- TXT
-
PDF
(PDF provides a complete and accurate display of this text.)
Tip
?
114th Congress } { Rept. 114-228
HOUSE OF REPRESENTATIVES
1st Session } { Part 1
======================================================================
RESPONSIBLY AND PROFESSIONALLY INVIGORATING DEVELOPMENT ACT OF 2015
_______
July 27, 2015.--Ordered to be printed
_______
Mr. Goodlatte, from the Committee on the Judiciary, submitted the
following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 348]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 348) to provide for improved coordination of agency
actions in the preparation and adoption of environmental
documents for permitting determinations, and for other
purposes, having considered the same, reports favorably thereon
without amendment and recommends that the bill do pass.
CONTENTS
Page
Purpose and Summary.............................................. 2
Background and Need for the Legislation.......................... 2
Hearings......................................................... 12
Committee Consideration.......................................... 12
Committee Votes.................................................. 12
Committee Oversight Findings..................................... 18
New Budget Authority and Tax Expenditures........................ 19
Congressional Budget Office Cost Estimate........................ 19
Duplication of Federal Programs.................................. 22
Disclosure of Directed Rule Makings.............................. 22
Performance Goals and Objectives................................. 22
Advisory on Earmarks............................................. 22
Section-by-Section Analysis...................................... 23
Changes in Existing Law Made by the Bill, as Reported............ 26
Dissenting Views................................................. 38
Purpose and Summary
H.R. 348, the ``Responsibly And Professionally Invigorating
Development Act of 2015'' (``RAPID Act'') fosters job creation
and economic growth by amending the Administrative Procedure
Act to establish a more streamlined and transparent Federal
permitting process for construction projects. The legislation
builds on earlier, more limited steps to streamline the
permitting process and responds affirmatively to the call of
the President's Council on Jobs and Competitiveness to
streamline permitting further.
Background and Need for the Legislation
Delays in the Federal permitting process have caused
gathering concern in recent years. During the 112th Congress,
the President's Council on Jobs and Competitiveness highlighted
improvement of the Federal permitting process as one of its top
recommendations for improving job creation and economic growth.
The key to improving the Federal permitting process is not
difficult to identify. As witnesses stated before the
Subcommittee on Courts, Commercial and Administrative Law
during the 112th Congress, ``[t]he problem at hand is the
increasingly undue length of time it takes to conduct a
[National Environmental Policy Act (NEPA)] review of a proposed
project, be it public or private, that relies on Federal funds
or approval of some kind.''\1\ ``The Hoover Dam was built in 5
years. The Empire State Building took 1 year and 45 days. The
New Jersey Turnpike needed only 4 years from inception to
completion. Fast forward to the present day, and the results
are much different. Cape Wind has needed over a decade to find
out if it can build an offshore wind farm. Shell Corporation is
at 6 years and counting on its permits for oil and gas
exploration in Beaufort Bay. And the Port of Savannah, Georgia
has spent 13 years reviewing a potential dredging project, with
no end to the review process in sight.''\2\ ``[T]he Congress
and President of 1969 never intended that an environmental
impact statement process--a statement, mind you--would devolve
over time into a multiyear incredibly arcane thicket of rules,
huge reports, and constant court fights in which any project of
importance to the Nation or a State that has some kind of
Federal hook attached would likely be delayed.''\3\ ``[W]hen
Congress was debating the issue, they were talking about time
frames like 90 days. In 1981 [the Council on Environmental
Quality] thought it could all be done in a year.''\4\ A recent
study found that the average length of time to prepare an
Environmental Impact Statement (EIS) is 3.4 years and gets
longer each year, making the problem worse and worse.\5\
---------------------------------------------------------------------------
\1\Responsibly And Professionally Invigorating Development (RAPID)
Act of 2012: Hearing before the Subcomm. on Courts, Commercial and
Administrative Law of the H. Comm. on the Judiciary, Serial No. 112-99,
112th Cong. (Apr. 25, 2012), (hereinafter ``RAPID Act Hearing I'') at
61 (Testimony of Gus Bauman).
\2\Id. at 43 (Testimony of William Kovacs).
\3\Id. at 61 (Testimony of Gus Bauman).
\4\Id. at 39 (Testimony of William Kovacs).
\5\See Piet deWitt & Carole deWitt, ``How Long Does It Take to
Prepare and Environmental Impact Statement?,'' Environmental Practice
10, pp. 164-174 (Dec. 2008).
---------------------------------------------------------------------------
The RAPID Act was designed to respond to this need for
reform. The majority of its provisions streamline the
administrative review procedures agencies must use before they
issue final permitting decisions. In addition, the legislation
requires those who challenge final decisions in court to have
made their arguments first during the administrative process
and to file their litigation within 180 days of the challenged
decision.
A. DELAYS IN FEDERAL PERMITTING FOR CONSTRUCTION PROJECTS AND THE NEED
FOR PERMIT STREAMLINING REFORMS
1. LThe National Environmental Policy Act of 1969
The National Environmental Policy Act of 1969 (``NEPA'')
``declares that it is the continuing policy of the Federal
Government, in cooperation with State and local governments,
and other concerned public and private organizations, to use
all practicable means and measures, including financial and
technical assistance, in a manner calculated to foster and
promote the general welfare, to create and maintain conditions
under which man and nature can exist in productive harmony, and
fulfill the social, economic, and other requirements of present
and future generations of Americans.''\6\ In pursuit of this
goal, NEPA requires agencies to prepare a ``detailed''
statement analyzing ``major Federal actions significantly
affecting the quality of the human environment.''\7\
---------------------------------------------------------------------------
\6\42 U.S.C. Sec. 4331.
\7\Id. Sec. 4332(2)(C).
---------------------------------------------------------------------------
The environmental review required by NEPA typically causes
agencies to generate one of three documents: a categorical
exclusion (CE); an environmental assessment (EA); or, an
environmental impact statement (EIS). A CE is the shortest
document and is used for types of actions that are known not to
significantly affect the environment. An EA is used to
determine if there is a significant effect on the environment.
If not, then the agency issues a finding of no significant
impact (FONSI); otherwise, the agency will prepare an EIS,
which is a thorough analysis of the proposed agency action, its
environmental impact, and a range of alternatives and their
impacts.\8\ ``The required documents can be voluminous and may
take years to produce.''\9\
---------------------------------------------------------------------------
\8\See generally Kristina Alexander, Overview of National
Environmental Policy Act (NEPA) Requirements (CRS RS20621 Jan. 12,
2011).
\9\Id. at 3.
---------------------------------------------------------------------------
``Council on Environmental Quality (CEQ) estimates that the
vast majority of Federal actions require an EA or are
categorically excluded from the requirement to prepare an EA or
EIS.''\10\ But projects that require an EA or an EIS, and
therefore ``result in the most significant delays during
NEPA,'' typically also are ``[t]he types of projects that
create jobs.''\11\
---------------------------------------------------------------------------
\10\Linda Luther, The National Environmental Policy Act (NEPA):
Background and Implementation, at 15 (CRS RL33152 Jan. 10, 2011).
\11\RAPID Act Hearing I, note 1 supra, at 201 (Testimony of Thomas
Margro).
---------------------------------------------------------------------------
An EIS ensures that agencies carefully consider a proposed
action's environmental impacts during, and provides
transparency into, the decision-making process. ``NEPA does not
require the agency to choose the most environmentally
preferable alternative.''\12\ Regulations require robust public
participation in this process, from the ``scoping'' stage where
issues are identified, through drafting and in the final EIS,
which should respond to comments made throughout. Public
hearings may be utilized.\13\ Because NEPA does not create a
cause of action, lawsuits challenging an agency's review are
brought under the APA's 6-year statute of limitations.\14\
---------------------------------------------------------------------------
\12\Alexander, note 8 supra, at 4; see also Robertson v. Methow
Valley Citizens Council, 490 U.S. 332, 350 (1989) (NEPA ``does not
mandate particular results, but simply prescribes the necessary
process.'').
\13\Alexander, note 8 supra, at 4-5.
\14\See 28 U.S.C. Sec. 2401.
---------------------------------------------------------------------------
Of course, NEPA is not the only statute that requires
Federal agencies to analyze environmental effects. Myriad
Federal, state, tribal and local laws also require analysis of
how a proposed government action could impact particular
aspects of the environment (e.g., clean air, endangered
species). In preparing an EIS, agencies should address all of
the environmental issues they are required to consider.
To integrate the compliance process and avoid duplication
of effort, NEPA regulations specify that, to the fullest extent
possible, agencies must prepare the EIS concurrently with any
environmental requirements. The EIS must list any Federal
permits, licenses, and other entitlements required to implement
the proposed project. In this capacity, NEPA functions as an
`umbrella' statute; any study, review, or consultation required
by any other law that is related to the environment should be
conducted within the framework of the NEPA process.\15\
---------------------------------------------------------------------------
\15\Luther, note 10 supra, at 25.
---------------------------------------------------------------------------
2. LRegulations Outlining the NEPA Process
NEPA created the CEQ within the Executive Office of the
President.\16\ The CEQ promulgates regulations implementing
NEPA.
---------------------------------------------------------------------------
\16\See 28 U.S.C. Sec. 4342.
---------------------------------------------------------------------------
a. LEnvironmental Impact Statements (EIS)
The basic EIS preparation process under NEPA regulations
begins when the lead agency (i.e., ``the agency or agencies
preparing or having taken primary responsibility for preparing
the environmental impact statement''\17\) publishes a notice of
intent in the Federal Register, briefly describing the proposed
action and the agency's scoping process, and giving contact
information and/or hearing dates. The lead agency then
initiates the ``scoping process,''\18\ which entails:
---------------------------------------------------------------------------
\17\40 C.F.R. Sec. 1508.16.
\18\Id. Sec. 1501.7.
LIdentifying and inviting ``cooperating
agencies,''\19\ as well as stakeholders and other
interested parties, to participate in preparing the
EIS;
---------------------------------------------------------------------------
\19\Id. Sec. 1508.5 (``any Federal agency other than a lead agency
which has jurisdiction by law or special expertise with respect to any
environmental impact involved in a proposal (or a reasonable
alternative) for legislation or other major Federal action
significantly affecting the quality of the human environment'').
LIdentifying significant issues to be analyzed
---------------------------------------------------------------------------
in depth in the EIS;
LEliminating insignificant issues;
LAllocating responsibilities among the lead
and cooperating agencies, although the lead agency
ultimately remains responsible for the EIS;
LIdentifying other relevant environmental
review documents, or review and consultation
requirements, to avoid duplication and to maximize
efficiency.\20\
---------------------------------------------------------------------------
\20\Id. Sec. 1501.7(a).
The alternatives section ``is the heart of the
environmental impact statement.''\21\ The lead agency must
``rigorously explore and objectively evaluate all reasonable
alternatives'' and explain why other alternatives have been
excluded.\22\ The EIS must ``devote substantial treatment to
each alternative in detail'' (including the alternative of no
action) so the reader may evaluate them comparatively, and give
the lead agency's preferred alternative in the draft EIS and
chosen alternative in the final EIS.\23\ The lead agency may
set time and page limits for preparing the EIS, although none
are required.\24\
---------------------------------------------------------------------------
\21\Id. Sec. 1502.14.
\22\Id. Sec. 1502.14(a).
\23\Id. Sec. 1502.14(b)-(f).
\24\Id. Sec. 1501.7(b).
---------------------------------------------------------------------------
The EIS is prepared in two stages: draft and final. The
draft EIS should be within the parameters established during
the scoping process.\25\ The lead agency is responsible for
inviting comments on the draft EIS, from interested
governmental agencies or bodies, the applicant, and the
public.\26\ The regulations recommend a standard format for the
final EIS, to ``encourage good analysis and clear presentation
of the alternatives including the proposed action.''\27\
---------------------------------------------------------------------------
\25\Id. Sec. 1502.9.
\26\Id. Sec. 1503.1(a)(4) (The lead agency shall ``affirmatively
solicit[] comments from those persons or organizations who may be
interested or affected'').
\27\Id. Sec. 1502.10. (The recommended format is: Cover sheet;
Summary; Table of contents; Purpose of and need for action;
Alternatives including proposed action; Affected environment;
Environmental consequences; List of preparers; List of Agencies,
Organizations, and persons to whom copies of the statement are sent;
Index; Appendices (if any)).
---------------------------------------------------------------------------
b. LEnvironmental Assessments (EA) and Categorical
Exclusions (CE)
NEPA regulations do not address in detail the process for
formulating an EA. Instead, each agency has the authority to
develop its own process\28\, although ``[a]gencies may prepare
an environmental assessment on any action at any time in order
to assist agency planning and decisionmaking''\29\ or to: ``(1)
Briefly provide sufficient evidence and analysis for
determining whether to prepare an environmental impact
statement or a finding of no significant impact; (2) Aid an
agency's compliance with the Act when no environmental impact
statement is necessary; (3) Facilitate preparation of a
statement when one is necessary.''\30\ The general format for
an EA is that it ``[s]hall include brief discussions of the
need for the proposal, of alternatives as required by section
102(2)(E), of the environmental impacts of the proposed action
and alternatives, and a listing of agencies and persons
consulted.''\31\ Regarding CEs, agencies are required to list
in their regulations ``Specific criteria for and identification
of'' actions that typically result in a CE (as well as those
that typically result in an EA and in an EIS).\32\
---------------------------------------------------------------------------
\28\Id. Sec. Sec. 1501.3, 1507.3.
\29\Id. Sec. 1501.3(b).
\30\Id. Sec. 1508.9(a).
\31\Id. Sec. 1508.9(b).
\32\Id. Sec. 1507.3(b).
---------------------------------------------------------------------------
3. LProject Delays due to the NEPA Process
It has long been alleged that NEPA is overly cumbersome,
causing a lengthy decision-making process for Federal agencies.
The cause of delay falls into two categories: preparation of
the documents required by NEPA (e.g., an EIS) and litigation
challenging the documents' adequacy. Generally, stakeholders
express that EISs have become far too lengthy and technical,
and that litigation--and the mere threat of litigation during
the 6-year statute of limitations period--deters breaking
ground on a project even after all permits have been
approved.\33\ The deWitt study, which ``appears to be the only
true quantitative analysis of the time required to complete an
EIS,'' found that ``between January 1, 1998 and December 31,
2006, 53 Federal executive branch entities made available to
the public 2,236 final EIS documents; the time to prepare an
EIS during this time ranged from 51 days to 6,708 days (18.4
years). The average time for all Federal entities was 3.4
years, but most of the shorter EIS documents occurred in the
earlier years of the analysis; EIS completion time increased by
37 days each year.''\34\ In the 109th Congress, the U.S. House
of Representatives Committee on Resources Task Force on
Improving and Updating the National Environmental Policy Act
received testimony regarding delays in environmental review and
permitting, including delays that cost jobs by causing projects
to fail, and made suggestions to improve the NEPA process in
its Final Report.\35\
---------------------------------------------------------------------------
\33\See generally Luther, note 10 supra, at 26-29; Linda Luther,
The National Environmental Policy Act: Streamlining NEPA, at 7-10
(RL33267 Dec. 6, 2007).
\34\RAPID Act Hearing I, note 1 supra, at 47-48 (Testimony of
William Kovacs).
\35\Available at http://www.law.georgetown.edu/gelpi/
research_archive/nepa/NEPATaskForce_
FinalRecommendations.pdf (last accessed June 22, 2012).
---------------------------------------------------------------------------
Stakeholders believe this ``paralysis by analysis'' results
in lost jobs when project sponsors and capital withdraw their
support in the face of lengthy delays. In March 2011, as part
of its Project No Project initiative the U.S. Chamber of
Commerce published a study of 351 proposed energy projects--
solar, wind, wave, bio-fuel, coal, gas and nuclear--that have
been delayed or cancelled altogether due to extensive delays in
the Federal permitting process.\36\ ``[I]f these projects had
been built, there would have been direct investment in the 2010
timeframe of $576 billion in direct investment; that trickle-
down effect or the multiplier effect would have been a $1.1
trillion boost to the economy and it would have created 1.9
million jobs through the 7 years of construction.''\37\
---------------------------------------------------------------------------
\36\Steve Pociask & Joseph P. Fuhr, Jr., Progress Denied: A Study
on the Potential Economic Impact of Permitting Challenges Facing
Proposed Energy Projects (Mar. 11, 2011), available at http://
www.uschamber.com/reports/progress-denied-study-potential-economic-
impact-permitting-challenges-facing-proposed-energy (last accessed June
22, 2012).
\37\RAPID Act Hearing I, note 1 supra, at 39 (Testimony of William
Kovacs).
---------------------------------------------------------------------------
One timely example of the need to reform Federal permitting
and environmental review is the Keystone Pipeline XL project,
which--after more than 1,200 days and 10,000 pages of
analysis--prompted an Act of Congress to force the
Administration to decide the issue by February 21, 2012.\38\
Even then, on January 18, 2012, the Administration announced
the Keystone Pipeline XL permit would not be approved by the
February 21, 2012, deadline. On March 8, 2012, the Senate
narrowly defeated an amendment to a transportation bill to
override the President's decision and approve the pipeline.\39\
On March 22, 2012, the President announced during a speech in
Oklahoma that he was ordering agencies to fast-track review of
the TransCanada pipeline from Cushing, Okla., to refineries on
the Gulf Coast of Texas.\40\ TransCanada then reapplied to
build the pipeline, which would run from Alberta to the Gulf of
Mexico,\41\ and the U.S. Department of State announced that it
would begin preparing a new, supplemental environmental impact
statement.\42\ TransCanada first applied for a permit to build
the pipeline in September 2008.\43\ There have been further
legislative developments this term related to the Keystone
permit process, but there is as yet still no final resolution
of the pipeline project's status.
---------------------------------------------------------------------------
\38\See H.R. 3765, Title V, Subtitle A.
\39\See S. Amdt. 1537 to S. 1813 (Mar. 8, 2012).
