up by both 
Senators Portman and McCaskill. And two of the provisions that 
were offensive to the environmental community, the automatic 
permitting, was taken out and the statute of limitations was 
moved, I think, from 150 days to 2 years. That was still down 
from 6 years. And that was the essence of the compromise, and 
that had the environmental community's support, and it had the 
business community's support.
    So, in that sense, you had a solid piece of legislation. In 
addition to FAST-41, you have WRDA and MAP-21. So you have 
highways covered, waterways and you have large infrastructure 
projects. There are a lot of other projects in the United 
States. In fact, OMB, when we were going through FAST-41, only 
estimated that there were about 200 large projects in the U.S., 
but you have thousands of projects moving forward at any one 
time, and that is one of the things that the Permitting 
Litigation Efficiency Act addresses.
    So, the two issues that are of concern right now; why you 
need this new law is, one, FAST-41 does expire in 7 years; in 
2022 it goes away. When it goes away, several things are going 
to happen. One is the structure, which actually gets the 
agencies to start up front and do the work that is needed is 
gone. And the work that is done up front, everyone is brought 
into the process.
    The States are brought in. The local communities are 
brought in. There is a timeline set. There is a continuous 
monitoring of the projects. There is responsibility in the 
sense of, if you are not going to meet the timeline, something 
has to be reported to the President. There is a dispute 
resolution process. You have the structure there.
    But the second thing, in addition to it going away is it 
only applies to projects that are $200 million or more. And so, 
what the Permit Litigation and Efficiency Act does, through 
very simple language, it defines what an unreasonable delay is 
and by defining what an unreasonable delay is, it, in effect, 
tells the agencies you have to act by the permit time or within 
2 years after the application is completed; and, two, it then 
picks up the statute of limitations and makes it uniform 
throughout the code, which is something that would really be 
extraordinarily helpful.
    So, with that, I think what you are finding that Congress 
has a choice. It can let FAST-41 expire, in which case we are 
going to have no time limits on environmental reviews. You are 
going to have a 6-year statute of limitations, which was never 
imposed by Congress. It was imposed, really, by the courts when 
they decided that there was judicial review.
    So, with that, I think that the Permit Litigation and 
Efficiency Act is a solid piece of legislation that frames 
ideas, and keeps the process going. If FAST-41 goes away or if 
the better alternative might be to make FAST-41 force permanent 
and then put in the Permit Litigation Efficiency Act for the 
remainder of the smaller projects. Anyway, thank you very much, 
and I look forward to questions.
    Mr. Kovacs' written statement is available at the Committee 
or on the Committee Repository at: https://docs.house.gov/
meetings/JU/JU05/20180412/108120/HHRG-115-JU05-Wstate-KovacsW-
20180412.pdf.
    Mr. Marino. Thank you. Professor Hammond.

                   STATEMENT OF EMILY HAMMOND

    Ms. Hammond. Thank you, Chairman Marino, Ranking Member 
Cicilline, and distinguished Members of the Subcommittee for 
the opportunity to appear before you again today.
    Amending a general statute like the Administrative 
Procedure Act to address a particular perceived problem is 
guaranteed to cause confusion in the courts, produce unintended 
consequences, and undermine the rule of law. I will provide 
examples in my testimony today.
    Turning first to PLEA, the bill suffers from an initial 
flaw in that its scope is entirely unclear. The bill applies to 
Federally required permits but does not define those terms. The 
closest definition is in section 5518 of the APA which provides 
that a license is a whole or a part of an agency permit, 
certificate, approval, registration, charter, membership, 
statutory exemption, or other form of permission. The APA does 
not define permit.
    So, PLEA creates confusion. Does it include all licenses, 
some subset of licenses? We do not know. Section II's 
presumption of unreasonable delay creates perverse incentives 
and is unnecessary.
    The first two subsections, which leave agencies to set 
schedules or resort to the default 2-year action deadline, 
creates a perverse incentive for agencies either to forego 
creating schedules altogether, the detriment of transparency 
and public engagement, or to schedule final action dates so far 
into the future as to be meaningless.
    These provisions are all the more problematic when compared 
to the cross-references in subsections A, B, and C. Those 
provisions are subject matter specific statutes that are 
already aimed at streamlining environmental permitting. They 
foster transparency. They acknowledge that agencies may lack 
the resources to complete permit reviews if they are 
insufficiently funded. They highlight the importance of public 
participation in the permitting process, and they promote 
agency coordination as a means of limiting red tape.
    These cross-reference provisions are superior to the bill, 
and only highlight the difficulties of using a general statute 
like the APA to address highly fact specific permitting issues.
    Section 2(c) of PLEA establishes a one-way ratchet in favor 
of regulated entities with its special statute of limitations, 
but even more concerning is the component of 2(c) that limits 
judicial review, only to matters that were included in the 
record of proceeding. That is already the law. It has been 
since 1943 in SEC v. Chenery Corporation, and it is also 
present in most agency statutory mandates. There are a few rare 
and necessary exceptions to the Chenery Rule that permits 
supplementing the record only very narrow, but important 
circumstances. These include cases in which an agency has 
failed to place all of the information upon which it has relied 
into the record.
    This also includes cases where relief, like a preliminary 
injunction, is at issue. In fact, the limitation in 2(c) would 
have the impact of forbidding courts from considering the vast 
scope of matters required by section 3.
    Section 3 is further flawed because its new standards for 
equitable relief invite a protracted, unmanageable, 
unpredictable judicial exploration of matters of the general 
economy. The current standard for equitable relief is 
sufficiently flexible to permit courts to tailor their 
considerations to the matters at hand.
    The bond requirement chills public engagement, and has 
grave Federalism implications. Read in conjunction with 
subsection E, the $5 million bond requirement amounts to a 
massive fee shifting provision that expects petitioners to 
gamble on unpredictable judicial outcomes. This chills more 
than public interest groups' access to justice. States and 
local governments frequently have a stake in Federal permitting 
decisions, especially those that implicate land or water use. 
