[House Report 112-596]
[From the U.S. Government Publishing Office]
112th Congress Rept. 112-596
HOUSE OF REPRESENTATIVES
2d Session Part 1
======================================================================
RAPID ACT
_______
July 17, 2012.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Smith of Texas, from the Committee on the Judiciary, submitted the
following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 4377]
[Including cost estimate of the Congressional Budget Office]
The Committee on on the Judiciary, to whom was referred the
bill (H.R. 4377) 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
with an amendment and recommends that the bill as amended do
pass.
CONTENTS
Page
The Amendment.................................................... 2
Purpose and Summary.............................................. 9
Background and Need for the Legislation.......................... 9
Hearings......................................................... 19
Committee Consideration.......................................... 20
Committee Votes.................................................. 20
Committee Oversight Findings..................................... 26
New Budget Authority and Tax Expenditures........................ 26
Congressional Budget Office Cost Estimate........................ 26
Performance Goals and Objectives................................. 29
Advisory on Earmarks............................................. 29
Section-by-Section Analysis...................................... 30
Changes in Existing Law Made by the Bill, as Reported............ 33
Dissenting Views................................................. 44
The Amendment
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Responsibly And Professionally
Invigorating Development Act of 2012'' or as the ``RAPID Act''.
SEC. 2. COORDINATION OF AGENCY ADMINISTRATIVE OPERATIONS FOR EFFICIENT
DECISIONMAKING.
(a) In General.--Part I of chapter 5 of title 5, United States Code,
is amended by inserting after subchapter II the following:
``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 appoval 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) 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.
``(l) 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.
``(m) Categories of Projects.--The authorities granted under this
subchapter may be exercised for an individual project or a category of
projects.
``(n) 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.
``(o) Applicability.--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.''.
(b) Technical Amendment.--The table of sections for chapter 5 of
title 5, United States Code, is amended by inserting after the item
relating to subchapter II the following:
``SUBCHAPTER IIA--INTERAGENCY COORDINATION REGARDING PERMITTING
``560. Coordination of agency administrative operations for efficient
decisionmaking.''.
(c) Regulations.--
(1) Council on environmental quality.--Not later than 180
days after the date of enactment of this Act, the Council on
Environmental Quality shall amend the regulations contained in
part 1500 of title 40, Code of Federal Regulations, to
implement the provisions of this Act and the amendments made by
this Act, and shall by rule designate States with laws and
procedures that satisfy the criteria under section 560(d)(2)(A)
of title 5, United States Code.
(2) Federal agencies.--Not later than 120 days after the date
that the Council on Environmental Quality amends the
regulations contained in part 1500 of title 40, Code of Federal
Regulations, to implement the provisions of this Act and the
amendments made by this Act, each Federal agency with
regulations implementing the National Environmental Policy Act
of 1969 (42 U.S.C. 4321 et seq.) shall amend such regulations
to implement the provisions of this subchapter.
Purpose and Summary
H.R. 4377, the ``Responsibly And Professionally
Invigorating Development Act of 2012'' (hereinafter, ``the
RAPID Act'' or ``the Bill'') is bipartisan legislation that
will encourage employers to create jobs by establishing a more
transparent and efficient Federal permitting process through
the Administrative Procedure Act (``APA''). The RAPID Act will
streamline the Federal environmental review process established
by the National Environmental Policy Act of 1969 (``NEPA'') by
drawing upon: definitions and established best practices under
current NEPA regulations and guidance; recommendations from the
President's Council on Jobs and Competitiveness; Section 6002
of the ``Safe, Accountable, Flexible, Efficient Transportation
Equity Act: A Legacy for Users'' (``SAFETEA-LU''), bipartisan
legislation enacted in 2005 that easily passed the House; and,
NEPA guidance and permit streamlining Presidential memoranda
and Executive Orders recently issued by the Administration.
Background and Need for the Legislation
``The problem at hand is the increasingly undue length of
time it takes to conduct a 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 2012, 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
thirteen 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, however, found that the average length of time to
prepare an 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, 112th Cong. (Apr.
25, 2012), (hereinafter ``RAPID Act Hearing'') 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).
---------------------------------------------------------------------------
I. 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''). In brief, 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 are significant environmental
effects. 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.
---------------------------------------------------------------------------
``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, 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 affect 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.