\40\See ``Remarks by the President on American-Made Energy,'' Mar.
22, 2012, available at http://www.whitehouse.gov/the-press-office/2012/
03/22/remarks-president-american-made-energy (last accessed June 22,
2012) (``Now, right now, a company called TransCanada has applied to
build a new pipeline to speed more oil from Cushing to state-of-the-art
refineries down on the Gulf Coast. And today, I'm directing my
administration to cut through the red tape, break through the
bureaucratic hurdles, and make this project a priority, to go ahead and
get it done.'').
\41\Dan Frosch, ``New Application Is Submitted for Keystone
Pipeline,'' New York Times (May 4, 2012), available at http://
www.nytimes.com/2012/05/05/us/transcanada-submits-new-application-for-
keystone-project.html (last accessed June 22, 2012).
\42\See http://www.keystonepipeline-xl.state.gov/(last accessed
June 22, 2012).
\43\See http://energycommerce.house.gov/keystonexl.shtml (last
accessed June 22, 2012).
---------------------------------------------------------------------------
Save the Peaks Coalition v. United States Forest Service
illustrates how a party can delay a project through litigation
after ``resting on its rights.'' The Ninth Circuit called the
plaintiff's obstructionist tactics ``a serious abuse of the
judicial process'' but still declined to bar their lawsuit.\44\
Save the Peaks Coalition (SPC) sued the U.S. Forest Service
(USFS) and Arizona Snowbowl Resort Limited Partnership (ASRLP)
after they ``had successfully defended an agency decision to
allow snowmaking at a ski resort on Federal land all the way to
the United States Supreme Court.''\45\ SPC ``had closely
monitored and, in some cases, actively encouraged and helped
finance the first litigation,'' but waited until the last
moment to sue.\46\ The court decried SPC's deliberately
delaying tactics while bemoaning that current law allows them:
---------------------------------------------------------------------------
\44\Save the Peaks Coal. v. U.S. Forest Serv., 669 F.3d 1025, 1034
(9th Cir. 2012).
\45\Id. at 1028.
\46\Id.
Although it is apparent to us that the `new' plaintiffs
and their counsel have grossly abused the judicial
process by strategically holding back claims that could
have, and should have, been asserted in the first
lawsuit (and would have been decided earlier but for
counsel's procedural errors in raising those claims),
we are compelled to hold that laches does not apply
here because the USFS and ASRLP cannot demonstrate that
they suffered prejudice, as defined by our case
law.\47\
---------------------------------------------------------------------------
\47\Id.
4. LExamples of and Recommendations for Permit Streamlining
a. LSAFETEA-LU, MAP-21 and WRDA
``The RAPID Act almost exclusively relies upon concepts
that are part of existing law and that have been shown to work
in other contexts, such as SAFETEA-LU,''\48\ which authorized
spending on Federal highway programs for FYs 2005-2009. Section
6002, regarding ``Efficient environmental reviews for project
decisionmaking,'' expedited construction by codifying existing
regulatory requirements, definitions, concepts and procedures.
Specifically, Section 6002 utilized the lead agency/
participating agency NEPA process for conducting environmental
reviews: project initiation; defining the project's purpose and
need; coordination and scheduling for conducting the review;
and, identifying and resolving issues that could delay the
approval process. SAFETEA-LU also established a 180-day statute
of limitations to challenge a final agency action (e.g.,
permitting decision) related to the environmental review.\49\ A
bipartisan bill co-sponsored by numerous Democrats, SAFETEA-LU
passed the House 412 to 8. The Federal Highway Administration
found Section 6002 has reduced the average NEPA review time
almost by half, from 73 months to 36.85 months.\50\
---------------------------------------------------------------------------
\48\RAPID Act Hearing I, note 1 supra, at 56 (Testimony of William
Kovacs).
\49\See 23 U.S.C. Sec. 139(l).
\50\Office of Project Development & Environmental Review, Federal
Highway Administration, U.S. Department of Transportation, ``Biannual
Assessment of SAFETEA-LU Section 6002 Implementation Effectiveness,''
at 9 (Sept. 2010) (OPDER Assessment).
---------------------------------------------------------------------------
In 2012, the ``Moving Ahead for Progress in the 21st
Century Act'' (MAP-21), signed into law as P.L. 112-141, again
legislated steps to streamline permitting of federally-funded
transportation projects.\51\ MAP-21 contained a shorter statute
of limitations than SAFETEA-LU, however, reducing the time
allowed for suit to 150 days.\52\,\53\
---------------------------------------------------------------------------
\51\See P.L. 112-141, Sec. Sec. 1301-1323.
\52\Id., Sec. 1308.
\53\The 113th Congress continued to pilot these kinds of permit
streamlining reforms during the 113th Congress, through the ``Water
Resources Reform and Development Act of 2014'' (WRDA), H.R. 3080,
signed into law as P.L. 113-449.
---------------------------------------------------------------------------
During its prior consideration of the RAPID Act, the
Subcommittee on Regulatory Reform, Commercial and Antitrust Law
received testimony demonstrating the effectiveness of SAFETEA-
LU's and MAP-21's permitting reforms and their usefulness as
models for expanded reform, as well as testimony detailing the
effectiveness of permit streamlining reforms in the American
Recovery and Reinvestment Act.\54\
---------------------------------------------------------------------------
\54\See, e.g., OPDER Assessment at 9; William L. Kovacs, Statement
of the U.S. Chamber of Commerce, Hearing on the ``Responsibly And
Professionally Invigorating Development Act of 2013,'' House Committee
on the Judiciary, Subcommittee on Regulatory Reform, Commercial and
Antitrust Law at 12-13 (July 11, 2013).
---------------------------------------------------------------------------
b. LThe Energy Policy Act of 2005
The Energy Policy Act of 2005 also contained several NEPA
streamlining provisions, requiring the Secretaries of
Agriculture, Commerce, Defense, Energy and the Interior to
complete within 2 years any environmental review related to
designating energy corridors in the West.\55\ The Act required
the Secretary of the Interior to complete within 18 months a
programmatic EIS ``for a commercial leasing program for oil
shale and tar sands resources on public lands, with an emphasis
on the most geologically prospective lands within each of the
States of Colorado, Utah, and Wyoming.''\56\ The Act also
codified principles of inter-agency coordination by directing
the Secretary of Energy, in consultation with the Secretaries
of Interior, Agriculture and Defense, to prepare a memorandum
of understanding ``to coordinate all applicable Federal
authorizations and environmental reviews relating to a proposed
or existing utility facility.'' The MOU was needed to ``provide
for an agreement among the affected Federal agencies to prepare
a single environmental review document to be used as the basis
for all Federal authorization decisions.''\57\
---------------------------------------------------------------------------
\55\109 P.L. 58, Sec. 368.
\56\109P.L. 58, Sec. 369.
\57\109 P.L. 58, Sec. 372.
---------------------------------------------------------------------------
c. LThe NEPA Task Force
In July 2006 the House Natural Resources Committee's NEPA
Task Force released its Final Report,\58\ with 20
recommendations based on input received at five field hearings
and two more hearings in Washington, D.C., and on comments to
the December 2005 draft report. Finding that ``there are no
time limits for any component of the NEPA process'' because
agencies have not ``establish[ed] appropriate time limits for
the [EIS] process'' as the regulations require, the Final
Report recommended that agencies have 18 months to complete an
EIS and 9 months to complete an EA.\59\ The Final Report
recommended that the CEQ should ``prepare regulations that
would, in cases where state environmental reviews are
functionally equivalent to NEPA requirements, allow these
requirements to satisfy commensurate NEPA requirements.''\60\
Regarding the need to streamline litigation, the Final Report
recommended that only parties that had ``been actively involved
throughout the [NEPA] process'' could bring a lawsuit, with a
180-day statute of limitations.\61\ The Final Report
recommended that agencies should have to consider only
``reasonable'' alternatives in its analysis, defined as ``those
that are economically and technically feasible.''\62\ The Final
Report also stressed the need to clarify the responsibilities
of lead agencies, and that the lead agency should be in charge
of ``develop[ing] a consolidated record for the NEPA reviews,
EIS development, and other NEPA decisions,'' as well as
``recognizing the mission and operations of cooperating
agencies.''\63\
---------------------------------------------------------------------------
\58\See note 35 supra.
\59\Id., Recommendation 1.3.
\60\Id., Recommendation 3.1.
\61\Id., Recommendation 4.1.
\62\Id., Recommendation 5.1.
\63\Id., Recommendation 6.2.
---------------------------------------------------------------------------
d. LPresident's Council on Jobs and Competitiveness
During the 112th Congress, the President's Council on Jobs
and Competitiveness recommended streamlined permitting as a
strategy to create jobs. A June 2011 op-ed by Jeffrey Immelt,
Chair of the Jobs Council and Chairman and CEO of General
Electric, and Kenneth I. Chenault, Chairman and CEO of American
Express, urged the President: ``Streamline permitting. Cut red
tape so job-creating construction and infrastructure projects
can move forward. The Administration can take a few simple
steps to streamline the process of obtaining permits, without
undercutting the protections that our regulatory system
provides.''\64\ The Jobs Council also observed that ``[t]he
current system for permitting and approving job-creating
projects, which involves Federal, state and local agencies, can
lead to significant delays.'' In June 2011 the Jobs Council
made several relevant recommendations to the President:
---------------------------------------------------------------------------
\64\``How We're Meeting the Job Creation Challenge,'' Wall Street
Journal, June 13, 2011.
---------------------------------------------------------------------------
LData collection and transparency;
LEarly stakeholder engagement;
LCentralized monitoring and accountability for
Federal agency performance;
LLimiting duplication among local, state, and
Federal agency reviews;
LImprove litigation management.\65\
---------------------------------------------------------------------------
\65\``Simply Regulatory Review and Streamline Project Approvals,''
Jobs Council Recommendations, available at http://files.jobs-
council.com/files/2011/10/JobsCouncil_Regulatory.pdf (last accessed
June 22, 2012).
---------------------------------------------------------------------------
The Jobs Council reiterated these suggestions in its October
2011 Interim Report, explaining that ``[t]he thrust is to give
stakeholders visibility into the process, deliver timely
reviews and avoid duplicative analysis and requirements.''\66\
The Jobs Council's year-end report also mentioned the
importance of permit streamlining.\67\
---------------------------------------------------------------------------
\66\Available at http://files.jobs-council.com/jobscouncil/files/
2011/10/JobsCouncil_Interim
Report_Oct11.pdf, p. 27 (last accessed June 22, 2012).
\67\Available at http://files.jobs-council.com/files/2012/01/
JobsCouncil_2011YearEndReport
Web.pdf, pp. 42-44 (last accessed June 22, 2012).
e. LThe Administration
Following these recommendations, on August 31, 2011, the
President asked the Secretaries of Agriculture, Commerce,
Housing and Urban Development, the Interior, and Transportation
each to identify three ``high-impact, job-creating
infrastructure projects that can be expedited through
outstanding review and permitting processes.''\68\ The
President described this initiative as ``a common-sense step to
speed job creation in the near term while increasing our
competitiveness and strengthening the economy in the long
term.''\69\ On October 11, 2011, the President announced 14
projects for expedited permitting and environmental review.\70\
These projects are tracked by the online Federal Infrastructure
Projects Dashboard (``Dashboard''), which was created pursuant
to the August 31 Presidential Memorandum.\71\ On March 22,
2012, the President by Executive Order 13604 established a
``Steering Committee on Federal Infrastructure Permitting and
Review Process Improvement'' to select projects to be tracked
on the Dashboard and to ``develop and publish on the Dashboard
a Federal Plan to significantly reduce the aggregate time
required to make Federal permitting and review decisions on
infrastructure projects while improving outcomes for
communities and the environment.''\72\ President Obama
emphasized that the Federal Plan should address the following
goals:
---------------------------------------------------------------------------
\68\Press Release, ``White House Announces Steps to Expedite High
Impact Infrastructure Projects to Create Jobs,'' Aug. 31, 2011,
available at http://www.whitehouse.gov/the-press-office/2011/08/31/
white-house-announces-steps-expedite-high-impact-infrastructure-
projects (last accessed June 22, 2012).
\69\Id.
\70\Press Release, ``Obama Administration Announces Selection of 14
Infrastructure Projects to be Expedited Through Permitting and
Environmental Review Process,'' Oct. 11, 2011, available at http://
www.whitehouse.gov/the-press-office/2011/10/11/obama-administration-
announces-selection-14-infrastructure-projects-be-e (last accessed June
22, 2012).
\71\See http://permits.performance.gov/(last accessed June 22,
2012).
\72\Exec. Order No. 13604, Improving Performance of Federal
Permitting and Review of Infrastructure Projects, 77 Fed. Reg. 18887
(Mar. 22, 2012).
LInstitutionalizing best practices for:
enhancing Federal, State, local, and tribal government
coordination on permitting and review processes (such
as conducting reviews concurrently rather than
sequentially to the extent practicable); avoiding
duplicative reviews; and engaging with stakeholders
---------------------------------------------------------------------------
early in the permitting process;
LDeveloping mechanisms to better communicate
priorities and resolve disputes among agencies at the
national and regional levels;
LInstitutionalizing use of the Dashboard,
working with the Chief Information Officer (CIO) to
enhance the Dashboard, and utilizing other cost-
effective information technology systems to share
environmental and project-related information with the
public, project sponsors, and permit reviewers; and
LIdentifying timeframes and Member Agency
responsibilities for the implementation of each
proposed action.
The Federal Plan was released thereafter\73\ and contained
numerous suggestions for agencies to follow when conducting
environmental reviews that are consistent both with the goals
identified in Executive Order 13604 and with suggestions made
at the Subcommittee's April 25, 2012, hearing.
---------------------------------------------------------------------------
\73\See http://permits.performance.gov/sites/default/files/
Federal_Infrastructure_Plan.pdf (last accessed June 22, 2012).
---------------------------------------------------------------------------
Relatedly, on March 6, 2012, the CEQ issued a memorandum to
Federal agencies and departments regarding ``Improving the
Process for Preparing Efficient and Timely Environmental
Reviews under [NEPA].'' This guidance was issued to ``emphasize
and clarify'' the opportunities for agencies to ``meet the
goal'' of conducting ``high quality, efficient and timely
environmental reviews'' under NEPA that are ``fully consistent
with a thorough and meaningful environmental review.'' The
memorandum encouraged agencies to follow numerous practices
that would be required by H.R. 348, such as the need for EISs
and EAs to be concise and clear; the importance of early and
effective scoping and of inter-agency and inter-governmental
coordination, including conducting concurrent reviews;
adopting, when appropriate, existing environmental study
documents; and, the importance of establishing clear timelines
and deadlines. ``In many ways, the RAPID Act is a codification
of principles set forth in CEQ's March 2012 guidance on NEPA
efficiency.''\74\ Environmental review already has been
completed, permits have been issued, and construction has
begun, for several of these projects.\75\
---------------------------------------------------------------------------
\74\RAPID Act Hearing I, note 1 supra, at 57 (Testimony of William
Kovacs).
\75\See http://permits.performance.gov/news-and-updates (June 22,
2012).
---------------------------------------------------------------------------
More recently, on May 17, 2013, the President issued a
presidential memorandum directing the aforementioned Steering
Committee, in conjunction with the Administration's Chief
Performance Officer (CPO), OIRA, and the CEQ to modernize
regulations, policies and procedures on Federal infrastructure
permitting and review. This initiative is intended to include
the Departments of Defense, Interior, Agriculture, Commerce,
Transportation, Energy, and Homeland Security, the
Environmental Protection Agency, the Advisory Council on
Historic Preservation, the Department of the Army, the CEQ, and
``such other agencies or offices as the CPO may invite to
participate.''
This history reflects the effectiveness of prior, more
incremental permit streamlining steps and a consensus that
permit streamlining should be expanded and made more durable.
The RAPID Act achieves both of those goals.
B. PRIOR LEGISLATIVE HISTORY
The RAPID Act was first introduced as H.R. 4377 in the
112th Congress. H.R. 4377 was reported favorably by the
Committee and passed the House on July 26, 2012, as title V of
H.R. 4078, the ``Red Tape Reduction and Small Business Job
Creation Act of 2012,'' on a bipartisan vote of 245-172. The
RAPID Act was reintroduced in the 113th Congress as H.R. 2641,
the ``Responsibly And Professionally Invigorating Development
Act of 2013,'' on July 10, 2013. H.R. 2641 likewise was
reported favorably by the Committee, and it passed the House
twice with bipartisan support, first as a stand-alone bill on
March 6, 2014 (229-179), and, second, as Division C of H.R. 2
on September 18, 2014 (226-191).
Hearings
The Committee's Subcommittee on Regulatory Reform,
Commercial and Antitrust Law held a hearing on H.R. 348, on
March 2, 2015. The Subcommittee also considered two unrelated
bills at the hearing, H.R. 712, the ``Sunshine for Regulatory
Decrees and Settlements Act of 2015,'' and H.R. 1155, the
``Searching for and Cutting Regulations that are Unnecessarily
Burdensome Act of 2015'' (SCRUB Act). Testimony at the hearing
was received from William L. Kovacs, Senior Vice President for
Environment, Technology & Regulatory Affairs, the U.S. Chamber
of Commerce; Patrick A. McLaughlin, Senior Research Fellow,
Mercatus Center, George Mason University; Sam Batkins, Director
of Regulatory Policy, American Action Forum; and, Amit Narang,
Regulatory Policy Advocate, Public Citizen. Additional material
unrelated to H.R. 348 was submitted by the Hon. Samuel Olens,
Georgia Attorney General.
The Subcommittee also held a hearing on the RAPID Act
during the 113th Congress (H.R. 2641),\76\ and the Subcommittee
on Courts, Commercial and Administrative Law held a hearing on
the legislation during the 112th Congress (H.R. 4377).\77\
---------------------------------------------------------------------------
\76\Responsibly And Professionally Invigorating Development (RAPID)
Act of 2013: Hearing before the Subcomm. on Regulatory Reform,
Commercial and Antitrust Law of the H. Comm. on the Judiciary, Serial
No. 113-42, 113th Cong. (July 11, 2013).