These governments can no more afford the bond risk than can 
public interest groups if their participation in judicial 
review protects important Federalism ideals.
    Business competitors are also frequent petitioners before 
the courts. The bond requirement chills healthy competitive 
forces as well by weighting the scale in favor of a single 
permit applicant.
    The second bill is deficient for many of the same reasons 
as PLEA but, in addition, by retroactively changing the rules 
of engagement for a project that has already reached a full 
decision, the bill makes a mockery of the public participation 
that took place already and undermines the democratic 
legitimacy of the administrative process.
    I urge you to reject both of these bills, and I look 
forward to your questions. Thank you.
    Ms. Hammond's written statement is available at the 
Committee or on the Committee Repository at:  https://
docs.house.gov/meetings/JU/JU05/20180412/108120/HHRG-115-JU05-
Wstate-HammondE-20180412.pdf.
    Mr. Marino. Thank you. Mr. Rickman.

                 STATEMENT OF MR. MIKE RICKMAN

    Mr. Rickman. Chairman Marino, Ranking Member Cicilline, my 
name is Mike Rickman. I am the deputy director of the North 
Texas Municipal Water District, and we are located in Wylie, 
Texas, which is a suburb in the Dallas area.
    I appreciate the opportunity to testify today in support of 
H.R. 4423, the North Texas Water Supply Security Act of 2017. 
This legislation provides much needed, much needed limitations 
on judicial review and decisions and authorizations associated 
with the Lower Bois d'Arc Creek Reservoir. The district 
currently supplies drinking water to over 1.7 million people in 
the North Texas area, and is a service area that covers 2,200 
square miles. And to put that in perspective, that is a little 
bit larger than the State of Delaware.
    The area has some of the fastest-growing cities in the 
United States, and over the next 50 years we have water demands 
that are projected to be 1.5 times what they are today. We have 
a myriad of water supply reservoirs to meet the demands of this 
rapidly growing population. However, even with these resources 
and conservation programs that have been enacted to maximize 
the existing supplies, the district needs to develop new 
supplies.
    This reservoir project is critical, a critical component of 
the region's long-term supply plan. The reservoir is projected 
to cover approximately 16,000 acres and will provide 
108,000,000 gallons of water per day. The project is the only 
viable supply that can address the district's immediate water 
supply needs. It is essential that this water supply come 
online in 2022 to prevent having a water crisis in the area.
    To that end, the Corps of Engineers issued a 404 permit 
that allowed construction to begin on the reservoir. The permit 
was issued on February 2nd of this year. The 404 permit comes 
after approximately 15 years of the district's collaboration 
with Federal, State, and local officials to study the proposed 
reservoir, obtain the necessary State water rights permit, and 
perform the environmental reviews required under the 404 
permitting process.
    To date, the district has invested more than $164 million 
toward planning, permitting, engineering, and acquiring the 
land for the project. Construction of the project commenced 
earlier this month and is expected to be completed in 2022.
    Lower Bois d'Arc Creek Reservoir is the first reservoir to 
be permitted and built in Texas in over 30 years. I want to 
thank Congressman Sam Johnson for introducing H.R. 4423, and 
for Congressman John Carter, Jeb Hensarling, John Radcliffe, 
and Pete Sessions for their co-sponsorship. H.R. 4423 provides 
a critical protection for the Lower Bois d'Arc Creek Project. 
H.R. 4423 limits the judicial review of the 404 permit so this 
multi-million, multi-year, $1.6 billion project is not 
constrained by legal challenges.
    H.R. 4423 accomplished the goal in four ways. First, it 
limits who may challenge the environmental reviews. There have 
been numerous public meetings. There has been a draft EIS and a 
revised draft EIS, which both had public comment periods. So, 
limiting the standing is something that we think is reasonable.
    The second thing it does, it limits when the suit can be 
filed. Currently under the NEPA process, it can be filed 6 
years. So, that means that we could have the project completed, 
in service, and operational, and get a legal challenge that 
would not allow us to use that project. And with public funds 
being spent, we would continue to make payments on that project 
without having the ability to use it.
    Third, 4423 limits where the legal challenges can take 
place. We think it should be in the Eastern District of Texas 
where the reservoir is located.
    And fourth, it ensures that any Federal action for a 
temporary restraining order or injunction against construction 
or operation of the project that the court consider how 
critical this project is to the residents of North Texas.
    As you can see, 4423 does not completely circumvent the 
judicial process. If enacted, it prevents further unnecessary 
delays in critical water supply projects in the Federal courts. 
Therefore, it is imperative that the critical supply project be 
reasonably protected from frivolous legal challenges that have 
the potential to seriously harm the water supply.
    Thank you for the opportunity to comment. I would be happy 
to answer any questions.
    Mr. Rickman's written statement is available at the 
Committee or on the Committee Repository at: https://
docs.house.gov/meetings/JU/JU05/20180412/108120/HHRG-115-JU05-
Wstate-RickmanM-20180412.pdf.
    Mr. Marino. Thank you. The Chair now recognizes the 
chairman of the full Committee, Chairman Goodlatte, for his 
questioning.
    Chairman Goodlatte. Thank you, Mr. Chairman. Mr. Kovacs, 
FAST-41 was bipartisan legislation that you referred to 
containing good reforms. But it, unfortunately, has a 7-year 
sunset. Is not the legislation before us today, the Permitting 
Litigation Efficiency Act, generally consistent with the policy 
goals of FAST-41?
    Mr. Kovacs. Yes.
    Chairman Goodlatte. And if FAST-41 is allowed to sunset, 
but this legislation is enacted before it does, will the latter 
at least assure that a permanent base line of genuine permit 
streamlining reform, remain in place?