---------------------------------------------------------------------------
II. REGULATIONS OUTLINING THE NEPA PROCESS
NEPA created the Council on Environmental Quality (``CEQ'')
within the Executive Office of the President.\16\ The CEQ
promulgates regulations implementing NEPA.
---------------------------------------------------------------------------
\16\See 28 U.S.C. Sec. 4342.
---------------------------------------------------------------------------
A. Environmental Impact Statements
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. Environmental Assessments and Categorical Exclusions
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\ Generally, an EA
``[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 or 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).
---------------------------------------------------------------------------
III. PROJECT 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, note 1 supra, at 47-48 (Testimony of William
Kovacs).
\35\Available at http://www.law.georgetown.edu/gelpi/
research_archive/nepa/NEPATask
Force_FinalRecommendations.pdf (last accessed June 25, 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
25, 2012).
\37\RAPID Act Hearing, 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--was brought to resolution only by an Act of Congress
forcing the Administration to decide the issue by February 21,
2012.\38\ On January 18, the Administration announced the
Keystone Pipeline XL permit would not be approved by February
21. On March 8, the Senate narrowly defeated an amendment to a
transportation bill to override the President's decision and
approve the pipeline.\39\ On March 22, 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 recently reapplied to build the full pipeline,
which would run from Alberta to the Gulf of Mexico,\41\ and the
U.S. Department of State has announced that it will begin
preparing a new supplemental environmental impact
statement.\42\ TransCanada first applied for a permit to build
the pipeline in September 2008.\43\
---------------------------------------------------------------------------
\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 25,
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 25, 2012).
\42\See http://www.keystonepipeline-xl.state.gov/(last accessed
June 25, 2012).
\43\See http://energycommerce.house.gov/keystonexl.shtml (last
accessed June 25, 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.
---------------------------------------------------------------------------
A. Examples of and Recommendations for NEPA Streamlining
i. SAFETEA-LU
``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 of SAFETEA-LU, 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\ ``The RAPID Act is very wisely modeled
after'' Section 6002.\51\
---------------------------------------------------------------------------
\48\RAPID Act Hearing, 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).
\51\RAPID Act Hearing, note 1 supra, at 55 (Testimony of William
Kovacs).
---------------------------------------------------------------------------
ii. 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.\52\ 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.''\53\ 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.''\54\ The MOU was necessary,
inter alia, 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.''\55\
---------------------------------------------------------------------------
\52\109 P.L. 58, Sec. 368.
\53\Id. Sec. 369.
\54\Id. Sec. 372.
\55\Ibid.
---------------------------------------------------------------------------
iii. NEPA Task Force
In July 2006 the House Resources Committee's NEPA Task
Force released its Final Report,\56\ 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.\57\ 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.''\58\ 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.\59\ The Final Report recommended that agencies
should have to consider only ``reasonable'' alternatives,
defined as ``those that are economically and technically
feasible.''\60\ 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.''\61\
---------------------------------------------------------------------------
\56\See note 35 supra.
\57\Id., Recommendation 1.3.
\58\Id., Recommendation 3.1.
\59\Id., Recommendation 4.1.
\60\Id., Recommendation 5.1.
\61\Id., Recommendation 6.2.
---------------------------------------------------------------------------
iv. Jobs Council
Recently, the President's Jobs Council recommended permit
streamlining 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.''\62\ 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:
---------------------------------------------------------------------------
\62\``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.\63\
---------------------------------------------------------------------------
\63\``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 25, 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.''\64\ The Jobs Council's year-end report also
mentioned the importance of permit streamlining.\65\
---------------------------------------------------------------------------
\64\Available at http://files.jobs-council.com/jobscouncil/files/
2011/10/JobsCouncil_Interim
Report_Oct11.pdf, p. 27 (last accessed June 25, 2012).
\65\Available at http://files.jobs-council.com/files/2012/01/
JobsCouncil_2011YearEndReport
Web.pdf, pp. 42-44 (last accessed June 25, 2012).
---------------------------------------------------------------------------
v. The 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.''\66\ 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.''\67\ On October 11, the President announced 14 projects
for expedited environmental review and permitting.\68\ These
projects are tracked online by the Federal Infrastructure
Projects Dashboard (``Dashboard''), which was created pursuant
to the August 31 Presidential Memorandum.\69\ On March 22,
2012, the President 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.''\70\ President Obama emphasized that the Federal
Plan should address the following goals:
---------------------------------------------------------------------------
\66\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 25, 2012).