\77\RAPID Act Hearing I, supra note 1.
---------------------------------------------------------------------------
Committee Consideration
On March 24, 2015, the Committee met in open session and
ordered the bill H.R. 348 favorably reported without amendment,
by a rollcall vote of 15 to 11, a quorum being present.
Committee Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises that the
following rollcall votes occurred during the Committee's
consideration of H.R. 348.
1. Amendment #1, offered by Mr. Nadler. The Amendment
exempts from the bill projects that pertain to nuclear
facilities in areas designated as earthquake fault zones. The
Amendment was defeated by a rollcall vote of 10 to 18.
ROLLCALL NO. 1
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman................... X
Mr. Sensenbrenner, Jr. (WI).................... X
Mr. Smith (TX)................................. X
Mr. Chabot (OH)................................ X
Mr. Issa (CA)..................................
Mr. Forbes (VA)................................ X
Mr. King (IA).................................. X
Mr. Franks (AZ)................................ X
Mr. Gohmert (TX)...............................
Mr. Jordan (OH)................................ X
Mr. Poe (TX)................................... X
Mr. Chaffetz (UT)..............................
Mr. Marino (PA)................................ X
Mr. Gowdy (SC)................................. X
Mr. Labrador (ID)..............................
Mr. Farenthold (TX)............................ X
Mr. Collins (GA)............................... X
Mr. DeSantis (FL).............................. X
Ms. Walters (CA)............................... X
Mr. Buck (CO).................................. X
Mr. Ratcliffe (TX).............................
Mr. Trott (MI)................................. X
Mr. Bishop (MI)................................ X
Mr. Conyers, Jr. (MI), Ranking Member.......... X
Mr. Nadler (NY)................................ X
Ms. Lofgren (CA)............................... X
Ms. Jackson Lee (TX)........................... X
Mr. Cohen (TN).................................
Mr. Johnson (GA)............................... X
Mr. Pierluisi (PR).............................
Ms. Chu (CA)................................... X
Mr. Deutch (FL)................................
Mr. Gutierrez (IL).............................
Ms. Bass (CA).................................. X
Mr. Richmond (LA)..............................
Ms. DelBene (WA)............................... X
Mr. Jeffries (NY)..............................
Mr. Cicilline (RI)............................. X
Mr. Peters (CA)................................ X
------------------------
Total...................................... 10 18
------------------------------------------------------------------------
2. Amendment #2, offered by Ms. Jackson Lee. The Amendment
carves out from the bill's coverage any project that could be
the target of a terrorist attack or that involves chemical
facilities and other critical infrastructure. The Amendment was
defeated by a rollcall vote of 9 to 16.
ROLLCALL NO. 2
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman................... X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Smith (TX)................................. X
Mr. Chabot (OH)................................ X
Mr. Issa (CA)..................................
Mr. Forbes (VA)................................ X
Mr. King (IA).................................. X
Mr. Franks (AZ)................................ X
Mr. Gohmert (TX)............................... X
Mr. Jordan (OH)................................ X
Mr. Poe (TX)...................................
Mr. Chaffetz (UT)..............................
Mr. Marino (PA)................................ X
Mr. Gowdy (SC)................................. X
Mr. Labrador (ID)..............................
Mr. Farenthold (TX)............................
Mr. Collins (GA)............................... X
Mr. DeSantis (FL).............................. X
Ms. Walters (CA)............................... X
Mr. Buck (CO).................................. X
Mr. Ratcliffe (TX).............................
Mr. Trott (MI)................................. X
Mr. Bishop (MI)................................ X
Mr. Conyers, Jr. (MI), Ranking Member.......... X
Mr. Nadler (NY)................................ X
Ms. Lofgren (CA)............................... X
Ms. Jackson Lee (TX)........................... X
Mr. Cohen (TN).................................
Mr. Johnson (GA)...............................
Mr. Pierluisi (PR).............................
Ms. Chu (CA)................................... X
Mr. Deutch (FL)................................
Mr. Gutierrez (IL).............................
Ms. Bass (CA).................................. X
Mr. Richmond (LA)..............................
Ms. DelBene (WA)............................... X
Mr. Jeffries (NY)..............................
Mr. Cicilline (RI)............................. X
Mr. Peters (CA)................................ X
------------------------
Total...................................... 9 16
------------------------------------------------------------------------
3. Amendment #3, offered by Ms. Jackson Lee. The Amendment
strikes from the bill terms that deem permits for covered
projects approved if agencies do not meet deadlines in the
bill. The Amendment was defeated by a rollcall vote of 10 to
16.
ROLLCALL NO. 3
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman................... X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Smith (TX)................................. X
Mr. Chabot (OH)................................ X
Mr. Issa (CA)..................................
Mr. Forbes (VA)................................ X
Mr. King (IA).................................. X
Mr. Franks (AZ)................................ X
Mr. Gohmert (TX)............................... X
Mr. Jordan (OH)................................ X
Mr. Poe (TX)...................................
Mr. Chaffetz (UT)..............................
Mr. Marino (PA)................................ X
Mr. Gowdy (SC).................................
Mr. Labrador (ID)..............................
Mr. Farenthold (TX)............................
Mr. Collins (GA)............................... X
Mr. DeSantis (FL).............................. X
Ms. Walters (CA)............................... X
Mr. Buck (CO).................................. X
Mr. Ratcliffe (TX).............................
Mr. Trott (MI)................................. X
Mr. Bishop (MI)................................ X
Mr. Conyers, Jr. (MI), Ranking Member.......... X
Mr. Nadler (NY)................................ X
Ms. Lofgren (CA)............................... X
Ms. Jackson Lee (TX)........................... X
Mr. Cohen (TN)................................. X
Mr. Johnson (GA)............................... X
Mr. Pierluisi (PR).............................
Ms. Chu (CA)................................... X
Mr. Deutch (FL)................................
Mr. Gutierrez (IL).............................
Ms. Bass (CA).................................. X
Mr. Richmond (LA)..............................
Ms. DelBene (WA)............................... X
Mr. Jeffries (NY)..............................
Mr. Cicilline (RI)............................. X
Mr. Peters (CA)................................ X
------------------------
Total...................................... 10 16
------------------------------------------------------------------------
4. Amendment #4, offered by Mr. Conyers. The Amendment adds
a rule of construction that the bill is not to be interpreted
to change existing laws that require or provide for public
comment or public participation during agency decision-making
processes. The amendment was defeated by a rollcall vote of 10
to 15.
ROLLCALL NO. 4
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman................... X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Smith (TX).................................
Mr. Chabot (OH)................................ X
Mr. Issa (CA)..................................
Mr. Forbes (VA)................................ X
Mr. King (IA).................................. X
Mr. Franks (AZ)................................ X
Mr. Gohmert (TX)............................... X
Mr. Jordan (OH)................................ X
Mr. Poe (TX)...................................
Mr. Chaffetz (UT)..............................
Mr. Marino (PA)................................ X
Mr. Gowdy (SC)................................. X
Mr. Labrador (ID)..............................
Mr. Farenthold (TX)............................
Mr. Collins (GA)............................... X
Mr. DeSantis (FL).............................. X
Ms. Walters (CA)...............................
Mr. Buck (CO).................................. X
Mr. Ratcliffe (TX)............................. X
Mr. Trott (MI)................................. X
Mr. Bishop (MI)................................ X
Mr. Conyers, Jr. (MI), Ranking Member.......... X
Mr. Nadler (NY)................................ X
Ms. Lofgren (CA)............................... X
Ms. Jackson Lee (TX)...........................
Mr. Cohen (TN)................................. X
Mr. Johnson (GA)............................... X
Mr. Pierluisi (PR).............................
Ms. Chu (CA)................................... X
Mr. Deutch (FL)................................
Mr. Gutierrez (IL).............................
Ms. Bass (CA).................................. X
Mr. Richmond (LA)..............................
Ms. DelBene (WA)............................... X
Mr. Jeffries (NY)..............................
Mr. Cicilline (RI)............................. X
Mr. Peters (CA)................................ X
------------------------
Total...................................... 10 15
------------------------------------------------------------------------
5. Amendment #5, offered by Mr. Peters. The Amendment
strikes from the bill terms that prohibit use in environmental
reviews of the technical support document entitled ``Technical
Support Document: Technical Update of the Social Cost of Carbon
for Regulatory Impact Analysis Under Executive Order No.
12866,'' published by the Interagency Working Group on Social
Cost of Carbon, United States Government, in May 2013, revised
in November 2013, or other estimates of the monetized damages
associated with an incremental increase in carbon dioxide
emissions in a given year. The Amendment was defeated by a
rollcall vote of 11 to 13.
ROLLCALL NO. 5
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman................... X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Smith (TX).................................
Mr. Chabot (OH)................................ X
Mr. Issa (CA).................................. X
Mr. Forbes (VA)................................ X
Mr. King (IA).................................. X
Mr. Franks (AZ)................................ X
Mr. Gohmert (TX)............................... X
Mr. Jordan (OH)................................
Mr. Poe (TX)...................................
Mr. Chaffetz (UT)..............................
Mr. Marino (PA)................................ X
Mr. Gowdy (SC)................................. X
Mr. Labrador (ID)..............................
Mr. Farenthold (TX)............................
Mr. Collins (GA)............................... X
Mr. DeSantis (FL)..............................
Ms. Walters (CA)...............................
Mr. Buck (CO).................................. X
Mr. Ratcliffe (TX).............................
Mr. Trott (MI)................................. X
Mr. Bishop (MI)................................ X
Mr. Conyers, Jr. (MI), Ranking Member.......... X
Mr. Nadler (NY)................................ X
Ms. Lofgren (CA)............................... X
Ms. Jackson Lee (TX)...........................
Mr. Cohen (TN)................................. X
Mr. Johnson (GA)............................... X
Mr. Pierluisi (PR).............................
Ms. Chu (CA)...................................
Mr. Deutch (FL)................................ X
Mr. Gutierrez (IL).............................
Ms. Bass (CA).................................. X
Mr. Richmond (LA)..............................
Ms. DelBene (WA)............................... X
Mr. Jeffries (NY).............................. X
Mr. Cicilline (RI)............................. X
Mr. Peters (CA)................................ X
------------------------
Total...................................... 11 13
------------------------------------------------------------------------
6. Reporting H.R. 348. The bill fosters job creation and
economic growth by amending the Administrative Procedure Act to
establish a more streamlined and transparent Federal permitting
process for construction projects. Reported by a rollcall vote
of 15 to 11.
ROLLCALL NO. 6
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman................... X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Smith (TX)................................. X
Mr. Chabot (OH)................................ X
Mr. Issa (CA).................................. X
Mr. Forbes (VA)................................ X
Mr. King (IA).................................. X
Mr. Franks (AZ)................................ X
Mr. Gohmert (TX)............................... X
Mr. Jordan (OH)................................ X
Mr. Poe (TX)...................................
Mr. Chaffetz (UT)..............................
Mr. Marino (PA)................................ X
Mr. Gowdy (SC).................................
Mr. Labrador (ID)..............................
Mr. Farenthold (TX)............................
Mr. Collins (GA)............................... X
Mr. DeSantis (FL).............................. X
Ms. Walters (CA)...............................
Mr. Buck (CO).................................. X
Mr. Ratcliffe (TX).............................
Mr. Trott (MI)................................. X
Mr. Bishop (MI)................................ X
Mr. Conyers, Jr. (MI), Ranking Member.......... X
Mr. Nadler (NY)................................ X
Ms. Lofgren (CA)............................... X
Ms. Jackson Lee (TX)...........................
Mr. Cohen (TN)................................. X
Mr. Johnson (GA)............................... X
Mr. Pierluisi (PR).............................
Ms. Chu (CA)................................... X
Mr. Deutch (FL)................................ X
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Ms. DelBene (WA)............................... X
Mr. Jeffries (NY).............................. X
Mr. Cicilline (RI)............................. X
Mr. Peters (CA)................................ X
------------------------
Total...................................... 15 11
------------------------------------------------------------------------
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee advises that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives is inapplicable because this legislation does
not provide new budgetary authority or increased tax
expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, H.R. 348, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, April 13, 2015.
Hon. Bob Goodlatte, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 348, the
``Responsibility and Professionally Invigorating Development
Act of 2015.''
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Susanne S.
Mehlman, who can be reached at 226-2860.
Sincerely,
Keith Hall,
Director.
Enclosure
cc:
Honorable John Conyers, Jr.
Ranking Member
H.R. 348--Responsibility and Professionally Invigorating Development
Act of 2015.
As ordered reported by the House Committee on the Judiciary
on March 24, 2015.
SUMMARY
H.R. 348 would amend the Administrative Procedure Act, the
law that governs how Federal agencies propose and establish
regulations. Specifically, the bill would aim to expedite the
review process required by the National Environmental Policy
Act (NEPA) for construction projects that are partly or fully
financed with Federal funds or require permits or approvals
from Federal regulatory agencies.
CBO estimates that implementing this legislation would cost
$5 million over the next 5 years, assuming the availability of
appropriated funds, because Federal agencies would incur
additional administrative costs to meet the bill's new
requirements. Federal agencies also would incur additional
costs if they face legal challenges as a result of the bill's
implementation. Over time, we expect that the bill could reduce
the time needed to commence and complete some construction
projects financed with Federal funds. Expediting the time
required to start such projects would generally reduce the
total costs to complete them, but CBO has no basis for
estimating the number of construction projects that could be
expedited or the savings that would be realized.
Enacting H.R. 348 would not affect direct spending or
revenues; therefore, pay-as-you-go procedures do not apply.
H.R. 348 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA).
MAJOR PROVISIONS
Under NEPA, Federal agencies are required to assess the
environmental consequences of certain actions and alternatives
to those actions before proceeding. The affected Federal
agencies are required to consult with other interested
agencies, document analyses, and make this information
available for public comment prior to implementing a proposal.
Most significant construction projects that are partially or
fully financed by the Federal Government require a NEPA review;
in those cases, a permit or regulatory decision by a Federal
agency may also be necessary. In addition, if Federal agencies
must issue permits or regulatory decisions before certain
privately funded construction projects can proceed, then a NEPA
review may also be required.
The major provisions of H.R. 348 would:
LAuthorize sponsors of private construction
projects to prepare environmental reviews for NEPA
purposes as long as they are later approved by the
Federal agency leading those reviews;
LRequire agencies to participate in a
multiagency process for NEPA reviews or be precluded
from commenting on or opposing a construction project
at a later time;
LAllow the lead Federal agency for a project
to use environmental reviews that were conducted for
other construction projects in close proximity to the
proposed one if the projects are expected to have
similar effects on the environment;
LSpecify which type of alternatives should be
considered during the NEPA review process;
LImpose strict deadlines on various stages of
the NEPA review process, including a 2-year deadline
for completing Environmental Impact Statements and
issuing a Record of Decision; and
LEstablish a 180-day deadline to file a
lawsuit challenging a NEPA review process.
ESTIMATED COST TO THE FEDERAL GOVERNMENT
Costs for Federal Agencies to Implement Expedited Reviews
All Federal agencies have a responsibility to implement
NEPA; however, most Federal construction projects are sponsored
by three agencies:
LThe Department of Transportation (DOT) which
spends about $50 billion annually on highway and
transit related construction projects;
LThe Department of Defense which spends
roughly $15 billion a year for construction; and
LThe Army Corps of Engineers (the Corps) which
spends about $2 billion annually on civilian
construction projects.
Conducting a review under NEPA may also be required when
private entities need to obtain a Federal permit to construct a
project. Federal agencies that have a major role in regulating
and overseeing the permit process for such projects include:
the Federal Energy Regulatory Commission, the Nuclear
Regulatory Commission, the Corps, the Bureau of Land
Management, and the Forest Service.
This legislation would require all agencies to follow many
of the practices currently used by DOT and other agencies when
conducting NEPA reviews. It also would impose some new
requirements. CBO expects that some Federal agencies would
issue new regulations and guidelines to meet the new
requirements and deadlines imposed by this bill and,
consequently, would be required to devote more personnel and
technical resources to implementing the bill. For example, when
DOT implemented similar requirements to implement NEPA under
the Safe, Accountable, Flexible, Efficient Transportation
Equity Act (SAFE TEA-LU), the agency spent about $1 million to
establish new regulations, issue guidance, and establish new
review processes. Based on information from several Federal
agencies and regulatory experts, CBO estimates that over the
next several years Federal agencies would spend a total of $5
million to implement requirements in the bill, subject to the
availability of appropriated funds. That estimate is based on
the assumption that the level of effort required under the bill
would be similar to that experienced by DOT under SAFE TEA-LU.
Litigation Costs
According to the Congressional Research Service, specific
actions and procedures taken by Federal agencies to comply with
NEPA have evolved over many years following considerable
litigation, and Federal courts have played a prominent role in
interpreting and enforcing NEPA's requirements. Although this
legislation would impose some restrictions that would seek to
limit the number of NEPA claims filed against Federal agencies,
several agencies indicated to CBO that some new litigation
would likely occur under this bill. Given the history of
litigation associated with the NEPA process and the fact that
H.R. 348 would affect that process by amending the
Administrative Procedures Act and not NEPA, CBO expects that
the government would probably face increased litigation costs
following enactment of the bill as stakeholders seek
clarification of the new law's requirements or challenge an
agency's compliance with those requirements. CBO has no basis
for estimating the level of spending that would occur.
Cost of Federal Construction Projects
H.R. 348 also could affect Federal spending for
construction projects, but CBO has no basis for estimating the
timing or magnitude of such impacts. Implementing H.R. 348
could successfully streamline the NEPA review process,
accelerating the time line for completing Federal construction
projects. Over the long term, Federal agencies would realize
efficiencies and ultimately savings in construction and
administrative costs from such efficiencies. However, if
enacting this legislation leads to short-term delays in
completing Federal construction projects over the next 5 years
because of increased litigation, those efficiencies would not
be gained immediately.