    Mr. Kovacs. Yes, it would be the default provision.
    Chairman Goodlatte. And if FAST-41 is made permanent, which 
is my hope, is there any reason to believe that the Permitting 
Litigation Efficiency Act could not remain in place as a good 
adjunct to it, providing permit streamlining for projects not 
covered by FAST-41?
    Mr. Kovacs. You are correct. They would actually work 
together. FAST-41 would take the projects over 200 million and 
the Permit Litigation Efficiency Act would take smaller ones.
    Chairman Goodlatte. Mr. Elliott, the Permitting Litigation 
Efficiency Act does not eliminate judicial review of NEPA 
claims. It just insists that they be brought in a more timely 
way, based on issues presented to the agency. I would like you 
to respond to some of the criticisms of Professor Hammond, and 
tell me: is it not more consistent with the original intent of 
NEPA because it allows permitting decisions to be made 
efficiently, and better assures that agencies actually are able 
to consider all of the relevant information during their 
initial reviews?
    Mr. Elliott. Yes, Mr. Chairman. I think it is. I do not 
believe that it would adversely affect the ability of citizens' 
groups to come in and raise issues during the administrative 
process in any way.
    With regard to the bonding requirements, when judges 
somewhat capriciously stay projects, issue preliminary 
injunctions, there are real economic costs. I give the example 
of the Atlantic Sunrise Pipeline, which was only stayed by a 
court for 3 days. But in that 3 days it put 2,500 people out of 
work for 3 days, and imposed $24 million of costs on the 
company that was promoting the project, and that is a real 
economic loss.
    I believe, in that case, it was an administrative stay that 
was issued by the clerk's office in the D.C. Circuit without 
even being looked at by a judge, based on my experience, having 
been a clerk on that court. So, I think it is important to make 
challengers think twice about the real economic harm they have. 
They can still challenge a NEPA statement. They just do not 
need to get a preliminary injunction that halts the 
construction of a pipeline and puts 2,500 people out of work. 
And this really builds on existing law. Bonding requirements 
already exist. This simply beefs it up and tries to make it 
more frequent.
    I would go farther. I think that preliminary injunctions 
and permanent injunctions under NEPA are inappropriate. We do 
not do that under the Administrative Procedure Act in any other 
area and, again, as I said in my opening summary, that was 
really based on a longstanding judicial mistake.
    Initially, we were not clear whether or not a judicial 
review under NEPA was under NEPA and, therefore, preliminary 
injunctions applied or under the Administrative Procedure Act. 
It is now clear it is under the Administrative Procedure Act, 
and we do not allow judges under the Administrative Procedure 
Act to issue preliminary injunctions in ordinary, 
Administrative Procedure Act cases.
    Chairman Goodlatte. Thank you. Thank you, Mr. Chairman.
    Mr. Marino. The chair recognizes the ranking member, 
Congressman Cicilline.
    Mr. Cicilline. Thank you, Mr. Chairman. Thank you again to 
our witnesses. Professor Elliott, I just wanted to start with 
you. You have previously written about something you described 
as ``regulatory ossification,'' a concept that you use to 
describe agencies that have been burdened by too many 
requirements such as inflexible procedural and analytical 
requirements in the rulemaking process, presumably to some 
unnecessary delay.
    And so, I wonder whether you still have that concern today, 
that agencies lack the resources, staff, and funding to achieve 
their statutory missions, and whether or not this inadequate 
funding and insufficient resources have an impact on the delays 
that you describe in environmental permitting?
    Mr. Elliott. I think all of that is true, but in my view, 
the primary problem is that these reviews have become too 
complicated as a result of what I call ``defensive medicine,'' 
or my friend, Philip Howard, calls ``leaving no pebble 
unturned.'' And what we need to do is to set deadlines that 
will require agencies to prioritize.
    There is never going to be enough funding to get into all 
of the very small details, and the incentives that are created 
by NEPA, and litigation under NEPA, are to find some issue, no 
matter how small, that has not been adequately considered, and 
then use that as a ground to stop a project.
    I ask my students sometimes: there is a case where----
    Mr. Cicilline. I do not mean to cut you off.
    Mr. Elliott. Okay, I will stop.
    Mr. Cicilline. I just have a limited amount of time. I 
want, Professor Hammond, I would ask if you would respond to 
that. Do agencies have the resources they need and the 
personnel to do the reviews that are required under NEPA?
    Ms. Hammond. No, they do not. They are underfunded and one 
of the problems with PLEA is that it does not account for that 
possibility, whereas, for example, FAST-41 does. So, again, we 
see this problem with using a general statute as a very awkward 
way to get at a specific problem.
    Mr. Cicilline. And would you, Professor Hammond, speak a 
little bit about how these bills, particularly the broad 
sweeping pieces of legislation, undermine public participation 
for Federal projects that affect local communities? I served as 
a mayor of Providence before I came to Congress, and the idea 
of silencing the voices of local officials in these important 
projects that have a tremendous impact on the local community 
is very alarming to me.
    Ms. Hammond. This is where I think that the $5 million bond 
requirement is, indeed, a terribly scary thing for any local 
government that might be wanting to participate in the process 
and see it through. And so, just seeing that number on the 
paper will chill a number of meritorious claims, and I think 
that is a significant problem with this bill.
    Mr. Cicilline. And, you know, one of the things that, and I 
mean, I guess part of this is whether or not you believe that 
public participation and community engagement on these major 
projects that require Federal permitting is a positive, net 
positive or net negative?
    The thing that concerns me in particular about the 
legislation is I think people already have a sense that, very 
often, their voices are not heard, that very often their voices 
are not heard, that the voices of ordinary citizens are not 
heard, and the powerful voices of corporate, special interests 
are taking precedence.
    And I would like your assessment as to whether or not you 
think that makes it more likely or less likely, as a result of 
this proposal?