\67\Id.
\68\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
25, 2012).
\69\See http://permits.performance.gov/(last accessed June 25,
2012).
\70\Exec. Order No. 13604, Improving Performance of Federal
Permitting and Review of Infrastructure Projects, 77 Fed. Reg. 18887
(Mar. 28, 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 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 since has been released\71\ and contains
numerous suggestions that are consistent with both the goals
identified in the President's Executive Order and suggestions
made at the Subcommittee's April 25 hearing.
---------------------------------------------------------------------------
\71\See http://permits.performance.gov/sites/default/files/
Federal_Infrastructure_Plan.pdf (last accessed June 25, 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 the Bill, 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.''\72\ Environmental review already has been
completed, permits have been issued, and construction has begun
on several of these projects.\73\
---------------------------------------------------------------------------
\72\RAPID Act Hearing, note 1 supra, at 57 (Testimony of William
Kovacs).
\73\See http://permits.performance.gov/news-and-updates (last
accessed June 25, 2012).
---------------------------------------------------------------------------
IV. LEGISLATIVE HISTORY OF H.R. 4377
On April 25, 2012, Messrs. Kovacs, Bauman and Margro
testified before the Subcommittee on Courts, Commercial and
Administrative Law in support of the RAPID Act; Ms. Bear
testified against it.
In summary, Mr. Kovacs, who is Senior Vice President for
Environment, Technology & Regulatory Affairs at the U.S.
Chamber of Commerce, discussed the findings of the March 2011
study Progress Denied: A Study on the Potential Economic Impact
of Permitting Challenges Facing Proposed Energy Projects;
described how the NEPA process has become an impediment to job
creation and economic growth and how the Bill would correct
this; and, discussed how permit streamlining has enjoyed broad
support, at least in principle, from members of both parties
and from the Administration.\74\ Drawing on his experience as
an environmental attorney, Mr. Bauman described how today's
NEPA process does not resemble what was originally envisioned,
and testified that the RAPID Act ``would restore to NEPA a more
rational and manageable process without undercutting the law's
environmental review elements.''\75\
---------------------------------------------------------------------------
\74\Id. at 42-60.
\75\Id. at 61.
---------------------------------------------------------------------------
Mr. Margro, an engineer, discussed how the RAPID Act would
improve the Federal environmental review and permitting process
in light of his personal experience with attempting to build a
16-mile toll road in Orange County, Calif. This project would
create over 17,000 jobs, would generate $3 billion in economic
output and create almost $160 million in State and local tax
revenues, and requires no Federal funding--but after 15 years
under review the road still is not built.\76\ Ten years into
the environmental review, ``[w]hen the [Transportation Corridor
Agencies] applied for the consistency certification under the
Coastal Zone Management Act, project opponents objected to the
project and produced a study disputing the previous 10 years of
analysis by the collaborative. At this point, both the EPA and
Army Corps questioned the preferred alternative that they had
previously selected and asserted the need for additional
environmental studies and reopened the debate concerning other
alternatives.''\77\ ``If H.R. 4377 was the law when we were
planning the 241 Toll Road, the road likely would be built and
the public would have the benefit of a critical alternative to
the traffic-choked Interstate-5 in South Orange County.''\78\
---------------------------------------------------------------------------
\76\Id. at 67.
\77\Id. at 68.
\78\Id. at 197.
---------------------------------------------------------------------------
Ms. Bear, who served for 25 years as General Counsel to the
CEQ, testified that the environmental review process itself is
much less of an impediment to permitting and construction than
lack of adequate staffing and resources at Federal
agencies.\79\ Ms. Bear also voiced specific concerns with the
drafting of the RAPID Act, many of which were addressed in the
Manager's Amendment adopted by voice vote of the Full Committee
on June 6, 2012.\80\
---------------------------------------------------------------------------
\79\Id. at 80-81. But see id. at 199 (Testimony of Thomas Margro)
(``My experience with TCA and working for transit agencies in the past
is that because there are no limitations on the NEPA process, resource
agencies feel unconstrained in raising issues or requesting studies on
a piecemeal basis often without considering whether the issues were
already addressed or whether the agency requesting the information has
any rational basis for doing so.'').