INTERGOVERNMENTAL AND PRIVATE-SECTOR IMPACT
H.R. 348 contains no intergovernmental or private-sector
mandates as defined in UMRA.
ESTIMATE PREPARED BY:
Federal Costs: Susanne S. Mehlman
Impact on State, Local, and Tribal Governments: Jon Sperl
Impact on the Private Sector: Paige Piper/Bach
ESTIMATE APPROVED BY:
Theresa Gullo
Assistant Director for Budget Analysis
Duplication of Federal Programs
No provision of H.R. 348 establishes or reauthorizes a
program of the Federal Government known to be duplicative of
another Federal program, a program that was included in any
report from the Government Accountability Office to Congress
pursuant to section 21 of Public Law 111-139, or a program
related to a program identified in the most recent Catalog of
Federal Domestic Assistance.
Disclosure of Directed Rule Makings
The Committee estimates that H.R. 348 specifically directs
the Council on Environmental Quality and related Federal
agencies to conduct two rule making proceedings within the
meaning of 5 U.S.C. 551.
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
rule XIII of the Rules of the House of Representatives, H.R.
348 fosters job creation and economic growth by amending the
Administrative Procedure Act to establish a more streamlined
and transparent Federal permitting process for construction
projects.
Advisory on Earmarks
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 348 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(e), 9(f), or 9(g) of Rule XXI.
Section-by-Section Analysis
The following discussion describes the bill as reported by
the Committee.
Sec. 1. Short title.
Section 1 sets forth the short title of the bill as the
``Responsibly And Professionally Invigorating Development Act
of 2015'' or as the ``RAPID Act.''
Sec. 2: Coordination of Agency Administrative Operations for Efficient
Decisionmaking.
Section 2 adds a new subchapter to title 5 of the U.S. Code
to address permit streamlining, makes associated technical
amendments to the U.S. Code, and requires the Council on
Environmental Quality to promulgate regulations to implement
the RAPID Act.
Subsec. 2(a): Adds a new Section 560 to title 5 to effect
the RAPID Act's principal reforms. Under its terms, new sec.
560(a) declares that the purpose of the Bill is to establish a
framework to increase efficiency in the Federal permitting
process. Because the Administrative Procedure Act coordinates
agency action in other respects, it is fitting that it also
should coordinate agency permitting decisions, a major
component of which is the environmental review process.
Subsection 560(b) contains definitions of terms used in the
Bill, drawing upon NEPA regulations.
Subsection 560(c) allows a project sponsor to prepare any
environmental document required by NEPA, at the request and
with the oversight and approval of the lead agency.
Subsection 560(d) states that only one EIS and one EA (not
including supplemental and court-ordered environmental
documents) may be prepared under NEPA for a project, to be used
by all Federal agencies. To maximize efficiency, lead agencies
may choose to use existing, relevant data from similar
environmental reviews. The lead agency may adopt an existing
environmental study document that already has been prepared
under state law that meets the requirements of NEPA. A lead
agency also may prepare and publish a supplement to an existing
state environmental study document, and its record of decision
or finding of no significant impact should be based upon this
environmental study document and any supplements. A lead agency
may adopt environmental documents for a similar nearby project
within the last 5 years.
Subsection 560(e) provides that a lead agency is
responsible for inviting and designating participating
agencies. The lead agency designates as a participating agency
any Federal agency that will or may adopt the resulting
environmental study document; the designated agency can only
decline the designation in writing. The lead agency must invite
to be a participating agency any other agencies ``that may have
an interest in the project, including, where appropriate,
Governors of affected states.'' Consistent with current NEPA
practice, tribal and local governments, including counties,
also may become participating agencies in the environmental
review process. If the agency does not respond in writing in 30
days to the lead agency's invitation, then the invitation is
declined. If an agency declines the lead agency's designation
or invitation, then it is precluded from participating in the
environmental review or taking any measures to oppose any
permit, license or approval related to the project. A
participating agency also may be designated as a cooperating
agency, using the definition given to this term in the NEPA
regulations as an agency with a particularly strong
jurisdictional interest or expertise in the review. Subsection
(e) requires the participating agencies to contribute to the
environmental document concurrently, pursuant to regulations
issued by CEQ, and to limit comments to their own areas of
jurisdiction and authority.
Subsection 560(f) directs the project sponsor to notify the
responsible Federal agency of the project's initiation, so it
can identify and promptly notify the lead agency. The lead
agency should initiate the environmental review within 45 days,
by inviting and designating the participating agencies.
Subsection 560(g) requires the lead agency and the
cooperating agencies to begin the scoping process ``as early as
practicable.'' The lead agency ultimately is responsible for
determining the range of alternatives to be evaluated. When
making a decision under the project, no agency should evaluate
an alternative that was not evaluated in the environmental
study document. Cooperating agencies should only evaluate those
alternatives that are ``technically and economically feasible''
for the project sponsor to undertake, and the methodologies
should be developed collaboratively between the lead and
cooperating agencies and published in the environmental
document. An alternative that does not meet the project's
purpose and need should not be evaluated. The lead agency may
give a greater degree of analysis to a preferred alternative,
and the analysis of each alternative shall include its
potential effects on employment.
Under Subsection 560(h), the lead agency is responsible for
coordinating public and agency involvement in the review
process and for making a schedule to complete the entire review
process within the applicable timeframe, considering the
particular factors given in the Bill. The lead agency should
disregard untimely contributions made by participating
agencies. If a participating agency does not object in writing
to a lead agency decision, finding or request for concurrence
in the document, then the participating agency shall be deemed
to have concurred. As the review proceeds, the lead agency may
lengthen the schedule for good cause, or shorten it with the
concurrence of the cooperating agencies. The schedule must be
given to the participating agencies and project sponsor within
15 days and made publicly available.
Subsection 560(i)(1)-(3) set reasonable deadlines to
complete the environmental review. The lead agency must
complete a review that requires an EA within 1 year, with a 6-
month extension allowed for good cause or by agreement of the
lead agency, project sponsor and all participating agencies. An
EIS must be completed within 2 years, with a 1-year extension
allowed for good cause or by agreement among the lead agency,
project sponsor and all participating agencies. Thus, for a
project requiring both an EA and an EIS, the entire
environmental review process should not take more than four-
and-a-half years, with maximum extensions granted. All comments
on a draft EIS must be made within 60 days, and on other
documents within 30 days; extensions on these deadlines are
allowed by agreement among the lead agency, all participating
agencies, and the project sponsor, or for good cause in the
lead agency's judgment.
Subsection 560(i)(4) sets reasonable deadlines for agencies
to make permitting decisions. These timelines do not begin to
run until all relevant agency review on the project--including
the environmental review, per the applicable deadlines
established by Subsection (i)(1)--is complete. Thus, no permit
would ever be issued, by default or otherwise, until the
relevant agency review and analysis has been performed. If the
decision must be made before the record of decision is
published, then the agency has 90 days beginning after all
other relevant agency review related to the project is complete
and after the lead agency publishes the final environmental
impact statement, to make the decision, finding or approval.
Otherwise, the agency has 180 days beginning after all other
relevant agency review related to the project is complete and
after the record of decision is published to make the decision,
finding or approval, with extensions not to exceed 1 year from
when the record of decision was published. If the agency does
not decide within these timeframes, then the project or permit
is deemed approved. The default approval is not appealable
within the agency, and the mere fact that an approval was
obtained by default cannot be used to support an APA lawsuit
challenging the permitting decision as arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with
law, or unsupported by substantial evidence. A default approval
still could be challenged under the APA on other grounds,
however.
Subsection 560(j) generally requires the lead agency and
participating agencies to work cooperatively to identify
relevant issues; new issues should not be raised when it is too
late to analyze them properly. The CEQ retains its traditional
power to mediate disputes among agencies regarding issues that
could delay completion of the environmental review.
Subsection 560(k) prohibits a lead agency's use in any
environmental review or environmental decisionmaking process of
the ``social cost of carbon'' as described in the technical
support document entitled `Technical Support Document:
Technical Update of the Social Cost of Carbon for Regulatory
Impact Analysis Under Executive Order No. 12866', published by
the Interagency Working Group on Social Cost of Carbon, United
States Government, in May 2013, revised in November 2013, or
any successor thereto or substantially related document, or any
other estimate of the monetized damages associated with an
incremental increase in carbon dioxide emissions in a given
year.
Subsection 560(l) increases transparency by requiring each
agency to report annually to Congress regarding its compliance
with NEPA.
Subsection 560(m) applies to claims against an agency
decision that are predicated on an alleged defect in the NEPA
process. Only persons or entities that commented on the
environmental review document (if an opportunity for comment
was provided) may challenge that document in court, and all
claims must be brought within 180 days after the final decision
is published. Filing a supplemental EIS begins the 180-day
statute of limitations anew, but a lawsuit brought within that
new statute of limitations can only challenge the supplemental
EIS. Subsection (l) neither creates a right to judicial review
nor limits the right to claim a violation of the terms of a
permit, license or approval.
Subsection 560(n) allows the Bill's process to apply to
individual projects or to categories of projects.
Subsections 560(o) and (p) provide that the Bill applies
prospectively to all covered projects for which an agency is
required to undertake an environmental review or to make a
decision that is based upon an environmental review, and that
the bill's deadlines apply with limited retroactivity to
environmental reviews and environmental decisionmaking
processes initiated prior to the Bill's enactment.
Subsection 560(q) contains a savings clause providing that
nothing in section 560 shall be construed to supersede, amend,
or modify sections 134, 135, 139, 325, 326, and 327 of title
23, sections 5303 and 5304 of title 49, or subtitle C of title
I of division A of the Moving Ahead for Progress in the 21st
Century Act and the amendments made by such subtitle (Public
Law 112-141).
Subsec. 2(b). Makes technical amendments to the U.S. Code.
Subsec. 2(c). Requires the Council on Environmental Quality
to issue implementing regulations within 180 days of enactment,
and agencies to amend their regulations within 120 days
thereafter.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (new matter is
printed in italics and existing law in which no change is
proposed is shown in roman):
TITLE 5, UNITED STATES CODE
* * * * * * *
PART I--THE AGENCIES GENERALLY
* * * * * * *
CHAPTER 5--ADMINISTRATIVE PROCEDURE
SUBCHAPTER I--GENERAL PROVISIONS
Sec.
500. Administrative practice; general provisions.
* * * * * * *
SUBCHAPTER IIA--INTERAGENCY COORDINATION REGARDING PERMITTING
560. Coordination of agency administrative operations for efficient
decisionmaking.
* * * * * * *
SUBCHAPTER IIA--INTERAGENCY COORDINATION REGARDING PERMITTING
Sec. 560. Coordination of agency administrative operations for
efficient decisionmaking
(a) Congressional Declaration of Purpose.--The purpose of
this subchapter is to establish a framework and procedures to
streamline, increase the efficiency of, and enhance
coordination of agency administration of the regulatory review,
environmental decisionmaking, and permitting process for
projects undertaken, reviewed, or funded by Federal agencies.
This subchapter will ensure that agencies administer the
regulatory process in a manner that is efficient so that
citizens are not burdened with regulatory excuses and time
delays.
(b) Definitions.--For purposes of this subchapter, the
term--
(1) ``agency'' means any agency, department, or
other unit of Federal, State, local, or Indian tribal
government;
(2) ``category of projects'' means 2 or more
projects related by project type, potential
environmental impacts, geographic location, or another
similar project feature or characteristic;
(3) ``environmental assessment'' means a concise
public document for which a Federal agency is
responsible that serves to--
(A) briefly provide sufficient evidence and
analysis for determining whether to prepare an
environmental impact statement or a finding of
no significant impact;
(B) aid an agency's compliance with NEPA
when no environmental impact statement is
necessary; and
(C) facilitate preparation of an
environmental impact statement when one is
necessary;
(4) ``environmental impact statement'' means the
detailed statement of significant environmental impacts
required to be prepared under NEPA;
(5) ``environmental review'' means the Federal
agency procedures for preparing an environmental impact
statement, environmental assessment, categorical
exclusion, or other document under NEPA;
(6) ``environmental decisionmaking process'' means
the Federal agency procedures for undertaking and
completion of any environmental permit, decision,
approval, review, or study under any Federal law other
than NEPA for a project subject to an environmental
review;
(7) ``environmental document'' means an
environmental assessment or environmental impact
statement, and includes any supplemental document or
document prepared pursuant to a court order;
(8) ``finding of no significant impact'' means a
document by a Federal agency briefly presenting the
reasons why a project, not otherwise subject to a
categorical exclusion, will not have a significant
effect on the human environment and for which an
environmental impact statement therefore will not be
prepared;
(9) ``lead agency'' means the Federal agency
preparing or responsible for preparing the
environmental document;
(10) ``NEPA'' means the National Environmental
Policy Act of 1969 (42 U.S.C. 4321 et seq.);
(11) ``project'' means major Federal actions that
are construction activities undertaken with Federal
funds or that are construction activities that require
approval by a permit or regulatory decision issued by a
Federal agency;
(12) ``project sponsor'' means the agency or other
entity, including any private or public-private entity,
that seeks approval for a project or is otherwise
responsible for undertaking a project; and
(13) ``record of decision'' means a document
prepared by a lead agency under NEPA following an
environmental impact statement that states the lead
agency's decision, identifies the alternatives
considered by the agency in reaching its decision and
states whether all practicable means to avoid or
minimize environmental harm from the alternative
selected have been adopted, and if not, why they were
not adopted.
(c) Preparation of Environmental Documents.--Upon the
request of the lead agency, the project sponsor shall be
authorized to prepare any document for purposes of an
environmental review required in support of any project or
approval by the lead agency if the lead agency furnishes
oversight in such preparation and independently evaluates such
document and the document is approved and adopted by the lead
agency prior to taking any action or making any approval based
on such document.
(d) Adoption and Use of Documents.--
(1) Documents prepared under nepa.--
(A) Not more than 1 environmental impact
statement and 1 environmental assessment shall
be prepared under NEPA for a project (except
for supplemental environmental documents
prepared under NEPA or environmental documents
prepared pursuant to a court order), and,
except as otherwise provided by law, the lead
agency shall prepare the environmental impact
statement or environmental assessment. After
the lead agency issues a record of decision, no
Federal agency responsible for making any
approval for that project may rely on a
document other than the environmental document
prepared by the lead agency.
(B) Upon the request of a project sponsor,
a lead agency may adopt, use, or rely upon
secondary and cumulative impact analyses
included in any environmental document prepared
under NEPA for projects in the same geographic
area where the secondary and cumulative impact
analyses provide information and data that
pertains to the NEPA decision for the project
under review.
(2) State environmental documents; supplemental
documents.--
(A) Upon the request of a project sponsor,
a lead agency may adopt a document that has
been prepared for a project under State laws
and procedures as the environmental impact
statement or environmental assessment for the
project, provided that the State laws and
procedures under which the document was
prepared provide environmental protection and
opportunities for public involvement that are
substantially equivalent to NEPA.
(B) An environmental document adopted under
subparagraph (A) is deemed to satisfy the lead
agency's obligation under NEPA to prepare an
environmental impact statement or environmental
assessment.
(C) In the case of a document described in
subparagraph (A), during the period after
preparation of the document but before its
adoption by the lead agency, the lead agency
shall prepare and publish a supplement to that
document if the lead agency determines that--
(i) a significant change has been
made to the project that is relevant
for purposes of environmental review of
the project; or
(ii) there have been significant
changes in circumstances or
availability of information relevant to
the environmental review for the
project.
(D) If the agency prepares and publishes a
supplemental document under subparagraph (C),
the lead agency may solicit comments from
agencies and the public on the supplemental
document for a period of not more than 45 days
beginning on the date of the publication of the
supplement.
(E) A lead agency shall issue its record of
decision or finding of no significant impact,
as appropriate, based upon the document adopted
under subparagraph (A), and any supplements
thereto.
(3) Contemporaneous projects.--If the lead agency
determines that there is a reasonable likelihood that
the project will have similar environmental impacts as
a similar project in geographical proximity to the
project, and that similar project was subject to
environmental review or similar State procedures within
the 5-year period immediately preceding the date that
the lead agency makes that determination, the lead
agency may adopt the environmental document that
resulted from that environmental review or similar
State procedure. The lead agency may adopt such an
environmental document, if it is prepared under State
laws and procedures only upon making a favorable
determination on such environmental document pursuant
to paragraph (2)(A).
(e) Participating Agencies.--
(1) In general.--The lead agency shall be
responsible for inviting and designating participating
agencies in accordance with this subsection. The lead
agency shall provide the invitation or notice of the
designation in writing.
(2) Federal participating agencies.--Any Federal
agency that is required to adopt the environmental
document of the lead agency for a project shall be
designated as a participating agency and shall
collaborate on the preparation of the environmental
document, unless the Federal agency informs the lead
agency, in writing, by a time specified by the lead
agency in the designation of the Federal agency that
the Federal agency--
(A) has no jurisdiction or authority with
respect to the project;
(B) has no expertise or information
relevant to the project; and
(C) does not intend to submit comments on
the project.
(3) Invitation.--The lead agency shall identify, as
early as practicable in the environmental review for a
project, any agencies other than an agency described in
paragraph (2) that may have an interest in the project,
including, where appropriate, Governors of affected
States, and heads of appropriate tribal and local
(including county) governments, and shall invite such
identified agencies and officials to become
participating agencies in the environmental review for
the project. The invitation shall set a deadline of 30
days for responses to be submitted, which may only be
extended by the lead agency for good cause shown. Any
agency that fails to respond prior to the deadline
shall be deemed to have declined the invitation.
(4) Effect of declining participating agency
invitation.--Any agency that declines a designation or
invitation by the lead agency to be a participating
agency shall be precluded from submitting comments on
any document prepared under NEPA for that project or
taking any measures to oppose, based on the
environmental review, any permit, license, or approval
related to that project.