    Ms. Hammond. I think it is more likely to be a problem. 
There are all kinds of social science research, legal research 
showing that when people have a voice that is heard, not only 
do we reach better decisions, but we have greater acceptance of 
the decisions that are made. That promotes community, as well 
as promoting necessary projects.
    Mr. Cicilline. And Professor Hammond, do you agree that 
there is a substantial amount of evidence out there that the 
delays for projects require Federal permits are a result of 
inadequate funding of agencies, a number of other factors 
unrelated to the permit, the permitting process?
    Ms. Hammond. That is correct. There are a number of causes, 
and underfunding and understaffing are major ones.
    Mr. Cicilline. My final question is the Permitting 
Litigation Efficiency Act also provides for the automatic award 
of a litigation bond to the defendant unless a plaintiff's 
claim was substantially justified. Are you aware of any similar 
requirements in current law, and do you believe that this is 
essentially a fee shifting requirement, which I think you 
already referenced? But are you aware of any other place that 
this happens in existing law?
    Ms. Hammond. I am not aware of any and, again, we heard 
this concern raised about the capriciousness of judges. There 
is no standard to define what should happen there, and it does 
look very much like a presumption in favor of fee shifting.
    Mr. Cicilline. Thank you. I yield back, Mr. Chairman.
    Mr. Marino. The chair now recognizes Congressman Handel 
from Georgia.
    Ms. Handel. Thank you, Mr. Chairman, and thank you to each 
of our witnesses for being here.
    I would like to start with Mr. Kovacs please. I come out of 
local government, a former county commissioner, chairman of 
that County Commission in Fulton County Georgia, and one of the 
things that I have seen with the NEPA process is extreme delays 
of very critical public projects, in addition to extreme delays 
on private projects. But, in particular, public, to the point 
where in my congressional district some jurisdictions have 
literally said, ``No, we do not even want to participate with 
the Federal Government around projects,'' and would rather go 
it alone.
    So, there was an original intent behind NEPA that the 
review process would be efficient, and that NEPA, itself, would 
not contain an authorization of judicial review. Is it fair to 
say that the Permitting Litigation Efficiency Act, which we are 
discussing today, rather than somehow undermining NEPA actually 
restores the NEPA process, and any time consumed by NEPA 
litigation more closely aligns with the original congressional 
intent?
    Mr. Kovacs. I think you are right because it does two 
things. The original congressional intent was just to consider 
the environmental issues. Through the course of years, which I 
think is where the problem has started, the courts decided to 
legislate, rather than Congress. And when the courts decided to 
graft on a private right of action they decided that, instead 
of looking at all of the large details to find out what the 
environmental issue was, they decided that everything was a 
deficiency in the process. And that is what extended it out.
    Now, when you get into the Permitting Litigation Efficiency 
Act that you are considering today, all it says is that you are 
going to do this in a shorter period of time. You are going to 
do it by the time of the assigned permit date for considering 
it, or if there is no unassigned date, you are going to do it 
within 2 years. And at that point in time, that is when 
litigation starts. So, the time limit is really something that 
Federal agencies right now have an obligation to meet. If they 
are not meeting it, there is no consequence. So, yes, I agree 
with you.
    Ms. Handel. One thing that I want to point out is that when 
local jurisdictions are teeing up various projects, before the 
funding component of it is even pursued, and the permitting 
process is even pursued, there is already a long, public 
comment period through the various regional commissions that 
exist, in my case, in Georgia, the Atlanta Regional Commission.
    So, is there anything in this new legislation that, from 
your perspective, in any way limits what would be done pre, to 
deciding what a project might be, from a public comment 
standpoint, and then, secondly, limiting public comment, in 
regard to the timeline?
    Mr. Kovacs. Absolutely nothing.
    Ms. Handel. Okay, thank you very much. And with that, I 
will yield back, Mr. Chairman.
    Mr. Marino. The chair recognizes the gentleman from 
Georgia, Congressman Johnson.
    Mr. Johnson of Georgia. Thank you, Mr. Chairman. Gosh, this 
is a pretty chaotic time that we are in. The Mueller 
investigation continues to get warmer and warmer. The U.S. 
Attorney for the Southern District of Georgia has procured and 
executed a search warrant for the hotel room, home, and offices 
of President Trump's lawyer. The President sits, beleaguered, 
thinking about pulling the trigger on an effort in Syria, a 
military effort, that could wind up involving the Russians. We 
have got a brand-new National Security Advisor, the third 
advisor, in this brand-new administration; just took the job on 
Monday, the same day that the Director or the Homeland Security 
Advisor resigned. It just looks like total chaos around here.
    Now, Mr. Rickman, we have a process that has been in place 
to ensure that the Federal Government follows its own 
environmental laws, but this bill would create an exception for 
just one project. Do you believe that Congress should be 
spending its precious time favoring one parochial project over 
another?
    Mr. Rickman. I think Congress should be addressing the 
issue of what it takes to permit a project of this size and 
scope, and that once you go through that almost 15 years of 
permitting, you need something to shorten that process.
    Mr. Johnson of Georgia. I understand that this is an issue 
of grave importance to you, but there are so many other issues 
that appear to be of importance that this committee should be 
looking at, and it is my opinion that we have a lot of things 
that take precedence and priority over this local issue.
    But let me move to Professor Elliott, and thank you for 
your response, Mr. Rickman.
    Mr. Elliott, you are a published author; 7 books, 70 
articles, including one that is entitled, ``Why Punitive 
Damages Do Not Deter Corporate Conduct Effectively.'' Do you 
still support the premise of that article that you wrote?
    Mr. Elliott. Yes.
    Mr. Johnson of Georgia. And you have spent your entire 
career defending big corporations, have you not?
    Mr. Elliott. Not entirely, no.