\80\See, e.g., id. at 82-83 (objecting to requiring lead agencies
to accept environmental documents from project sponsors and to allowing
lead agencies to accept contributions of funds from project sponsors,
per Subsection (c) to the new Section 560, 5 U.S.C.); id. at 83-84
(stating that Subsection (d)(1)(A) could be interpreted not to allow
supplemental and court-ordered environmental documents); id. at 84-85
(objecting to requiring agencies to accept certain state environmental
documents, per Subsection (d)(2)); id. at 85 (criticizing the as too
short a 30-day comment period on supplements to state environmental
documents under Subsection (d)(2)(D)); ibid. (regarding Subsection
(e)(3): ``Unlike the CEQ regulations, there are no references to county
and tribal governments that `may have an interest in the project.''');
id. at 86 (criticizing as unclear the language of Subsection (e)(4),
prohibiting an agency that declines an invitation to become a
participating agency from ``taking any measures to oppose the
project''); id. at 86-87 (regarding Subsection (g)(4): ``Alternatives
must reflect the agency's purpose and need. . . .''); id. at 89
(criticizing the wording of Subsection (i)(4)). These concerns are
addressed in the corresponding sections of the Bill, as ordered
reported.
---------------------------------------------------------------------------
Hearings
The Subcommittee on Courts, Commercial and Administrative
Law held a hearing on H.R. 4377, on Wednesday, April 25, 2012.
The Subcommittee received two letters in opposition to the
RAPID Act, from: Nancy Sutley, Chair of CEQ; and,
representatives of 26 organizations (e.g., Earthjustice, Center
for Biological Diversity, Natural Resources Defense Council,
etc.).
Committee Consideration
On June 6, 2012, the Committee met in open session and
ordered the bill H.R. 4377 favorably reported with amendment,
by a rollcall vote of 14 to 8, 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. 4377.
1. Amendment #3 to the Ross Amendment in the Nature of a
Substitute (``Ross Amendment''), offered by Mr. Johnson, to
exempt from the Bill any regulation that the CEQ determines has
a detrimental impact on human health. Not agreed to by a vote
of 10 to 13.
ROLLCALL NO. 1
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Smith, Chairman.......................... X
Mr. Sensenbrenner, Jr........................ X
Mr. Coble....................................
Mr. Gallegly.................................
Mr. Goodlatte................................
Mr. Lungren..................................
Mr. Chabot...................................
Mr. Issa.....................................
Mr. Pence....................................
Mr. Forbes................................... X
Mr. King..................................... X
Mr. Franks................................... X
Mr. Gohmert..................................
Mr. Jordan...................................
Mr. Poe......................................
Mr. Chaffetz................................. X
Mr. Griffin.................................. X
Mr. Marino................................... X
Mr. Gowdy.................................... X
Mr. Ross..................................... X
Ms. Adams.................................... X
Mr. Quayle................................... X
Mr. Amodei................................... X
Mr. Conyers, Jr., Ranking Member............. X
Mr. Berman...................................
Mr. Nadler...................................
Mr. Scott.................................... X
Mr. Watt..................................... X
Ms. Lofgren..................................
Ms. Jackson Lee.............................. X
Ms. Waters...................................
Mr. Cohen.................................... X
Mr. Johnson, Jr.............................. X
Mr. Pierluisi................................ X
Mr. Quigley..................................
Ms. Chu......................................
Mr. Deutch................................... X
Ms. Sanchez.................................. X
Mr. Polis.................................... X
--------------------------
Total.................................... 10 13
------------------------------------------------------------------------
2. Amendment #2 to the Ross Amendment, offered by Mr.
Conyers, to add a rule of construction clarifying that nothing
in the Bill shall have the effect of changing or limiting any
law or regulation that requires or provides for public comment
or public participation in an agency decision making process.
Not agreed to by a vote of 12 to 13.
ROLLCALL NO. 2
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Smith, Chairman.......................... X
Mr. Sensenbrenner, Jr........................ X
Mr. Coble....................................
Mr. Gallegly.................................
Mr. Goodlatte................................
Mr. Lungren..................................
Mr. Chabot...................................
Mr. Issa.....................................
Mr. Pence....................................