(5) Effect of designation.--Designation as a
participating agency under this subsection does not
imply that the participating agency--
(A) supports a proposed project; or
(B) has any jurisdiction over, or special
expertise with respect to evaluation of, the
project.
(6) Cooperating agency.--A participating agency may
also be designated by a lead agency as a ``cooperating
agency'' under the regulations contained in part 1500
of title 40, Code of Federal Regulations, as in effect
on January 1, 2011. Designation as a cooperating agency
shall have no effect on designation as participating
agency. No agency that is not a participating agency
may be designated as a cooperating agency.
(7) Concurrent reviews.--Each Federal agency
shall--
(A) carry out obligations of the Federal
agency under other applicable law concurrently
and in conjunction with the review required
under NEPA; and
(B) in accordance with the rules made by
the Council on Environmental Quality pursuant
to subsection (n)(1), make and carry out such
rules, policies, and procedures as may be
reasonably necessary to enable the agency to
ensure completion of the environmental review
and environmental decisionmaking process in a
timely, coordinated, and environmentally
responsible manner.
(8) Comments.--Each participating agency shall
limit its comments on a project to areas that are
within the authority and expertise of such
participating agency. Each participating agency shall
identify in such comments the statutory authority of
the participating agency pertaining to the subject
matter of its comments. The lead agency shall not act
upon, respond to or include in any document prepared
under NEPA, any comment submitted by a participating
agency that concerns matters that are outside of the
authority and expertise of the commenting participating
agency.
(f) Project Initiation Request.--
(1) Notice.--A project sponsor shall provide the
Federal agency responsible for undertaking a project
with notice of the initiation of the project by
providing a description of the proposed project, the
general location of the proposed project, and a
statement of any Federal approvals anticipated to be
necessary for the proposed project, for the purpose of
informing the Federal agency that the environmental
review should be initiated.
(2) Lead agency initiation.--The agency receiving a
project initiation notice under paragraph (1) shall
promptly identify the lead agency for the project, and
the lead agency shall initiate the environmental review
within a period of 45 days after receiving the notice
required by paragraph (1) by inviting or designating
agencies to become participating agencies, or, where
the lead agency determines that no participating
agencies are required for the project, by taking such
other actions that are reasonable and necessary to
initiate the environmental review.
(g) Alternatives Analysis.--
(1) Participation.--As early as practicable during
the environmental review, but no later than during
scoping for a project requiring the preparation of an
environmental impact statement, the lead agency shall
provide an opportunity for involvement by cooperating
agencies in determining the range of alternatives to be
considered for a project.
(2) Range of alternatives.--Following participation
under paragraph (1), the lead agency shall determine
the range of alternatives for consideration in any
document which the lead agency is responsible for
preparing for the project, subject to the following
limitations:
(A) No evaluation of certain
alternatives.--No Federal agency shall evaluate
any alternative that was identified but not
carried forward for detailed evaluation in an
environmental document or evaluated and not
selected in any environmental document prepared
under NEPA for the same project.
(B) Only feasible alternatives evaluated.--
Where a project is being constructed, managed,
funded, or undertaken by a project sponsor that
is not a Federal agency, Federal agencies shall
only be required to evaluate alternatives that
the project sponsor could feasibly undertake,
consistent with the purpose of and the need for
the project, including alternatives that can be
undertaken by the project sponsor and that are
technically and economically feasible.
(3) Methodologies.--
(A) In general.--The lead agency shall
determine, in collaboration with cooperating
agencies at appropriate times during the
environmental review, the methodologies to be
used and the level of detail required in the
analysis of each alternative for a project. The
lead agency shall include in the environmental
document a description of the methodologies
used and how the methodologies were selected.
(B) No evaluation of inappropriate
alternatives.--When a lead agency determines
that an alternative does not meet the purpose
and need for a project, that alternative is not
required to be evaluated in detail in an
environmental document.
(4) Preferred alternative.--At the discretion of
the lead agency, the preferred alternative for a
project, after being identified, may be developed to a
higher level of detail than other alternatives in order
to facilitate the development of mitigation measures or
concurrent compliance with other applicable laws if the
lead agency determines that the development of such
higher level of detail will not prevent the lead agency
from making an impartial decision as to whether to
accept another alternative which is being considered in
the environmental review.
(5) Employment analysis.--The evaluation of each
alternative in an environmental impact statement or an
environmental assessment shall identify the potential
effects of the alternative on employment, including
potential short-term and long-term employment increases
and reductions and shifts in employment.
(h) Coordination and Scheduling.--
(1) Coordination plan.--
(A) In general.--The lead agency shall
establish and implement a plan for coordinating
public and agency participation in and comment
on the environmental review for a project or
category of projects to facilitate the
expeditious resolution of the environmental
review.
(B) Schedule.--
(i) In general.--The lead agency
shall establish as part of the
coordination plan for a project, after
consultation with each participating
agency and, where applicable, the
project sponsor, a schedule for
completion of the environmental review.
The schedule shall include deadlines,
consistent with subsection (i), for
decisions under any other Federal laws
(including the issuance or denial of a
permit or license) relating to the
project that is covered by the
schedule.
(ii) Factors for consideration.--In
establishing the schedule, the lead
agency shall consider factors such as--
(I) the responsibilities of
participating agencies under
applicable laws;
(II) resources available to
the participating agencies;
(III) overall size and
complexity of the project;
(IV) overall schedule for
and cost of the project;
(V) the sensitivity of the
natural and historic resources
that could be affected by the
project; and
(VI) the extent to which
similar projects in geographic
proximity were recently subject
to environmental review or
similar State procedures.
(iii) Compliance with the
schedule.--
(I) All participating
agencies shall comply with the
time periods established in the
schedule or with any modified
time periods, where the lead
agency modifies the schedule
pursuant to subparagraph (D).
(II) The lead agency shall
disregard and shall not respond
to or include in any document
prepared under NEPA, any
comment or information
submitted or any finding made
by a participating agency that
is outside of the time period
established in the schedule or
modification pursuant to
subparagraph (D) for that
agency's comment, submission or
finding.
(III) If a participating
agency fails to object in
writing to a lead agency
decision, finding or request
for concurrence within the time
period established under law or
by the lead agency, the agency
shall be deemed to have
concurred in the decision,
finding or request.
(C) Consistency with other time periods.--A
schedule under subparagraph (B) shall be
consistent with any other relevant time periods
established under Federal law.
(D) Modification.--The lead agency may--
(i) lengthen a schedule established
under subparagraph (B) for good cause;
and
(ii) shorten a schedule only with
the concurrence of the cooperating
agencies.
(E) Dissemination.--A copy of a schedule
under subparagraph (B), and of any
modifications to the schedule, shall be--
(i) provided within 15 days of
completion or modification of such
schedule to all participating agencies
and to the project sponsor; and
(ii) made available to the public.
(F) Roles and responsibility of lead
agency.--With respect to the environmental
review for any project, the lead agency shall
have authority and responsibility to take such
actions as are necessary and proper, within the
authority of the lead agency, to facilitate the
expeditious resolution of the environmental
review for the project.
(i) Deadlines.--The following deadlines shall apply to any
project subject to review under NEPA and any decision under any
Federal law relating to such project (including the issuance or
denial of a permit or license or any required finding):
(1) Environmental review deadlines.--The lead
agency shall complete the environmental review within
the following deadlines:
(A) Environmental impact statement
projects.--For projects requiring preparation
of an environmental impact statement--
(i) the lead agency shall issue an
environmental impact statement within 2
years after the earlier of the date the
lead agency receives the project
initiation request or a Notice of
Intent to Prepare an Environmental
Impact Statement is published in the
Federal Register; and
(ii) in circumstances where the
lead agency has prepared an
environmental assessment and determined
that an environmental impact statement
will be required, the lead agency shall
issue the environmental impact
statement within 2 years after the date
of publication of the Notice of Intent
to Prepare an Environmental Impact
Statement in the Federal Register.
(B) Environmental assessment projects.--For
projects requiring preparation of an
environmental assessment, the lead agency shall
issue a finding of no significant impact or
publish a Notice of Intent to Prepare an
Environmental Impact Statement in the Federal
Register within 1 year after the earlier of the
date the lead agency receives the project
initiation request, makes a decision to prepare
an environmental assessment, or sends out
participating agency invitations.
(2) Extensions.--
(A) Requirements.--The environmental review
deadlines may be extended only if--
(i) a different deadline is
established by agreement of the lead
agency, the project sponsor, and all
participating agencies; or
(ii) the deadline is extended by
the lead agency for good cause.
(B) Limitation.--The environmental review
shall not be extended by more than 1 year for a
project requiring preparation of an
environmental impact statement or by more than
180 days for a project requiring preparation of
an environmental assessment.
(3) Environmental review comments.--
(A) Comments on draft environmental impact
statement.--For comments by agencies and the
public on a draft environmental impact
statement, the lead agency shall establish a
comment period of not more than 60 days after
publication in the Federal Register of notice
of the date of public availability of such
document, unless--
(i) a different deadline is
established by agreement of the lead
agency, the project sponsor, and all
participating agencies; or
(ii) the deadline is extended by
the lead agency for good cause.
(B) Other comments.--For all other comment
periods for agency or public comments in the
environmental review process, the lead agency
shall establish a comment period of no more
than 30 days from availability of the materials
on which comment is requested, unless--
(i) a different deadline is
established by agreement of the lead
agency, the project sponsor, and all
participating agencies; or
(ii) the deadline is extended by
the lead agency for good cause.
(4) Deadlines for decisions under other laws.--
Notwithstanding any other provision of law, in any case
in which a decision under any other Federal law
relating to the undertaking of a project being reviewed
under NEPA (including the issuance or denial of a
permit or license) is required to be made, the
following deadlines shall apply:
(A) Decisions prior to record of decision
or finding of no significant impact.--If a
Federal agency is required to approve, or
otherwise to act upon, a permit, license, or
other similar application for approval related
to a project prior to the record of decision or
finding of no significant impact, such Federal
agency shall approve or otherwise act not later
than the end of a 90-day period beginning--
(i) after all other relevant agency
review related to the project is
complete; and
(ii) after the lead agency
publishes a notice of the availability
of the final environmental impact
statement or issuance of other final
environmental documents, or no later
than such other date that is otherwise
required by law, whichever event occurs
first.
(B) Other decisions.--With regard to any
approval or other action related to a project
by a Federal agency that is not subject to
subparagraph (A), each Federal agency shall
approve or otherwise act not later than the end
of a period of 180 days beginning--
(i) after all other relevant agency
review related to the project is
complete; and
(ii) after the lead agency issues
the record of decision or finding of no
significant impact, unless a different
deadline is established by agreement of
the Federal agency, lead agency, and
the project sponsor, where applicable,
or the deadline is extended by the
Federal agency for good cause, provided
that such extension shall not extend
beyond a period that is 1 year after
the lead agency issues the record of
decision or finding of no significant
impact.
(C) Failure to act.--In the event that any
Federal agency fails to approve, or otherwise
to act upon, a permit, license, or other
similar application for approval related to a
project within the applicable deadline
described in subparagraph (A) or (B), the
permit, license, or other similar application
shall be deemed approved by such agency and the
agency shall take action in accordance with
such approval within 30 days of the applicable
deadline described in subparagraph (A) or (B).
(D) Final agency action.--Any approval
under subparagraph (C) is deemed to be final
agency action, and may not be reversed by any
agency. In any action under chapter 7 seeking
review of such a final agency action, the court
may not set aside such agency action by reason
of that agency action having occurred under
this paragraph.
(j) Issue Identification and Resolution.--
(1) Cooperation.--The lead agency and the
participating agencies shall work cooperatively in
accordance with this section to identify and resolve
issues that could delay completion of the environmental
review or could result in denial of any approvals
required for the project under applicable laws.
(2) Lead agency responsibilities.--The lead agency
shall make information available to the participating
agencies as early as practicable in the environmental
review regarding the environmental, historic, and
socioeconomic resources located within the project area
and the general locations of the alternatives under
consideration. Such information may be based on
existing data sources, including geographic information
systems mapping.
(3) Participating agency responsibilities.--Based
on information received from the lead agency,
participating agencies shall identify, as early as
practicable, any issues of concern regarding the
project's potential environmental, historic, or
socioeconomic impacts. In this paragraph, issues of
concern include any issues that could substantially
delay or prevent an agency from granting a permit or
other approval that is needed for the project.
(4) Issue resolution.--
(A) Meeting of participating agencies.--At
any time upon request of a project sponsor, the
lead agency shall promptly convene a meeting
with the relevant participating agencies and
the project sponsor, to resolve issues that
could delay completion of the environmental
review or could result in denial of any
approvals required for the project under
applicable laws.
(B) Notice that resolution cannot be
achieved.--If a resolution cannot be achieved
within 30 days following such a meeting and a
determination by the lead agency that all
information necessary to resolve the issue has
been obtained, the lead agency shall notify the
heads of all participating agencies, the
project sponsor, and the Council on
Environmental Quality for further proceedings
in accordance with section 204 of NEPA, and
shall publish such notification in the Federal
Register.
(k) Limitation on Use of Social Cost of Carbon.--
(1) In general.--In the case of any environmental
review or environmental decisionmaking process, a lead
agency may not use the social cost of carbon.
(2) Definition.--In this subsection, the term
``social cost of carbon'' means the social cost of
carbon as described in the technical support document
entitled ``Technical Support Document: Technical Update
of the Social Cost of Carbon for Regulatory Impact
Analysis Under Executive Order No. 12866'', published
by the Interagency Working Group on Social Cost of
Carbon, United States Government, in May 2013, revised
in November 2013, or any successor thereto or
substantially related document, or any other estimate
of the monetized damages associated with an incremental
increase in carbon dioxide emissions in a given year.
(l) Report to Congress.--The head of each Federal agency
shall report annually to Congress--
(1) the projects for which the agency initiated
preparation of an environmental impact statement or
environmental assessment;
(2) the projects for which the agency issued a
record of decision or finding of no significant impact
and the length of time it took the agency to complete
the environmental review for each such project;
(3) the filing of any lawsuits against the agency
seeking judicial review of a permit, license, or
approval issued by the agency for an action subject to
NEPA, including the date the complaint was filed, the
court in which the complaint was filed, and a summary
of the claims for which judicial review was sought; and
(4) the resolution of any lawsuits against the
agency that sought judicial review of a permit,
license, or approval issued by the agency for an action
subject to NEPA.
(m) Limitations on Claims.--
(1) In general.--Notwithstanding any other
provision of law, a claim arising under Federal law
seeking judicial review of a permit, license, or
approval issued by a Federal agency for an action
subject to NEPA shall be barred unless--
(A) in the case of a claim pertaining to a
project for which an environmental review was
conducted and an opportunity for comment was
provided, the claim is filed by a party that
submitted a comment during the environmental
review on the issue on which the party seeks
judicial review, and such comment was
sufficiently detailed to put the lead agency on
notice of the issue upon which the party seeks
judicial review; and
(B) filed within 180 days after publication
of a notice in the Federal Register announcing
that the permit, license, or approval is final
pursuant to the law under which the agency
action is taken, unless a shorter time is
specified in the Federal law pursuant to which
judicial review is allowed.
(2) New information.--The preparation of a
supplemental environmental impact statement, when
required, is deemed a separate final agency action and
the deadline for filing a claim for judicial review of
such action shall be 180 days after the date of
publication of a notice in the Federal Register
announcing the record of decision for such action. Any
claim challenging agency action on the basis of
information in a supplemental environmental impact
statement shall be limited to challenges on the basis
of that information.
(3) Rule of construction.--Nothing in this
subsection shall be construed to create a right to
judicial review or place any limit on filing a claim
that a person has violated the terms of a permit,
license, or approval.
(n) Categories of Projects.--The authorities granted under
this subchapter may be exercised for an individual project or a
category of projects.
(o) Effective Date.--The requirements of this subchapter
shall apply only to environmental reviews and environmental
decisionmaking processes initiated after the date of enactment
of this subchapter. In the case of a project for which an
environmental review or environmental decisionmaking process
was initiated prior to the date of enactment of this
subchapter, the provisions of subsection (i) shall apply,
except that, notwithstanding any other provision of this
section, in determining a deadline under such subsection, any
applicable period of time shall be calculated as beginning from
the date of enactment of this subchapter.
(p) Applicability.--Except as provided in subsection (p),
this subchapter applies, according to the provisions thereof,
to all projects for which a Federal agency is required to
undertake an environmental review or make a decision under an
environmental law for a project for which a Federal agency is
undertaking an environmental review.
(q) Savings Clause.--Nothing in this section shall be
construed to supersede, amend, or modify sections 134, 135,
139, 325, 326, and 327 of title 23, sections 5303 and 5304 of
title 49, or subtitle C of title I of division A of the Moving
Ahead for Progress in the 21st Century Act and the amendments
made by such subtitle (Public Law 112-141).
* * * * * * *
Dissenting Views
INTRODUCTION
H.R. 348, the ``Responsibly And Professionally Invigorating
Development Act of 2015,'' or the ``RAPID Act,'' is an ill-
conceived effort to force agencies to prioritize speed over
analysis for congressionally-mandated environmental reviews of
construction projects that are federally funded or that require
Federal approval by a Federal agency. The bill amends the
environmental review process under the National Environmental
Policy Act (NEPA)\1\ to impose numerous new requirements and
deadlines that Federal agencies must follow. Even though the
Administrative Procedure Act (APA)\2\ does not include a single
provision concerning environmental law, H.R. 348 is drafted as
an amendment to the APA.
---------------------------------------------------------------------------
\1\Pub. L. No. 91-190 (1970), codified at 42 U.S.C. Sec. Sec. 4321
et seq. (2015).
\2\5 U.S.C. Sec. 551-59, 701-06, 1305, 3105, 3344, 5372, 7521
(2015).