    Mr. Johnson of Georgia. Well, you have done some teaching 
in addition to that. I will give you that.
    Mr. Elliott. I was general counsel of EPA.
    Mr. Johnson of Georgia. And a very corporate friendly EPA.
    Mr. Elliott. I do not know about that. We passed the 1990 
Clean Air Act amendments when I was there. I think that the 
first Bush administration, Bush 41, was really to the left of 
the Clinton administration.
    Mr. Johnson of Georgia. I tell you. It was certainly to the 
left of Scott Pruitt and----
    Mr. Elliott. I am not going to comment on that.
    Mr. Johnson of Georgia. My hat is off to you. Do you 
believe that a $5 million bond to bring a case will create a 
perversion of the legal system, and make courtrooms available 
only to the wealthy?
    Mr. Elliott. Yes, but, of course, that is not what this 
bill does.
    Mr. Johnson of Georgia. Well, that is the effect of this 
bill.
    Mr. Elliott. No, no, that is not right.
    Mr. Johnson of Georgia. How can it not be right?
    Mr. Elliott. Well----
    Mr. Johnson of Georgia. If the legislation that you are 
here to testify about today gives judges the authority to order 
a litigant to post up to a $5 million bond before the 
litigation can proceed, recognizing that we are packing the 
courts with right wing, corporate friendly, antiregulatory 
judges?
    Mr. Elliott. Well, thank you for that question, which I 
think really goes to the heart of the matter. The bond only 
applies, as I understand it, if the challenger seeks to enjoin 
the project, and it would be perfectly----
    Mr. Johnson of Georgia. That is exactly what----
    Mr. Elliott. May I finish my answer?
    Mr. Johnson of Georgia. That is the kind of litigation that 
we need to protect harms to the public. Now professor----
    Mr. Elliott. But if all of these States----
    Mr. Johnson of Georgia. And my time is limited, Professor 
Elliott. Let me go to Professor Hammond.
    Mr. Elliott. So is mine.
    Mr. Johnson of Georgia. I understand, but I appreciate you 
being here, too. Professor Hammond, how will this legislation 
chill the ability of litigants to bring actions to protect the 
health, safety, and well-being of Americans?
    Ms. Hammond. If I may respond. The $5 million bond does 
give this discretion to judges. It is scary. It will chill 
litigation. We can expect only those who can afford it to come 
to court, further marginalizing all of the voices that do have 
an interest in what happens with these projects.
    Mr. Johnson of Georgia. I thank you, and I am at the end of 
my time. I yield back.
    Mr. Marino. The chair now recognizes Congressman Ratcliffe 
from Texas.
    Mr. Ratcliffe. Thank you, Mr. Chairman. I would like to 
thank all the witnesses for being here today and I am grateful 
for the opportunity to speak in support of the North Texas 
Water Supply Security Act as one of its original cosponsors.
    I want to thank all my North Texas colleagues for all of 
their hard work and time and effort on this bill over a 
considerable period of time, specifically its sponsor, 
Congressman Sam Johnson. Mr. Chairman, at this point I would 
ask a unanimous consent to submit a statement in support of 
this bill from Congressman Johnson.
    Mr. Marino. No objection.

    [Note.--This material is available at the Committee or on 
the Committee Repository at: https://docs.house.gov/meetings/
JU/JU05/20180412/108120/HHRG-115-JU05-20180412-SD004.pdf.]

    Mr. Ratcliffe. I want to start out with comments from my 
friend, Mr. Johnson from Georgia. Mr. Rickman, he talked about 
the specific project, the Lower Bois d'Arc Creek Project and 
questioned whether or not Congress should be spending its time 
on a local issue that is just important to you. North Texas 
Municipal Water District services how many North Texans?
    Mr. Rickman. One-point-seven million.
    Mr. Ratcliffe. And without this legislation that we are 
considering today, and the resources that it will allow North 
Texas Municipal Water District to supply to those 1.7 million, 
at what point does North Texas Municipal Water District become 
unable to service 1.7 million Texans?
    Mr. Rickman. Currently, the projections are showing in 2021 
or 2022 that we would not be able to support the population 
that is projected to be there.
    Mr. Ratcliffe. I would submit that 3 years is not a long 
period of time, and it is not a trivial matter, and every 
member of Congress that has time to devote to this issue should 
do so. So, I thank you for being here to speak to this specific 
issue. With the Lower Bois d'Arc Creek, we saw an environmental 
review process take longer than usual, and that was due 
essentially to delays and the environmental impact statement 
having to go through a number of revisions, correct?
    Mr. Rickman. That is correct.
    Mr. Ratcliffe. What is your opinion on the harm that is 
caused by delays in the environmental review process on 
important projects like Lower Bois d'Arc?
    Mr. Rickman. The issue that you have to address is the 
timeliness and the cost. The timeliness meaning that the 
process of going through the environmental impact statement, 
getting that prepared, submitting it for public comment, and in 
this case, we had to have a draft EIS and a revised draft EIS, 
which took over 2 years. The result of a Federal agency not 
liking the type of testing that was taking place in the field, 
although they had agreed to it up front. The second part of it 
is the cost associated with that. The delay was a little more 
than $25 million in cost.
    Mr. Ratcliffe. And again, I know you have testified to 
this, but the permitting process here for the Lower Bois d'Arc 
Project has taken 15 years, correct?
    Mr. Rickman. The actual permit for the 404 permit was filed 
in June of 2008, but we had spent several years prior to that 
working with the Federal agencies getting the application 
prepared correctly.
    Mr. Ratcliffe. And do you think 15 years is an appropriate 
period of time for people to have the opportunity to raise 
issues with the permitting agencies for a project like this?
    Mr. Rickman. Absolutely. There were numerous public 
meetings at the State, Federal, and local level.