Mr. Forbes................................... X
Mr. King..................................... X
Mr. Franks................................... X
Mr. Gohmert..................................
Mr. Jordan...................................
Mr. Poe......................................
Mr. Chaffetz................................. X
Mr. Griffin.................................. X
Mr. Marino................................... X
Mr. Gowdy.................................... X
Mr. Ross..................................... X
Ms. Adams.................................... X
Mr. Quayle................................... X
Mr. Amodei................................... X
Mr. Conyers, Jr., Ranking Member............. X
Mr. Berman...................................
Mr. Nadler................................... X
Mr. Scott.................................... X
Mr. Watt..................................... X
Ms. Lofgren..................................
Ms. Jackson Lee.............................. X
Ms. Waters...................................
Mr. Cohen.................................... X
Mr. Johnson, Jr.............................. X
Mr. Pierluisi................................ X
Mr. Quigley.................................. X
Ms. Chu......................................
Mr. Deutch................................... X
Ms. Sanchez.................................. X
Mr. Polis.................................... X
--------------------------
Total.................................... 12 13
------------------------------------------------------------------------
3. Amendment #4 to the Ross Amendment, offered by Mr.
Nadler, to exempt from the Bill any project that pertains to
the safety of a nuclear reactor or that pertains to nuclear
safety. Not agreed to by a vote of 12 to 13.
ROLLCALL NO. 3
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Smith, Chairman.......................... X
Mr. Sensenbrenner, Jr........................ X
Mr. Coble....................................
Mr. Gallegly.................................
Mr. Goodlatte................................
Mr. Lungren..................................
Mr. Chabot...................................
Mr. Issa.....................................
Mr. Pence....................................
Mr. Forbes................................... X
Mr. King..................................... X
Mr. Franks................................... X
Mr. Gohmert..................................
Mr. Jordan...................................
Mr. Poe......................................
Mr. Chaffetz................................. X
Mr. Griffin.................................. X
Mr. Marino................................... X
Mr. Gowdy.................................... X
Mr. Ross..................................... X
Ms. Adams.................................... X
Mr. Quayle................................... X
Mr. Amodei................................... X
Mr. Conyers, Jr., Ranking Member............. X
Mr. Berman...................................
Mr. Nadler................................... X
Mr. Scott.................................... X
Mr. Watt..................................... X
Ms. Lofgren..................................
Ms. Jackson Lee.............................. X
Ms. Waters...................................
Mr. Cohen.................................... X
Mr. Johnson, Jr.............................. X
Mr. Pierluisi................................ X
Mr. Quigley.................................. X
Ms. Chu......................................
Mr. Deutch................................... X
Ms. Sanchez.................................. X
Mr. Polis.................................... X
--------------------------
Total.................................... 12 13
------------------------------------------------------------------------
4. Amendment #5 to the Ross Amendment, offered by Ms.
Jackson Lee, to order a GAO study on the amount of time
required for projects that required approval by a permit or
regulatory decision by a Federal agency to complete
environmental review under NEPA during the four calendar years
prior to the date of enactment. Not agreed to by a vote of 11
to 12.
ROLLCALL NO. 4
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Smith, Chairman.......................... X
Mr. Sensenbrenner, Jr........................
Mr. Coble....................................
Mr. Gallegly.................................
Mr. Goodlatte................................
Mr. Lungren..................................
Mr. Chabot...................................
Mr. Issa.....................................
Mr. Pence....................................
Mr. Forbes................................... X
Mr. King..................................... X
Mr. Franks................................... X
Mr. Gohmert..................................
Mr. Jordan...................................
Mr. Poe......................................
Mr. Chaffetz................................. X
Mr. Griffin.................................. X
Mr. Marino................................... X
Mr. Gowdy.................................... X
Mr. Ross..................................... X
Ms. Adams.................................... X
Mr. Quayle................................... X
Mr. Amodei................................... X
Mr. Conyers, Jr., Ranking Member............. X
Mr. Berman...................................
Mr. Nadler...................................
Mr. Scott.................................... X
Mr. Watt..................................... X
Ms. Lofgren..................................
Ms. Jackson Lee.............................. X
Ms. Waters...................................
Mr. Cohen.................................... X
Mr. Johnson, Jr.............................. X
Mr. Pierluisi................................ X
Mr. Quigley.................................. X
Ms. Chu......................................