---------------------------------------------------------------------------
Contrary to its title, the RAPID Act will lead to more
litigation and delay rather than making the permit approval
process faster. It will create a parallel universe of
regulatory requirements that would pertain only to certain
types of projects, even though NEPA has provided an effective
framework for more than 40 years for all types of projects that
require Federal approval pursuant to a Federal law, such as the
Clean Air Act.\3\ Most importantly, H.R. 348 will potentially
shift control of the regulatory approval process from Federal
agencies that are charged with protecting public health and
safety to the private sector. It does this by skewing the
process in favor of project approval and one-size-fits-all
deadlines, while severely truncating the deliberative process
pursuant to which the environmental consequences of proposed
projects are considered.
---------------------------------------------------------------------------
\3\42 U.S.C. Sec. Sec. 7401 et seq. (2015).
---------------------------------------------------------------------------
Specifically, H.R. 348: (1) is a solution in search of a
problem as it attempts to address purported delays in the
environmental review and permit approval process that have
nothing to do with NEPA, the law that this bill primarily
attempts to re-write; (2) creates a parallel environmental
review process for an ill-defined subset of Federal projects
that will lead to confusion, spawn litigation, and will result
in further delay; (3) forecloses potentially valuable agency
and public input and imposes unduly rigid deadlines for agency
action; and (4) institutionalizes a bias in favor of approving
an agency's preferred alternative.
Not surprisingly, the Administration threatened to veto
H.R. 348's predecessor from the 113th Congress, stating that it
would ``lead to more confusion and delay, limit public
participation in the permitting process, and ultimately hamper
economic growth.''\4\ In addition, a number of respected
environmental groups--including the League of Conservation
Voters, Natural Resources Defense Council, Sierra Club,
Southern Environmental Law Center, Center for Biological
Diversity, Earthjustice, Defenders of Wildlife, Environmental
Protection Information Center, Klamath Forest Alliance, and The
Wilderness Society--strenuously oppose this measure because it
``will create more delays in permitting, result in less
flexibility in the process, and, turning the role of government
on its head, tilt the entire permitting process towards
shareholder interest, not the public interest.''\5\
---------------------------------------------------------------------------
\4\Executive Office of the President, Office of Management and
Budget, Statement of Administration Policy on H.R. 2641--The
Responsibly and Professionally Invigorating Development Act of 2013
(March 5, 2014), https://www.whitehouse.gov/sites/default/files/omb/
legislative/sap/113/saphr2641r_20140305.pdf. The Council on
Environmental Quality also strenuously opposed a nearly identical
version of the RAPID Act in the 112th Congress. Letter from Nancy H.
Sutley, Chair, Council on Environmental Quality, Executive Office of
the President, to Rep. Howard Coble (R-NC), Chair, and Rep. Steve Cohen
(D-TN), Ranking Member, Subcomm. on Courts, Commercial and
Administrative Law of the H. Comm. on the Judiciary (Apr. 24, 2012) (on
file with H. Comm. on the Judiciary Democratic staff) (noting that the
legislation is ``deeply flawed'' and that it ``will undermine the
environmental review process'').
\5\Letter from Bill Snape, Senior Counsel, Center for Biological
Diversity, et al. to Members of the H. Committee on the Judiciary (Mar.
24, 2015) (on file with the H. Committee on the Judiciary, Democratic
Staff).
---------------------------------------------------------------------------
For these reasons and those described below, we
respectfully dissent and urge our colleagues to reject this
seriously flawed bill.
DESCRIPTION
H.R. 348 amends the APA to establish an extremely complex
series of requirements that Federal agencies must adhere to
with respect to reviewing the environmental impact of
construction projects that are federally funded or that require
approval by a Federal agency. The bill's principal provisions
are summarized below and a detailed section-by-section
explanation of the bill appears at the end of these views.
H.R. 348:
(1) Lauthorizes a project sponsor, upon the request of
a lead agency (the agency responsible preparing the
environmental document), to prepare any document for
environmental review required in support of, or for
approval of, such an activity if such agency furnishes
oversight and independently evaluates, approves, and
adopts such document prior to taking action or making
any approval based on such document;
(2) Ldeems a project to be approved in the event that a
Federal agency fails to approve or otherwise act upon a
permit, license, or other similar application for
approval related to a project within such deadlines,
and specifies such approval to be final agency action
that may not be reversed by an agency;
(3) Lprohibits, after the lead agency issues a record
of decision, any Federal agency responsible for making
any approval for a project from relying on a document
other than the environmental document prepared by the
lead agency;
(4) Lallows the lead agency, upon the request of a
project sponsor, to utilize secondary and cumulative
impact analyses included in documents prepared under
NEPA for projects in the same geographic area if such
documents are pertinent to the NEPA decision for the
project under review;
(5) Lauthorizes a lead agency to adopt for a project an
environmental document for a similar project that is in
geographical proximity and that was subject to
environmental review or similar state procedures within
the preceding 5 years if the agency determines that
there is a reasonable likelihood that the projects will
have similar environmental impacts;
(6) Lrequires the lead agency to invite and designate
as a participating agency in the preparation of an
environmental document for a project any Federal agency
that is required to adopt such document;
(7) Lprecludes any agency that declines to participate
from submitting comments on such document or taking
measures to oppose any permit, license, or approval
related to that project based on the environmental
review and prohibits the lead agency from acting upon,
responding to, or including in any document prepared
under NEPA any comment submitted by a participating
agency that concerns matters outside of such agency's
authority and expertise;
(8) Limposes a 1-year deadline for issuing a finding of
no significant impact or a Notice of Intent to Prepare
an Environmental Impact Statement and a 2-year deadline
for completing an environmental impact statement for
projects that require such analyses; and
(9) Limposes deadlines for decisions required under any
other Federal law relating to the undertaking of a
project being reviewed under NEPA.
BACKGROUND
Signed into law by President Richard Nixon in 1970, NEPA
was one of the first environmental statutes enacted in
recognition of the importance of the environment and the need
to have a coordinated regulatory response by Federal agencies
charged with reviewing proposed undertakings requiring Federal
funding or approval. As a representative on behalf of the
Natural Resources Defense Council testified at the hearing on a
substantively similar version of H.R. 348 in the 113th
Congress, NEPA ``protects our health, our homes, and our
environment.''\6\ For more than 40 years, it has emphasized
```smart from the start' Federal decision making'' through an
inherently democratic process that empowers ``the public,
including citizens, local officials, landowners, industry, and
taxpayers'' to weigh in on these decisions.\7\
---------------------------------------------------------------------------
\6\The Responsibly And Professionally Invigorating Development Act
of 2013: Hearing on H.R. 2641 Before the Subcomm. on Regulatory Reform,
Commercial and Antitrust Law of the H. Comm. on the Judiciary, 113th
Cong. (2013) (prepared testimony of Scott Slesinger, Legislative
Director for the Natural Resources Defense Council).
\7\Id.
---------------------------------------------------------------------------
Approximately 85 agencies are subject to NEPA and must
thereby consider the environmental impact of these undertakings
and involve the public and other agencies. The Act's procedural
requirements specify that agencies must take a ``hard look,''
but environmental factors do not necessarily trump all other
considerations.
The NEPA process consists of a three-tiered evaluation of
the environmental effects of a Federal action that must be
conducted by the lead agency, which is the agency that has
ultimate authority to prepare the evaluation. The first type of
evaluation consists of an administrative determination by the
agency that the proposed action can be categorically excluded
from a detailed environmental analysis if it meets certain
criteria previously determined to have no significant
environmental impact.\8\ Annually, the number of these
determinations may be in the millions as the vast amount of
undertakings subject to NEPA fall within this category.
---------------------------------------------------------------------------
\8\42 U.S.C. Sec. 4321 (2015).
---------------------------------------------------------------------------
If a proposed undertaking cannot be categorically excluded,
i.e., it has some level of environmental impact, then the
Federal agency must prepare a written environmental assessment
(EA) to determine whether or not a Federal action would
significantly affect the environment. Annually, the number of
EAs can range from 30,000 to 50,000. Where such action would
not significantly impact the environment, then the agency
issues a finding of no significant impact (FONSI), which can
include measures that an agency must take to mitigate
potentially significant impacts.\9\
---------------------------------------------------------------------------
\9\Id.
---------------------------------------------------------------------------
Where the proposed action presents significant
environmental consequences, a draft and final environmental
impact statements (EIS) must be prepared that provides a more
detailed evaluation of such action and alternatives.\10\ The
EIS is prepared by an agency (referred to as the ``lead
agency'') or outside contractor who must file a financial
disclosure form disclosing any conflicts of interest. Other
Federal agencies, the public, and outside parties may provide
input into the preparation of an EIS and then comment on the
draft EIS when it is completed.\11\ Annually, the number of
EISs approximate 500.
---------------------------------------------------------------------------
\10\U.S. Dep't of Environmental Protection, National Environmental
Policy Act--Basic Information, available at http://www.epa.gov/
compliance/basics/nepa.html (last visited April 2, 2015).
\11\Id.
---------------------------------------------------------------------------
An EIS must meet certain specified requirements, including
the preparation of a purpose and need statement, which provides
the foundation of the review. The statement must also identify
all reasonable alternatives to the proposed action that would
satisfy the need for it. For each alternative, the EIS must
consider its environmental, socioeconomic, and cumulative
effect and impact, in addition to numerous other steps that a
lead agency must undertake.\12\
---------------------------------------------------------------------------
\12\Responsibilities of lead agencies include: publication of a
public notice of intent, scoping (identification of issues that are
important to analyze in the EIS, including interagency concerns),
appointing agencies that should participate in the environmental review
process, issuing a draft EIS that is then published in the Federal
Register with a minimum of a 45-day public review and comment period,
responding to all substantive comments at the end of the comment
period, publishing a 30-day notice of the availability of a final EIS
that includes a summary of the comments and responses thereto, and
rendering a final decision. Various factors can affect these
requirements and their timeliness, including delays in funding, changes
in circumstances, or changes in the state or Federal administrations.
In addition, there may be a need to publish a supplemental EIS. Should
there be a dispute, the Council on Environmental Quality (CEQ) has a
referral process.
---------------------------------------------------------------------------
In preparing an environmental review under NEPA, the lead
agency must consider a host of factors, including the economic
impact of the undertaking; the proposed action's effect on
historical preservation efforts; and various environmental
laws, such as the Endangered Species Act.\13\ Undertakings can
include an array of agencies, including the U.S. Fish and
Wildlife Service, National Park Service, U.S. Army Corps of
Engineers, and the Department of Transportation, which may have
their own regulations. The lead agency must also consider
alternatives to the proposed undertaking.
---------------------------------------------------------------------------
\13\16 U.S.C. Sec. Sec. 1531 et seq. (2015).
---------------------------------------------------------------------------
As part of this review process, the lead agency seeks
feedback from cooperating agencies. These agencies--such as
state, local or tribal governmental entities--are required by
law to have an interest or that have special expertise in the
proposed undertaking. Regulations have been promulgated to
determine who qualifies as a cooperating agency and what such
agency must do.
NEPA established the Council on Environmental Quality (CEQ)
to oversee the Act's Implementation.\14\ Located within the
Executive Office of the President, the DEQ's members are
appointed by the President with the advice and consent of the
Senate.\15\ The CEQ is charged with: (1) analyzing and
interpreting ``environmental trends and information of all
kinds;'' (2) appraising ``programs and activities of the
Federal Government in the light of the policy set forth'' in
NEPA; (3) being ``conscious of and responsive to the
scientific, economic, social, esthetic, and cultural needs and
interests of the Nation;'' (4) and formulating and recommending
``national policies to promote the improvement of the quality
of the environment.''\16\ NEPA further enumerates the CEQ's
specific duties.\17\
---------------------------------------------------------------------------
\14\42 U.S.C. Sec. 4321 (2015).
\15\42 U.S.C. Sec. 4342 (2015).
\16\Id.
\17\42 U.S.C. Sec. 4344 (2015).
---------------------------------------------------------------------------
In 1978, the CEQ promulgated regulations to implement NEPA
that are binding on all Federal agencies.\18\ It has also
issued guidance ``on various aspects'' of these regulations,
which included ``an information document on `Forty Most Asked
Questions Concerning CEQ's National Environmental Policy Act,'
Scoping Guidance, and Guidance Regarding NEPA
Regulations.''\19\ In turn, most Federal agencies have issued
their own implementing regulations and guidance tailored to
such agencies' specific mission and activities.\20\
---------------------------------------------------------------------------
\18\40 CFR Parts 1500-1508 (2015).
\19\U.S. Dep't of Environmental Protection, supra note 10.
\20\Id.
---------------------------------------------------------------------------
From time to time, the CEQ has also issued guidance for
Federal agencies to clarify the requirements of NEPA and CEQ's
regulations.\21\ For example, the CEQ issued guidance in 2012
consisting of a series of principles intended to improve the
process for preparing efficient and timely environmental
reviews under NEPA.\22\ And, last year, the CEQ published two
handbooks to ``encourage more efficient environmental reviews
under NEPA by integrating the NEPA process with the review
processes of the National Historic Preservation Act Section 106
and the California Environmental Quality Act.''\23\ According
to CEQ, these handbooks ``will facilitate quicker, more
informed Federal decision-making on projects that impact
American communities and help agencies improve efficiency,
maximize staff resources, and reduce costs.''\24\
---------------------------------------------------------------------------
\21\See, e.g., Memorandum from Nancy H. Sutley, Chair, Council on
Environmental Quality, Executive Office of the President, to heads of
Federal departments and agencies, at 2, 5-14 (Mar. 6, 2012) (requiring
that environmental reviews are ``written in plain language,'' that
agencies avoid duplication through integrated decisionmaking, scoping,
and collaboration with local, state, and tribal governments where
permissible). ``Scoping'' is defined as ``an early and open process for
determining the scope of issues to be addressed and for identifying the
significant issues related to a proposed action.'' 40 C.F.R.
Sec. 1501.7 (2015).
\22\Id.
\23\The White House--Council on Environmental Quality, Steps to
Modernize and Reinvigorate NEPA, available at http://
www.whitehouse.gov/administration/eop/ceq/initatives/nepa (last visited
April 2, 2015).
\24\Id.
---------------------------------------------------------------------------
CONCERNS WITH H.R. 348
H.R. 348 imposes a series of highly problematic review and
approval requirements for agencies responsible for approving
construction projects that are federally funded or that require
Federal approval. These new requirements are a solution in
search of a problem because NEPA has already provided, for more
than 40 years, an effective framework for all types of proposed
actions, not just construction projects. Further, the CEQ, to
ensure compliance with NEPA, has issued regulations and
guidance to ensure efficiency and fairness in permitting that
make measures such as H.R. 348 unnecessary.
The complex remedy that this legislation applies to a
perceived problem will create real problems in the permit
approval process. In fact, H.R. 348 will lead to more
litigation and delay rather than streamlining the permit
approval process. It will also create a parallel universe of
regulatory requirements that would pertain only to certain
types of projects. Most importantly, it will shift more control
of the approval process to private interests and away from the
Federal agencies that are charged with protecting public health
and safety.
I. THE RAPID ACT IS A SOLUTION IN SEARCH OF A PROBLEM
While not perfect, NEPA works very well. The vast majority
of projects requiring Federal approval go through the NEPA
process in a timely manner. Of the remaining projects that
actually require a formal environmental review leading to an
EIS or EA because of the complexity of the issues they present,
NEPA provides flexibility to permit careful review without
artificial deadlines.
To the extent that the RAPID Act is intended to reduce
delays in the conduct of environmental reviews of Federal
projects, it is aimed at the wrong target. Broadly speaking,
the bill attempts to short-circuit the existing environmental
review processes under NEPA and its implementing regulations.
As Dinah Bear, who served as the CEQ's General Counsel for 25
years during the Reagan, George H.W. Bush, Clinton, and George
W. Bush administrations observed, most delays in the
environmental review processes are caused by factors other than
NEPA or are justified by the nature of the project in question.
Specifically, she noted:
[T]he 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 (both internal and interagency), and lack of
coordination between Federal agencies and agencies at
the county, tribal and state level, including and in
particular coordinated, single environmental review
processes in cases where government agencies at other
levels have environmental review procedures. Causes of
justified delay include the complexity of proposed
projects and the associated impacts of them, changes in
the proposed project, the extent and nature of public
controversy, changes in budget and policy direction,
including Congressional oversight, and new
information.\25\
---------------------------------------------------------------------------
\25\Responsibly And Professionally Invigorating Development (RAPID)
Act of 2012: Hearing on H.R. 4377 Before the Subcomm. on Courts,
Commercial and Admin. L. of the H. Comm. on the Judiciary, 112th Cong.
193 (2012) (response of Dinah Bear to questions for the record from
Subcommittee Ranking Member Steve Cohen) (emphases in the original).
Amit Narang, Regulatory Policy Advocate for Public Citizen,
similarly noted in his testimony on H.R. 348 that this bill is
founded ``on the assumption that agency compliance with NEPA
analyses is a primary cause for delay in approving permits,''
but this view ``ignores the many factors external to the NEPA
analytical process that also impact the timing of a permit
approval.''\26\ In a similar vein, the Congressional Research
Service, in an April 2012 report on the environmental review
process for federally funded highway projects questioned
whether the NEPA compliance process is a significant source of
delay. The reported noted that:
---------------------------------------------------------------------------
\26\Hearing on H.R. 348, the ``Responsibly And Professionally
Invigorating Development Act of 2015'' (RAPID Act); H.R. 712, the
``Sunshine for Regulatory Decrees and Settlements Act of 2015''; and,
H.R. 1155, the ``Searching for and Cutting Regulations that are
Unnecessarily Burdensome Act of 2015'' (SCRUB Act) Before the Subcomm.
on Regulatory Reform, Commercial and Antitrust Law of the H. Comm. on
the Judiciary, 114th Cong. 10 (2015) (statement of Amit Narang,
Regulatory Policy Advocate, Public Citizen).