    Mr. Ratcliffe. And yet currently, despite the 15 years to 
raise those concerns under the current law, they would have an 
additional 6 years to interrupt the project with an injunction 
or a temporary restraining order, correct?
    Mr. Rickman. That is correct.
    Mr. Ratcliffe. So, North Texas Municipal Water District 
could move forward with this project, get it 95 percent 
complete, and someone could theoretically, under the current 
state of the law, despite having 15 years prior, stop this 
project and North Texas Municipal Water District's ability to 
service those 1.7 million Texans relying on that water supply, 
correct?
    Mr. Rickman. That is accurate, and there is no viable 
option out there to get something to replace this in the short 
term.
    Mr. Ratcliffe. Mr. Rickman, thank you again for speaking on 
this issue and again, I would like to encourage all my 
colleagues to support this legislation. With that I yield back.
    Mr. Marino. The chair now recognizes the gentlewoman from 
Florida, Congresswoman Demings.
    Ms. Demings. Thank you so much, Mr. Chairman, and thank you 
to all of our witnesses for being here. Ms. Hammond, I would 
like to start with you. We have heard a lot of talk about 
judicial review actually undermining the original intent of 
NEPA, but what effect will limiting judicial review have on 
local economic interests like those of small businesses, in 
your opinion?
    Ms. Hammond. Well, those are the very small businesses that 
may have an interest in seeking judicial review and so, if it 
is limited, once again, they cannot make their voices heard. 
This is both in inherent limitations in the way the statute is 
set up, and again, in the bond requirement.
    Ms. Demings. You know, I also come from local government 
and I do believe that public participation is not only 
important, but it is necessary, and we have talked a bit about 
it, but let's talk about it a little bit more. Are you 
concerned that the proposed bill will undermine public 
participation for Federal projects that affect local 
communities?
    Ms. Hammond. Yes. It does do that. I should note that it is 
already the law that any issues that are raised in litigation 
must have been raised before an agency. What this bill does is 
appear to restrict that even further to cut off the ability to 
raise further arguments to judges that the agency did not do 
their job properly, despite comments raised. That final check 
of judicial review is a key part of not just making sure that 
agencies exercise their power properly but giving voice to 
those who would participate.
    Ms. Demings. Thank you so much, professor. Mr. Kovacs, you 
have argued that the major causes of delays in Federal 
permitting is the mandate to conduct environmental reviews 
under NEPA. Of the many, many Federal actions undertaken every 
year, about how many require an environmental assessment in the 
first stage of the NEPA approval process, would you say?
    Mr. Kovacs. Actually, I have never said that the mandate to 
do the environmental impact statement caused any harm at all. 
It should be done. What I have said is that what the dispute is 
over, if the mandate is to stay, then the problem is timing, 
and you can put a structure around timing. So when you get into 
the public participation requirements bringing the State and 
local governments in, but you do it in a coordinated way up 
front so that you can meet the time deadlines. That is what 
FAST-41 does.
    Ms. Demings. Okay, and roughly how many would you say?
    Mr. Kovacs. In the course of a year, I am going to say 50, 
60, 70.
    Ms. Demings. It is not a great number.
    Mr. Kovacs. Out of the thousands, most of them go either 
through a categorical exclusion or through an environmental 
assessment.
    Ms. Demings. So, would you say only the largest projects 
would require that type of thing?
    Mr. Kovacs. Well, that is why FAST-41 was limited to the 
projects over $200 million because that seems to be where the 
bottleneck would come about.
    Ms. Deming. How many of the transportation projects, again, 
very concerned about local issues, how many of the 
transportation projects would you say are subject to a full 
NEPA review?
    Mr. Kovacs. The best statistics I have is that when 
Congress enacted MAP-21, the time for a transportation project 
based on the MAP-21, which is different than FAST-41, was cut 
in half, and that is a DOT study. And then if you look at the 
Recovery Act, which was the Barrasso-Boxer amendment where they 
said all projects are to go in the most expeditious route 
possible, out of the 192,000 projects, only 841 went through a 
full environmental review. So, it gives you an idea. It is a 
very small percentage.
    Ms. Demings. About 3 percent, would you say? It is pretty 
small?
    Mr. Kovacs. You are probably better at math than I am.
    Ms. Demings. Small percentage.
    Mr. Kovacs. It is small. It is not a lot.
    Ms. Demings. Okay. I just have one more question in my less 
than 50 seconds. You know, these are very important issues, and 
I know that I want to get it right. It is important to our 
local communities.
    Professor Elliott, my colleague, who ran out of time, and 
it just concerns me. When he said that his time was limited, he 
was referring to the 5 minutes that the chairman gives him that 
he has to control; 5 minutes is not much time to ask for 
witnesses. These are critical questions so we can get it back. 
So, he was referring to that.
    I know you have done some outstanding work, but I am 
interested, just for my own personal edification. When you said 
your time was limited what exactly were you referring to?
    Mr. Elliott. The same thing that he was.
    Ms. Demings. You were concerned about the 5 minutes that he 
had to control?
    Mr. Elliott. Right. I was not allowed to answer his 
question because his time was expiring.
    Ms. Demings. But you do understand that he controls the 
time, right?
    Mr. Elliott. Yes.
    Ms. Demings. Okay. All right.
    Mr. Elliott. Yes, I do, and that is why I shut up.
    Ms. Demings. Thank you, and with that, I yield back, Mr. 
Chairman. Thank you so much.
    Mr. Marino. I think everybody understands the rules here. 
The chair now recognizes Congressman Buck from Colorado.
    Mr. Buck. Thank you, Mr. Chairman, and I yield to as much 
time as the young lady from Florida would like if she has any 
further questions that she would like to ask.
    Ms. Demings. I appreciate that. I appreciate your 
willingness to do that, but I am complete. So thank you very 
much.
    Mr. Buck. You bet. Are any of you familiar with the 
Northern Integrated Supply Project in northern Colorado? It 
does not look like it. You are, Mr. Rickman?