The majority of [Federal Highway Administration]-
approved projects required limited documentation or
analyses under NEPA. Further, when environmental
requirements have caused project delays, requirements
established under laws other than NEPA have generally
been the source. This calls into question the degree to
which the NEPA compliance process is a significant
source of delay in completing either the environmental
review process or overall project delivery. Causes of
delay that have been identified 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. Further, approaches that
have been found to expedite environmental reviews
involve procedures that local and state transportation
agencies may implement currently, such as efficient
coordination of interagency involvement; early and
continued involvement with stakeholders interested in
the project; and identifying environmental issues and
requirements early in project development.\27\
---------------------------------------------------------------------------
\27\Linda Luther, Cong. Research Serv., R42479, The Role of the
Environmental Review Process in Federally Funded Highway Projects:
Background and Issues for Congress (2012).
In light of the foregoing, the RAPID Act's focus on upending
the NEPA review process for construction projects is, at best,
misplaced.
II. THE RAPID ACT TILTS THE APPROVAL PROCESS IN FAVOR OF THE PRIVATE
SECTOR AND IMPOSES UNREALISTIC DEADLINES
One of the most critical concerns presented by the RAPID
Act is that many of its provisions will give project proponents
more control of the approval process, which presents serious
public health and safety concerns. For example, new section
560(c) would permit the project sponsor to prepare any document
for purposes of an environmental review. This represents a
fundamental shift in control of the review process from the
agency to the private sector particularly with respect to EISs.
While under NEPA the project sponsor may retain the services of
an independent contractor to prepare certain documents, the
contractual arrangement is between the agency and the
contractor, and the contractor must complete a financial
disclosure statement disclosing any conflicts of interest. As a
representative on behalf of the Natural Resources Defense
Council testified at the hearing on a substantively similar
version H.R. 348 in the 113th Congress, new section 560(c)
threatens to blur the important distinctions between lead
agencies and project sponsors in the permitting process:
[P]rojects that require an environmental impact
statement (EIS) are those that by definition may have
genuinely significant impacts. Government agencies,
whether at the Federal, state, tribal or local level,
are structured to represent the public and are
accountable to the public through a variety of
mechanisms. Corporations have legitimately different
responsibilities to their shareholders. Both the public
at large and corporate shareholders have the right to
expect these respective sectors to behave in ways that
are responsible about those distinctions. . . .
However, the law has always wisely drawn a line between
private sector and public project proponent involvement
when the proposed action is one that triggers the
statutory requirement for a ``detailed statement'' for
proposed actions significantly affecting the quality of
the human environment, that is, an EIS. In that
situation--a very small percentage of the thousands of
actions falling under NEPA annually--the distinction
between private sector project proponents and
government agencies is drawn more sharply. Private
sector project proponents are not permitted to prepare
EISs. Any contractor selected by the agency to prepare
the EIS must execute a disclosure statement prepared by
the lead agency specifying that it has no financial or
other interest in the outcome of the project. 40 C.F.R.
Sec. 1506.5(c). Obviously, a private sector project
sponsor inherently has a financial interest in the
project.\28\
---------------------------------------------------------------------------
\28\The Responsibly And Professionally Invigorating Development Act
of 2013: Hearing on H.R. 2641 Before the Subcomm. on Regulatory Reform,
Commercial and Antitrust Law of the H. Comm. on the Judiciary, 113th
Cong. 4-5 (2013) (prepared testimony of Scott Slesinger, Legislative
Director for the Natural Resources Defense Council).
Another concern is that the bill imposes certain deadlines
by which the environmental review must be complete. The failure
of an agency to meet these deadlines could result in the
project being deemed approved pursuant to new section
560(i)(4)(C). The bill also prohibits a court from setting
aside such action on grounds that it was deemed approved
pursuant to new section 560(i)(4)(D)).
To address these problems with the bill, House Judiciary
Committee Ranking Member John Conyers, Jr. (D-MI) offered an
amendment during Committee consideration of the legislation
that would have ensured sufficient opportunity for public
participation in this process.\29\ His amendment would have
made certain that ``the ultimate decision made by these
agencies for these projects are well informed.''\30\ His
amendment, however, failed by a party-line vote of 10 to
15.\31\
---------------------------------------------------------------------------
\29\Tr. of Markup of H.R. 348, ``the Responsibly and Professionally
Invigorating Development Act of 2015,'' by the H. Comm. on the
Judiciary, 114th Cong. 58 (March 24, 2015), http://
judiciary.house.gov/_cache/files/26476c04-a8fb-48a1-96cc-914ea82f001c/
03.24.15-markup-transcript.pdf [hereinafter Markup Tr.]
\30\Id. at 67.
\31\Id. at 144.
---------------------------------------------------------------------------
III. THE RAPID ACT ESTABLISHES A REGULATORY APPROVAL SCHEME THAT WILL
CAUSE CONFUSION, DELAY, AND LITIGATION
NEPA applies to a vast panoply of Federal actions, such as
management plans; fishing, hunting, and grazing permits;
Defense Department Base Realignment and Closures activities;
and treaties. In contrast, the RAPID Act would apply to an
inexact subset of these actions, namely, construction projects,
which the bill itself does not define. In fact, the bill may
apply to only part of an undertaking. Consider the construction
of a new nuclear reactor facility. The RAPID Act would apply to
the building phase of the project, but not to the
decommissioning aspect of the projects or to the transportation
and storage aspects of spent fuel. Thus, agencies charged with
regulating the reactor would be forced to apply two distinct
sets of law to one undertaking.
In addition, the RAPID Act borrows a variety of concepts
from NEPA, but ignores others. It also incorporates modified
versions of still other NEPA provisions. For example, new
section 560(b) defines various terms, some of which are
identical to how they are defined in NEPA, but other
definitions in the bill differ from NEPA. Likewise, new section
560(g)(2)(B) requires consideration, under certain
circumstances, of whether alternatives to the project are
``economically feasible,'' a new and undefined term. As a
result, courts will be required to interpret new terminology
and requirements without the benefit of any precedent.
Yet another concern presented by the bill is that it has
internal inconsistences. For example, new section 560(d)(1)
states that the lead agency must prepare the EIS and EA, but
section 560(c) allows the project sponsor to prepare any
document for purposes of an environmental review, subject to
certain standards. In addition to creating needless confusion
in the permitting process through competing standards, this
provision risks blurring the distinct roles of lead agencies,
which are charged with protecting the public interest, and
project sponsors, which are responsible for maximizing
shareholder value.\32\
---------------------------------------------------------------------------
\32\See infra Part II; Letter from Bill Snape, Senior Counsel,
Center for Biological Diversity, et al. to Members of the H. Committee
on the Judiciary (Mar. 24, 2015) (on file with the H. Committee on the
Judiciary, Democratic Staff).
---------------------------------------------------------------------------
Further, the bill would import state law into the Federal
approval process. New section 560(d)(2) would direct the lead
agency to adopt a document prepared for a project under state
law if such law and the state's procedure are ``substantially
equivalent to NEPA.'' First, it is unclear why a state approval
process would even apply in a context that concerns a Federal
project context. NEPA ensures that the Federal Government is
regulating its own actions. Thus it does not make sense to
allow an entity that is bound by state law to bind the Federal
Government. Second, it is important to keep in mind that few
states have meaningful environmental laws. Third, the bill
requires the lead agency to adopt a state environmental review
even if it was poorly executed, providing the state's law and
review process is ``substantially'' equivalent to NEPA.
The bill also presents the potential for numerous
unintended consequences. For example, new section 560(d)(1)
prohibits a lead agency from issuing more than one EIS or EA,
ostensibly to streamline the review process. In practice,
however, the bill fails to take into account the reality that a
new EIS or EA may be clearly warranted in instances where: (1)
the original environmental document was found to be incorrect;
(2) a court directs the preparation of a new EIS or EA; or (3)
a settlement agreement resolves pending litigation by requiring
the issuance of a new EIS or EA. Another provision in the bill,
section 560(c) would force more participants to be formally
involved in the commenting process at the risk of being
precluded from offering comments as a nonparticipating agency.
This requirement could unnecessarily inflate the number of
participants and thereby slow down the review process.
Proponents of this legislation have argued that this
requirement to use state environmental documents is similar to
provisions in the Safe, Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for Users (SAFETEA-LU).\33\
There are, however, significant differences. Under SAFETEA-LU,
a pilot project was established for only five states\34\ to
undertake Federal NEPA standards that required the states to
waive their immunity from suit.\35\ Moreover, while more than
one-half of these states have laws somewhat similar to NEPA,
only a few of these have laws are substantially equivalent to
NEPA. In contrast, H.R. 348 would broadly apply to all
construction projects that are federally funded or that require
Federal approval.
---------------------------------------------------------------------------
\33\The Responsibly And Professionally Invigorating Development Act
of 2013: Hearing on H.R. 2641 Before the Subcomm. on Regulatory Reform,
Commercial and Antitrust Law of the H. Comm. on the Judiciary, 113th
Cong. (2013) (prepared testimony of William L. Kovacs, Senior Vice
President, U.S. Chamber of Commerce) (``[S]treamlining provisions in
SAFETEA-LU and the American Recovery and Reinvestment Act have yielded
positive and substantial results.''); Pub. L. No. 109-59 (2005), 119
Stat. 1144 (as amended).
\34\Pub. L. No. 109-59, Title VI, Sec. 6005, 119 Stat. 1868-72,
codified at 23 U.S.C. Sec. 327(b) (2006).
\35\Pub. L. No. 109-59, Title VI, Sec. 6005, codified at 23 U.S.C.
Sec. 327(c)(3) (2006).
---------------------------------------------------------------------------
Finally, the RAPID Act would generate confusion because it
includes these amendments in the Administrative Procedure Act,
which applies to all Federal agencies, even though the bill
only applies to agencies subject to environmental law
requirements, which do not implicate the APA.
IV. THE RAPID ACT FORECLOSES MEANINGFUL PUBLIC AND GOVERNMENTAL INPUT
AND IMPOSES RIGID DEADLINES
Several provisions in the RAPID Act will limit meaningful
input from other government agencies and restrict public
comment and judicial review. For example, the lead agency is
prohibited from considering comments supplied by an agency if
the agency did not become a participating agency pursuant to
new section 560(d)(4). There are many reasons why an agency may
decline to be a participating agency, but the bill cuts off
their ability to provide helpful input. Similarly, the bill
prevents a lead agency from considering any untimely comments,
even if they provide meaningful insight.
The RAPID Act ignores various opportunities under NEPA that
agencies have to develop a robust record with input from the
public, such as scoping, public meetings, and responding to
comments received from the public. For example, new section
560(g) requires the lead agency to have cooperating agencies
involved in determining the range of alternatives to be
considered for a project, but is silent about public input.
NEPA, on the other hand, requires agencies to go into the area
and hold public hearings as well as solicit public input. As a
result of these and other restrictions, the bill would enable
agencies to approve projects without sufficient feedback and
analysis.
With respect to the bill's deadlines for projects subject
to review under NEPA, the impact of these time frames in many
instances may be nominal because many environmental reviews do
not take much time. On the other hand, very complicated and
complex projects could require extended review periods that
would exceed the deadlines set forth in new section 560(i).
To highlight these concerns about the bill, Representative
Jerrold Nadler (D-NY) offered an amendment that would have
exempted from the bill any construction project for a nuclear
facility planned to be built in an area designated in an
earthquake fault zone.\36\ Unfortunately, his amendment was
rejected by a party-line vote of 10 to 18.\37\ Similarly,
Representative Sheila Jackson Lee (D-TX) offered an amendment
that would have exempted from the bill construction projects
that could be potential targets for terrorist attacks or
involve chemical facilities and other critical
infrastructure.\38\ This amendment failed along party lines by
a vote of 10 to 16.
---------------------------------------------------------------------------
\36\Markup Tr., supra note 29, at 13.
\37\Id. at 34-35.
\38\Id. at 35-36.
---------------------------------------------------------------------------
Subsection (k) further forecloses meaningful government
review by prohibiting the consideration of the social cost of
carbon (SCC) by a lead agency in any environmental review or
decisionmaking.\39\ A number of respected environmental
groups--including the League of Conservation Voters, Natural
Resources Defense Council, Earthjustice, and the Sierra Club--
oppose this provision, noting that the EPA and other Federal
agencies use SCC as a critical tool ``to estimate the economic
damages associated with specific projects and their related
carbon dioxide emissions,'' and that without it, the bill
undermines the public's ability to ``understand the true
benefits and costs of a project.''\40\ Moreover, these
environmental groups note that subsection (k) overlooks the
impact of climate change on the area surrounding a project,
which poses risks to ``critical infrastructure, tax payer
dollars, and local communities.''\41\ To address this concern,
Representative Scott Peters (D-CA) offered an amendment that
would strike subsection (k), thereby allowing lead agencies to
consider SCC while preparing environmental documents pursuant
to NEPA.\42\ Speaking in support of his amendment, Rep. Peters
noted that ``accounting for the social cost of carbon and
preparing for climate change is a smart business
practice.''\43\ Rep. Nadler added in support of the amendment
that ``to simply say categorically an entire environmental area
may not be looked at is putting our heads in the sand, if there
is any sand left,'' demonstrating the ``radical nature of this
legislation.''\44\ The Peters amendment failed along party
lines by a vote of 11 to 13.\45\
---------------------------------------------------------------------------
\39\Subsection (k) was adopted as a floor amendment offered by Rep.
David McKinley (R-WV) to the bill during its consideration in the 113th
Congress. In essence, the social cost of carbon estimates the social
and economic benefits of reducing carbon dioxide emissions.
\40\Letter from Bill Snape, Senior Counsel, Center for Biological
Diversity, et al. to Members of the H. Committee on the Judiciary 2
(Mar. 24, 2015) (on file with the H. Committee on the Judiciary,
Democratic Staff).
\41\Id.
\42\Markup Tr., supra note 29, at 68.
\43\Id. at 69.
\44\Id. at 76.
\45\Id. at 82.
---------------------------------------------------------------------------
V. THE RAPID ACT FUNDAMENTALLY SHORT CIRCUITS THE PROCESS FOR
CONSIDERING REASONABLE ALTERNATIVES
The requirement that agencies analyze and consider
reasonable alternatives that fulfill the purpose of and need
for the proposed action has long been considered the heart of
the NEPA process. Without a genuine consideration of
alternatives, the NEPA process loses its primary value in
influencing decision making and becomes a process that simply
analyzes the effects of a decision already made. It is
important to remember that under current law, alternatives can
be proposed by anyone, inside or outside the lead agency, and
that agencies are obligated to analyze the alternative of not
approving a proposed project just as robustly as the
alternative of approving the proposed project and reasonable
alternatives to it.\46\
---------------------------------------------------------------------------
\46\40 C.F.R. Sec. 1502.14 (2015).
---------------------------------------------------------------------------
The RAPID Act fundamentally alters this essential
requirement in at least two ways. First, subsection (g)(4)
permits a lead agency to develop the preferred alternative to a
higher level of detail than other alternatives if the agency
determines that such analysis will not prevent it from making
an impartial decision as to whether to accept another
alternative. Developing one alternative to a higher level of
detail than others inevitably raises the risk that the
preferred alternative will be more likely to be approved than
others, including the alternative of non-approval.
Second, the various provisions that mandate ``approval by
default'' if deadlines are not met, as well as the provision in
subsection (j)(1) requiring resolution of issues that ``could
result in denial of any approvals,'' all demonstrate a bias
towards project approval. While project approval may well be
the optimum result in many situations, Congress should not be
weighing in across the spectrum of almost a hundred Federal
agencies to dictate in advance that all proposed projects are
worthy of approval, no matter what their impacts might be to
the environment, to affected citizens, and to the public
fisc.\47\
---------------------------------------------------------------------------
\47\The RAPID Act tilts the balance of the environmental review and
permit approval processes in favor of project sponsors in other ways
too. For example, new section 560(i)(4)(C) would deem permits or
licenses approved if an agency does not meet certain deadlines under
the bill, rather than allowing agencies the time necessary to make an
informed decision on a permit or license application. Moreover, the
bill prohibits a court from setting aside such action pursuant to new
section 560(i)(4)(D)), denying affected parties the right to challenge
a ``deemed'' approval and placing the interests of private sector
actors above those of other stakeholders in the environmental review
and permit approval processes.
---------------------------------------------------------------------------
Representative Sheila Jackson Lee offered an amendment that
would have deleted the bill's problematic ``deemed approved''
provision.\48\ The amendment, however, failed by a party-line
vote of 9 to 16.\49\
---------------------------------------------------------------------------
\48\Markup Tr., supra note 29, at 36.
\49\Id. at 44.
---------------------------------------------------------------------------
SECTION-BY-SECTION EXPLANATION OF H.R. 348
H.R. 348 adds a new section 560 to the APA. The following
explanation details each subsection of new section 560.
Subsection (a) sets forth a congressional declaration of
purpose, stating this measure is intended to establish a
framework and procedures to streamline agency administration of
the regulatory review, environmental decision making, and
permitting process for projects undertaken, reviewed, or funded
by Federal agencies. The scope of this provision is extremely
extensive, as it is not limited to environmental actions by
agencies. In addition, subsection (a) states that the measure
is intended to ensure that agencies administer the regulatory
process in a manner that is efficient ``so that citizens are
not burdened with regulatory excuses and time delays.'' It is
unclear what would constitute a ``regulatory'' excuse.
Subsection (b) defines various terms, such as environmental
assessment (EA), environmental impact statement (EIS), and a
finding of no significant impact (FONSI).\50\ An environmental
document (ED), for example, means an EA or an EIS. The term
``project'' is defined here as ``major Federal actions that are
construction activities undertaken with Federal funds or that
require approval by a permit or regulatory decision issued by a
Federal agency.'' As a result, the bill effectively applies
only to construction projects that are either federally-funded
or that require Federal approval, notwithstanding the fact that
NEPA applies to construction projects as well as a broad range
of activities, including management plans; fishing, hunting,
and grazing permits; and Defense Department Base Realignment
and Closures activities.
---------------------------------------------------------------------------
\50\Id.
---------------------------------------------------------------------------
Subsection (c) defines ``project sponsor'' as including an
agency, private entity, or public-private entity that seeks
approval for a project or otherwise is responsible for
undertaking a project. A project is, in turn, defined as major
Federal actions that are construction activities undertaken
with Federal funds or that require approval by a permit or
regulatory decision by a Federal agency.
Upon request of the lead agency (LA), which is the Federal
agency responsible for preparing an EA or EIS, the project
sponsor is authorized to prepare any document for purposes of
an environmental review required in support of any project.
This applies if such agency: (1) furnishes oversight in the
preparation of such document; (2) independently evaluates it;
and (3) approves and adopts such document prior to taking or
making any approval based on such document.
Subsection (d)(1)(A) provides that only one EIS and one EA
may be prepared for a project and that only the LA may prepare
these documents. After the LA issues a record of decision, no
Federal agency responsible for making any approval for that
project may rely on a document other than the ED prepared by
the LA. It is unclear, however, what would happen if an EIS or
EA is later found to be defective and the LA, pursuant to a
settlement agreement, is required to issue a new EIS or EA.
Subsection (d)(1)(B) requires the LA to adopt, use or rely
on secondary and cumulative impact analyses included in any ED
prepared under NEPA for projects in the same geographic area
where the secondary and cumulative impact analyses provide
information and data that pertains to the NEPA decision for the
project under review.
Subsection (d)(2)(A) requires the LA, upon request of a
project sponsor, to adopt a document prepared for a project
under state law and procedures as the EIS or EA for the
project, if such law and procedures provide environmental
protection and opportunities for public involvement that are
substantially equivalent to NEPA. This provision could generate
litigation as to whether a state law or procedure is
``substantially equivalent'' to NEPA, although section (c)(1)
of the bill may address this concern.
Subsection(d)(2)(B) specifies that an ED adopted pursuant
to the above is deemed to satisfy the LA's obligation under
NEPA to prepare an EIS or EA.
Subsection (d)(2)(C) requires the LA--after preparation of
such ED, but before its adoption by the agency--to prepare and
publish a supplement to such ED if the agency determines that
there has been a significant change to the project that is
relevant to the environmental review of such project or there
has been significant changes in the information relevant to the
environmental review of the project.
Subsection (d)(2)(D) provides that if the agency prepares
and publishes a supplemental document (as described above), the
agency may solicit comments from agencies and the public on
such document for a period not to exceed 30 days from
publication of the supplement.
Subsection (d)(2)(E) requires a LA to issue its record of
decision or FONSI based on the document adopted pursuant to
subsection (d)(2)(A) and any supplements thereto. If the LA
determines that there is a reasonable likelihood that the
project will have similar environmental impacts as a similar
project in geographical proximity to the project, subsection
(d)(3) authorizes the LA to adopt the ED that resulted from the
environmental review of such similar project if it was subject
to environmental review or similar state procedures within the
5-year period immediately preceding the date on which the
agency made such determination. The LA may adopt such ED if it
is prepared under state law and procedures only after making a
favorable determination on such ED pursuant to subsection
(d)(2)(A). This provision does not require the state law or
procedure to be substantially similar to NEPA.
Subsection (e)(1) requires the LA to be responsible for
inviting and designating participating agencies in accordance
with subsection (e) and such invitation and notice of
desgination must be in writing.
Subsection (e)(2) provides that a Federal agency required
to adopt the ED of the LA for a project must be designated as a
participating agency and collaborate in the preparation of the
ED, unless the agency informs the LA in writing by a time
specified by the LA that such agency: (1) has no jurisdiction
or authority with respect to the project; (2) has no expertise
or information relevant to the project; and (3) does not intend
to submit comments on the project. It would appear that these
requirements should be in the alternative.
Subsection (e)(3) requires the LA to identify and invite as
early as possible in the environmental review for a project any
other agencies (other than those described in paragraph (2))
that may have an interest in the project, including governors
of affected states. Such invitation must set a 30-day deadline
for responses to be submitted and such period may be extended
by the LA for good cause shown. Any agency that fails to
respond prior to the deadline is deemed to have declined the
invitation.
Subsection (e)(4) pertains to an agency that declines a
designation or invitation by a LA to be a participating agency
(PA). It precludes such agency from submitting comments on or
taking any measures to oppose: (1) the project, (2) any
document prepared under NEPA for such project, and (3) any
permit, license, or approval related to such project. This
prohibition may preclude an agency from identifying useful
information to the LA. The subsection also requires the LA to
disregard and to not respond to any comment submitted by such
agency. This appears to be a rather shortsighted provision. On
the one hand, it could encourage various agencies, even those
with only a peripheral interest in the project, to become a PA
so their opportunity to comment is not foreclosed. On the other
hand, agencies may decline to participate on an unrelated
basis, e.g., lack of resources, but then be foreclosed from
offering helpful comments.
Subsection (e)(5) provides that designation as a PA does
not imply that such agency supports a proposed project or has
any jurisdiction over or special expertise with respect to the
evaluation of such project.
Subsection (e)(6) permits a LA to designate a PA as a
cooperating agency under 40 C.F.R. part 1500. Such designation
has no effect on the agency's designation as a PA. Only a PA
may be designated as a cooperating agency. It is not clear,
however, what the substantive differences are between a PA and
a cooperating agency.
Subsection (e)(7) requires each Federal agency to implement
its responsibilities under otherwise applicable law
concurrently and in conjunction with its NEPA review, and in
accordance with the Council of Environmental Quality's rules in
a way to ensure completion of the environmental review and
decisionmaking process in a timely, coordinated, and
environmentally responsible manner.
Subsection (e)(8) requires a PA to limit its comments on a
project to areas that are within such agency's authority and
expertise and it must identify in such comments its statutory
authority to make such comments. The LA cannot act upon,
respond to, or include in any document prepared under NEPA any
comment submitted by a PA that concerns matters outside of the
PA's authority and expertise.
Subsection (f)(1) requires the project sponsor to provide
the Federal agency responsible for undertaking a project with
notice of the initiation of the project by giving a description
of the proposed project, its general location, and a statement
of any Federal approvals anticipated to be necessary for the
project for the purpose of informing the Federal agency that
the environmental review should be initiated.
Subsection (f)(2) requires the agency that receives the
project initiation notice to promptly identify the LA for the
project. In turn, the LA must initiate the environmental review
within 45 days of receipt of such notice by inviting or
designating agencies to become a PA. If the LA determines that
no PA is required for the project, then it must take such other
action that is reasonable and necessary to initiate the
environmental review.
Subsection (g)(1) requires the LA, as early as practicable
during the environmental review, but no later than during
scoping for a project requiring the preparation of an EIS, to
give an opportunity for involvement by cooperating agencies in
determining the range of alternatives to be considered for a
project.
Subsection (g)(2) requires the LA to determine the range of
alternatives for consideration in any document that the LA is
responsible for preparing for the project, subject to certain
exceptions. No Federal agency may be required to evaluate any
alternative that was identified, but not carried forward for
detailed evaluation in an environmental document or evaluated
and not selected in any environmental document prepared under
NEPA for the same project.
When a project sponsor, which is not a Federal agency,
undertakes a project, cooperating agencies can only be required
to evaluate alternatives that the project sponsor could
feasibly undertake, including alternatives that can actually be
undertaken by the project sponsor, and are technically and
economically feasible.
Subsection (g)(3)(A) requires the LA to determine, in
collaboration with cooperating agencies at appropriate times
during the environmental review, the methodologies to be used
and the level of detail required in the analysis of each
alternative for a project. The LA must include in the
environmental document a description of the methodologies used
and how they were selected.
Pursuant to subsection (g)(3)(B), if the LA determines that
an alternative does not meet the purpose and need for a
project, then that alternative does not have to be evaluated in
detail in an environmental document.
Subsection (g)(4) permits the LA, in its discretion, to
develop the preferred alternative for a project to a higher
level of detail than other alternatives to facilitate the
development of mitigation measures or concurrent compliance
with other applicable laws if such additional detail will not
prevent the LA from making an impartial decision as to whether
to accept another alternative which is being considered in the
environmental review.
Subsection (g)(5) requires the evaluation of each
alternative in an EIS or EA to identify the potential effects
of such alternative on employment, including potential short-
term and long-term impacts.
Subsection (h)(1)(A) requires the LA to establish and
implement a plan for coordinating public and agency
participation or comment for the environmental review for a
project or category of projects to facilitate the expeditious
resolution of such review.
Subsection (h)(1)(B) requires the LA, after consultation
with each PA and project sponsor (if applicable), to establish
a schedule for completion of the environmental review, which
must include deadlines for decisions under any other Federal
laws, including the issuance or denial of a permit or license
relating to the project that is the subject of such schedule.
The provision itemizes a series of factors that must be
considered in establishing the schedule. A PA must comply with
such time periods. The LA must disregard, not respond to, or
include in any document prepared under NEPA any comment or
information submitted or any finding made by a PA that is
outside of the time periods established in the schedule. If a
PA fails to object in writing to a LA's decision, finding, or
request for concurrence within the time period established by
law or by the LA, the agency shall be deemed to have concurred
in the decision, finding, or request.
Subsection (h)(1)(C) requires the schedule as described
above to be consistent with any other relevant time periods
established under Federal law.
Subsection (h)(1)(D) permits the LA to lengthen an
established schedule for good cause. It may shorten it only
with the concurrence of the cooperating agencies.
Subsection (h)(1)(E) requires a copy of the schedule and
any modification to be provided to all PAs and the project
sponsor within 15 days of completion or modification and made
available to the public. This provision does not specify who is
to make the schedule available and how it is to be made
available to the public.
Subsection (h)(1)(F) states that the LA has the authority
and responsibility to take such actions as are necessary and
proper to facilitate the expeditious resolution of the
environmental review for the project.
Subsection (i)(1) sets forth various deadlines applicable
to any project subject to review under NEPA and any decision
under Federal law relating to such project (including the
issuance or denial of a permit or license or any required
finding. For a project requiring an EIA, the LA has 2 years to
issue a record of decision from the earlier of the date on
which the LA receives the project initiation request or a
Notice of Intent to Prepare an EIS is published in the Federal
Register. Where the LA has prepared an ES and determined that
an EIS is required, the LA must issue a record of decision
within 2 years from the date of publication of the Notice of
Intent to Prepare an Environmental Impact Statement in the
Federal Register.
For a project requiring an EA, the LA must issue a FONSI or
publish a Notice of Intent to Prepare an EIS in the Federal
Register within 1 year after the earlier of the date the LA
receives the project initiation request, makes a decision to
prepare an EA, or sends out PA invitations.
Subsection (i)(2) these deadlines to be extended only if
tje LA, project sponsor and PA agree or the LA determines that
such extension is needed for good cause. The extension for a
project requiring an EIS cannot be more than 1 year. The limit
for an EA is 180 days.
Subsection (i)(3) pertains to environmental review
comments. With respect to comments by agencies and the public
on a draft EIS, the LA must establish a comment period not
longer than 60 days after publication in the Federal Register
of notice of the date of public availability of such EIS,
unless a different deadline is established by agreement of the
LA, project sponsor, and PA, or the deadline is extended by the
LA for good cause. For all other comment periods for agency or
public comments in the environmental review process, the LA
must establish a period that does not exceed 30 days from the
availability of the materials on which comment is requested,
unless a different deadline is established by agreement of the
LA, project sponsor, and PA, or if the deadline is extended by
the LA for good cause.
Subsection (i)(4) overrides all other laws to impose
certain deadlines in any case in which a decision under any
other Federal law relating to the undertaking of a project
reviewed under NEPA. With respect to instances where a Federal
agency must approve or make a determination or finding
regarding a project prior to the record of decision or FONSI,
such approval, determination, or finding must be made within 90
days after the LA publishes a notice of the availability of the
final EIS or issuance of other final environmental documents,
or not later than such other date that is otherwise required by
law, whichever occurs first. This provision may impose an
unreasonable time frame for certain determinations.
With respect to other decisions, a Federal agency must make
any required approval, determination, or finding within 180
days after the LA issues the record of decision or FOSNI,
unless a different deadline is established by agreement of the
Federal agency, LA, and project sponsor, or the Federal agency
extends the deadline for good cause. This gives the project
sponsor substanital control over the approval process. The
extension cannot be more than 1 year after the LA issues the
record of decision or FOSNI.
If the Federal agency fails to approve or disapprove the
project, or make a required finding or determination with the
applicable deadlines, the project shall be deemed approved by
such agency and the agency must issue any required permit or
make any required finding or determination authorizing the
project to proceed within 30 days of such deadline. This
provision would be problematic for very complex projects that
require additional time for review.
Subsection (j)(1) requires the LA and PA to work
cooperatively to identify and resolve issues that could delay
completion of the environmental review or could result in
denial of any approvals required for the project under
applicable law. What happens if the PA does not work
cooperatively?
Subsection (j)(2) requires the LA to make information
available to a PA as early as practicable in the environmental
review regarding the environmental, historic, and socioeconomic
resources located within the project area and the general
locations of alternatives under consideration. Such information
may be based on existing data sources, including geographic
information systems mapping.
Subsection (j)(3) requires the PA, based on information
received from the LA, to identify as early as practicable any
issue of concern regarding the project's potential
environmental, historic, or socioeconomic impacts. How does
``impacts'' compare with ``resources,'' as used in subsection
(j)(2)? What if the PAs concerns are not based on information
provided by the LA? The provision specifies that issues of
concern include any issues that could substantially delay or
prevent an agency from granting a permit or other approval
needed for the project.
Subsection (j)(4) requires the LA, upon request of a
project sponsor, to promptly convene a meeting with the
relevant PAs and the project sponsor to resolve issues that
could delay completion of the environmental review or could
result in denial of any approvals required for such project. If
a resolution cannot be achieved within 30 days following such
meeting and a determination by the LA that all information
necessary to resolve the issue has been obtained, the LA must
notify all PAs, the project sponsor, and the CEQ for further
proceedings in accordance with section 204 of NEPA and shall
publish such notification in the Federal Register.
Subsection (k) prohibits the consideration by a LA in any
environmental review or decision making of the social cost of
carbon.
Subsection (l) requires each Federal agency to report
annually to Congress on the following: (1) the projects for
which the agency initiated the preparation of an EIS or EA; (2)
projects for which the agency issued a record of decision or
FOSNI and the length of time it took for the agency to complete
the environmental review for each such project; (3) filing of
any lawsuits against the agency seeking judicial review of a
permit, license, or approval issued by the agency for an action
subject to NEPA, including the date the complaint was filed,
the court in which the complaint was filed, and a summary of
the claims for which judicial review was sought; and (4) the
resolution of such lawsuits.
Subsection (m)(1) overrides all other laws to bar a claim
for judicial review of a permit, license, or approval issued by
a Federal agency for an action subject to NEPA, unless certain
criteria apply. Judicial review is available for a claim
pertaining to a project for which an environmental review was
conducted, if such claim is filed by a party that submitted a
comment during the environmental review on the issue on which
the party seeks judicial review and such comment was
sufficiently detailed to put the LA on notice of the issue. In
addition, the claim must be filed within 180 days after
publication of a Federal Register notice announcing that the
permit, license, or approval is final pursuant to the law under
which the agency action is taken, unless a shorter time is
specified in the Federal law pursuant to which judicial review
is allowed.
Subsection (m)(2) provides that the preparation of a
supplemental EIS (when required) is deemed a separate final
agency action and the deadline for filing a claim for judicial
review of such action is 180 days after publication of a
Federal Register notice announcing the record of decision for
such action. Any claim challenging agency action on the basis
of information in a supplemental EIS is limited to challenges
on the basis of such information.
Subsection (m)(3) specifies that nothing in subsection (l)
may be construed to create a right to judicial review or limit
the filing of a claim that a person has violated the terms of a
permit, license, or approval.
Subsection (n) provides that the authorities under
subchapter IIA may be exercised for an individual project or
category of projects.
Subsection (o) specifies that the amendments made by this
legislation apply prospectively to environmental reviews and
environmental decision-making processes initiated after the
date of enactment, unless such environmental reviews or
environmental decision making processes have already been
initiated, in which case the bill applies retroactively to
those projects.
Subsection (p) specifies that the amendments apply to all
projects for which a Federal agency is required to undertake an
environmental review or make a decision under an environmental
law for a project for which a Federal agency is undertaking an
environmental review or making a decision under an
environmental law for a project for which a Federal agency is
undertaking an environmental review.
Section (c)(1) of the bill requires the CEQ to amend its
regulations to implement this Act within 180 days from date of
enactment. Also, the CEQ must designate states with laws and
procedures that satisfy 5 U.S.C. section 560(d)(2)(A), as added
by this Act. This time frame may not be feasible.
Section (c)(2) of the bill requires Federal agencies with
regulations implementing NEPA to amend such regulations within
120 days from when the CEQ amends its regulations.
CONCLUSION
H.R. 348 is based on the unproven assertion that there are
unwarranted and extensive delays in the environmental review
and permit approval process required by NEPA. To the contrary,
the facts prove that NEPA provides a very workable process.
Rather than streamline this process, the bill will create
confusion, increased litigation, and delay. It will create a
parallel environmental review process for an ill-defined subset
of Federal activities; foreclose potentially meaningful input
into the environmental review process from agencies and the
public; and institutionalize a bias in favor of approving an
agency's preferred alternative.
For the foregoing reasons, we strongly urge our colleagues
to oppose H.R. 348.
Mr. Conyers, Jr.
Mr. Nadler.
Ms. Jackson Lee.
Mr. Cohen.
Mr. Johnson, Jr.
Ms. Chu.
Mr. Deutch.
Mr. Gutierrez.
Ms. Bass.
Mr. Richmond.
Ms. DelBene.
Mr. Cicilline.
[all]