    Mr. Rickman. I know the name and I am aware of the project.
    Mr. Buck. Okay.
    Mr. Rickman. But I do not know much about it.
    Mr. Buck. Well, it just seems like this is a recurring 
theme that many Members of Congress hear about, and it is a 
concern really to all of us. There is no profit incentive in 
government, and there should not be necessarily a profit 
incentive in government, but we cannot allow these issues to 
drag on and on.
    There were a dozen communities in northern Colorado, fairly 
small towns, that got together to develop a water project. They 
started 20 years ago. The five acres of land was wetlands and 
so, the Federal Government had jurisdiction. The Army Corp of 
Engineers had jurisdiction. It continued on and on.
    There are two projects, actually, in Colorado. One is the 
Chatfield Reservoir that was only filled half way, and they 
wanted to fill it two-thirds of the way for drinking water for 
the Denver area. It has been 20 years now since that started.
    My question to all of you really is, and Mr. Rickman, we 
can start with you. Do you understand the concern that we have 
and the need for legislation and what we are trying to do here 
in Congress? Balance interest. Not just take one side of this 
issue but really, how do we protect the environment at the same 
time that we try to speed this process up so we do not bankrupt 
communities that are trying to develop drinking water?
    Mr. Rickman. Absolutely we understand it. The organization 
we work for; we are an environmental organization. We look at 
the environment. We protect the environment, but we also 
understand the need that we cannot predict and cannot control 
the population coming into our area, and we have to have water 
there and be available for public health and safety, unlike a 
highway. A highway you can have traffic jams, but water is for 
public health and safety and it takes much longer to develop.
    Mr. Buck. And Professor Hammond, I guess the critical issue 
in my mind is in northern Colorado there are two alternatives. 
One, we can develop water. We send more water out of the State 
than we are required to based on the compacts that we have. So, 
we can develop water projects or municipalities, and they have 
done this; buy farms. Take the water off the farms and let the 
farms dry up, and that has a huge environmental impact in 
drying up farms. We end up with dust bowls in areas, and if 
that continues, because of the growing population in Colorado, 
that has a serious environmental impact. So, there is no real 
good answer here if we do not move this process along more 
quickly. Your thoughts?
    Ms. Hammond. It is absolutely fair to ask agencies to move 
as expeditiously as possible provided we also are asking them 
to do a good job, and it is a difficult thing to balance.
    Mr. Buck. And the agencies do not have unlimited resources. 
We just cannot throw a ton of money at this situation and say, 
here is another hundred people. Go do the job.
    Ms. Hammond. That is right, and that is why PLEA is 
problematic. Because it does not recognize that agencies do 
have those barriers to moving expeditiously and to doing that 
good job. It slaps a very large Band-Aid on a much more 
particular problem that is addressed in FAST-41.
    Mr. Buck. Okay. Mr. Kovacs, any thoughts?
    Mr. Kovacs. Well, whether you are a Republican or a 
Democrat, one thing for years that I have heard, is I have got 
this project in my district and how do we get it to move? And 
one of the balances that was so important in FAST-41 is that it 
recognized all the public participation has to come in, but it 
has to come in in a coordinated way and in a timeframe so that 
the agency can do it.
    Second, by limiting FAST-41 to the $200 million and above 
projects or those projects that have many multiple agencies 
involved, it is limited to roughly about 200 projects in the 
country, but they are the largest projects. It said we are 
going to put our resources on these to get these out the door. 
The reason that the Permit Litigation Efficiency Act is so 
important is that it shortens the statute of limitations and 
extends the definition of what is unreasonable delay to the 
smaller projects so that they have some of the benefits of 
FAST-41, since they cannot get all the benefits.
    Mr. Buck. Great. Professor Elliott, just a little time 
left. Any thoughts?
    Mr. Elliott. I think the most important part is setting 
deadlines, which then sets priorities. It is not just a matter 
of funding but setting priorities. I think it is very important 
to understand that the bonding requirement applies to seeking 
an injunction to shut down a project does not close the 
courthouse to anyone. They can do it just the way they do in 
other cases, and that is get a final judicial opinion before 
they seek to shut down a project.
    Mr. Buck. Great. Well, thank you very much for all of you 
being here. I appreciate it very much. Yes. I yield back.
    Mr. Marino. Thank you. I have a couple questions to finish 
up. Mr. Elliott, I do not think there is anybody in this room 
that does not like clean air and clean water. I live out in the 
country, and I get my water from a well behind my house while 
watching a bear and a deer go through my property in the woods, 
and they are taken very seriously. And everyone should be 
concerned about our environment. But can you provide me with 
some examples concerning what the long delays in permitting 
review can actually end up perpetuating real environmental harm 
caused by existing infrastructures?
    Mr. Elliott. Certainly, Mr. Chairman. I have given a number 
of examples in my testimony, but as a general matter, new 
infrastructure is cleaner and more environmentally conscious 
than the old infrastructure that it replaces. So, when we delay 
new infrastructure by looking unnecessarily at very small 
issues that really do not go to the environmental benefit of a 
project, part of the cost is that the environmental benefit of 
the project is deferred. That is a general answer to the 
question, but there are lots and lots of examples, some of 
which I have given in my testimony.
    Mr. Marino. I can give an example, too. There is an 
electric coal-fired plant in my district that spent millions of 
dollars on scrubbing the exhaust. The whole nine yards. They 
switched over to natural gas. It took years. Cost them tens of 
millions of dollars because of the permitting process, but 
finally, in about another month, that is going to go online. 
So, there could have been significant cost reductions there if 
we did not have to wait for the years and years that it took to 
get the permitting process through.
    Mr. Kovacs, in your estimation, you talked about jobs could 
be created and how fast those jobs would become reality. Could 
you expand on that a little bit, please?
    Mr. Kovacs. I am sorry. Could you repeat the question?
    Mr. Marino. Yes. Yes. You talked a little bit early on 
about jobs and how those jobs are created. Could you expand on 
that and how soon they would be created?
    Mr. Kovacs. Sure. You know, if you are building a project--
and Project No Project, which was the study I think you 
probably are referring to--if you looked at the number of jobs 
that would be created by the various projects, it was 1.1 
million jobs just during the construction period.
    So, every project is going to create jobs, and the good 
part about the Permit Litigation Efficiency Act that you are 
considering today is that in the history of the United States, 
until FAST-41 when a court was looking to impose an injunction 
or being asked to impose an injunction, it looked at the 
environmental benefits, but it never looked at the job 
benefits. Right now, what would happen is the court would have 
to look at not only the environmental benefits but also, the 
impact on jobs of the community.
    Mr. Marino. Okay. Professor Hammond, you talked about your 
emphasis on access to justice in your written testimony, and I 
support access to justice. I was a prosecutor for 18 years so, 
I really know both in the State and the Federal system. But 
what about quick access to water supply or replacement of 
bridges, of roads that we are running into? Plants, housing 
projects are going to go up that just take endless amounts of 
time to get a permit, and then at the last moment when the 
permit process is almost done, somebody runs in and says there 
is an environmental issue in here.
    Do you not think that they should be brought early on 
instead of waiting in that I do know that there are groups out 
there that wait until the last day and then file?
    Ms. Hammond. They already must raise environmental issues 
before the permitting agencies, before those permits can issue 
if they plan to also seek consideration of those issues in 
court. The issue in court is to say that the agency did not do 
its job, which is something we should ask of our government in 
addition to asking it to move as quickly as it reasonably can 
on projects.
    Mr. Marino. There is a reasonable presumption there before 
the court and the agency can address that issue immediately.
    Ms. Hammond. I am sorry, sir?
    Mr. Marino. There is a reasonable, rebuttable presumption 
that the agency can raise immediately in the court if they feel 
that there is something that they missed concerning litigation. 
Do you not agree with me on that? The agency certainly can come 
in and address that issue immediately without waiting to the 
end of the period or some environmental agency coming in and 
saying, well, we have a problem here now.
    Ms. Hammond. That is right. That is why we already ask 
people to raise the issues there before the agency. Sometimes 
the agency does not do it.
    Mr. Marino. That is what I would like to see. If there are 
environmental issues, let's raise them early on so we can 
address it, and I know you have an issue about the $5 million 
bond, but then again, that is discretionary. That is up to the 
court, correct?
    Ms. Hammond. It is discretionary, but it is certainly a 
large and chilling number.
    Mr. Marino. Well, the judge cannot impose that at all or 
lower that significantly, correct? I have clerked for Federal 
courts.
    Ms. Hammond. One can make that argument, but one certainly 
has to be fearful of the risk that they are taking with the 
capriciousness of a particular judge in a given situation. And 
I should note, this is for injunctions because you cannot put 
the environment back.
    Mr. Marino. Yes. Yes, but also, how about the 
capriciousness of a judge that just simply says, look? Okay. I 
am going to grant this injunction and we are going to slow this 
project down. So, you know, you can make that argument. I can 
make this argument. We certainly want our environment to be 
clean, and I am right out there with everybody on that, but we 
have to get these permits done to create jobs. Thank you very 
much. I appreciate you all being here.
    Without objection, the following items will be made a part 
of the record: A letter of support by the U.S. Chamber of 
Commerce for the Permitting Litigation Efficiency Act of 2018 
and the administration's new interagency memorandum of 
understanding on permitting, which sets a goal of 2 years for 
completion of permit review for major infrastructure projects.
    These materials are available at the Committee or on the 
Committee Repository at: https://docs.house.gov/meetings/JU/
JU05/20180412/108120/HHRG-115-JU05-20180412-SD002.pdf.
    Ms. Demings. Mr. Chairman.
    Mr. Marino. Yes.
    Ms. Demings. Thank you for that recognition. I ask a 
unanimous consent to insert into the record a letter from 
several groups, including the American Association of Justice, 
The Center for Biological Diversity, Center for Justice and 
Democracy, Earth Justice, and several others that could not be 
with us today, but certainly have grave concerns about the 
legislation we are discussing today.
    Mr. Marino. Without objection, all the above requests will 
be entered as part of the record.
    These materials are available at the Committee or on the 
Committee Repository at: https://docs.house.gov/meetings/JU/
JU05/20180412/108120/HHRG-115-JU05-20180412-SD003.pdf.
    Ms. Demings. Thank you.
    Mr. Marino. This concludes our hearing. I want to thank all 
the witnesses for being here. I am speaking for all of us. I 
know we learn from you when you take the time to travel here 
and have discussion with us. I know I, personally, learn a 
great deal every time I leave one of our hearings and other 
hearings that I sit in, and my door is always open. You always 
have the invitation to come and visit, and to send me 
information that you would like us to have so we understand all 
points in these issues.
    I was involved some time ago in trying to get a bypass put 
in my district which was on the board for 60 years for a myriad 
of reasons. Well, the first thing I did was get everybody in 
the same room; the Feds, the States, and the locals, and I 
asked them: Did you ever meet before to sort out these issues? 
They said, no.
    Construction started a couple of years ago, thousands of 
jobs, and in 8 years there is going to be a completion of some 
beautiful highway that is going to be safer for our drivers and 
create more business for the establishing stores that are in 
operation around it for people to get in and out.
    I know when my wife says to me, let's go down to the mall, 
I say, ``No, no, no. I have got to go through all that traffic. 
Please do not make me do that.'' But this will make it more 
efficient.
    We are adjourned and thank you all very much for being 
here.
    [Whereupon, at 1:03 p.m., the Subcommittee adjourned.]