Mr. Deutch................................... X
Ms. Sanchez.................................. X
Mr. Polis.................................... X
--------------------------
Total.................................... 11 12
------------------------------------------------------------------------
5. Amendment #6 to the Ross Amendment, offered by Mr.
Cohen, to strike the creation of a new subchapter under the
Administrative Procedure Act and redraft the Bill as
freestanding legislative language. Not agreed to by a vote of 9
to 10.
ROLLCALL NO. 5
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Smith, Chairman.......................... X
Mr. Sensenbrenner, Jr........................
Mr. Coble....................................
Mr. Gallegly................................. X
Mr. Goodlatte................................
Mr. Lungren..................................
Mr. Chabot...................................
Mr. Issa.....................................
Mr. Pence....................................
Mr. Forbes................................... X
Mr. King..................................... X
Mr. Franks................................... X
Mr. Gohmert..................................
Mr. Jordan...................................
Mr. Poe......................................
Mr. Chaffetz.................................
Mr. Griffin..................................
Mr. Marino................................... X
Mr. Gowdy.................................... X
Mr. Ross..................................... X
Ms. Adams.................................... X
Mr. Quayle................................... X
Mr. Amodei...................................
Mr. Conyers, Jr., Ranking Member............. X
Mr. Berman...................................
Mr. Nadler...................................
Mr. Scott.................................... X
Mr. Watt..................................... X
Ms. Lofgren..................................
Ms. Jackson Lee.............................. X
Ms. Waters...................................
Mr. Cohen.................................... X
Mr. Johnson, Jr.............................. X
Mr. Pierluisi................................ X
Mr. Quigley.................................. X
Ms. Chu......................................
Mr. Deutch...................................
Ms. Sanchez..................................
Mr. Polis.................................... X
--------------------------
Total.................................... 9 10
------------------------------------------------------------------------
6. Motion to report H.R. 4377, as amended, favorably to the
House. Agreed to by a vote of 14 to 8.
ROLLCALL NO. 6
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
Mr. Smith, Chairman.......................... X
Mr. Sensenbrenner, Jr........................
Mr. Coble....................................
Mr. Gallegly................................. X
Mr. Goodlatte................................
Mr. Lungren.................................. X
Mr. Chabot................................... X
Mr. Issa.....................................
Mr. Pence....................................
Mr. Forbes................................... X
Mr. King..................................... X
Mr. Franks................................... X
Mr. Gohmert..................................
Mr. Jordan...................................
Mr. Poe......................................
Mr. Chaffetz................................. X
Mr. Griffin.................................. X
Mr. Marino................................... X
Mr. Gowdy.................................... X
Mr. Ross..................................... X
Ms. Adams.................................... X
Mr. Quayle................................... X
Mr. Amodei...................................
Mr. Conyers, Jr., Ranking Member............. X
Mr. Berman...................................
Mr. Nadler...................................
Mr. Scott.................................... X
Mr. Watt..................................... X
Ms. Lofgren..................................
Ms. Jackson Lee.............................. X
Ms. Waters...................................
Mr. Cohen.................................... X
Mr. Johnson, Jr.............................. X
Mr. Pierluisi................................ X
Mr. Quigley.................................. X
Ms. Chu......................................
Mr. Deutch...................................
Ms. Sanchez..................................
Mr. Polis....................................
--------------------------
Total.................................... 14 8
------------------------------------------------------------------------
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. 4377, 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, June 25, 2012.
Hon. Lamar Smith, 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. 4377, the
``Responsibility and Professionally Invigorating Development
Act of 2012.''
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,
Douglas W. Elmendorf,
Director.
Enclosure
cc:
Honorable John Conyers, Jr.
Ranking Member
H.R. 4377--Responsibility and Professionally Invigorating Development
Act of 2012.
As ordered reported by the House Committee on the Judiciary
on June 6, 2012.
SUMMARY
H.R. 4377 would amend the Administrative Procedures 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 five years, assuming the availability
of appropriated funds, as Federal agencies would incur
additional administrative costs to meet the new requirements
imposed by H.R. 4377. Additional Federal expenditures also
would occur if agencies face legal challenges as a result of
the bill's implementation. In the long term, 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 timing or magnitude of such savings.
Enacting H.R. 4377 would not affect direct spending or
revenues; therefore, pay-as-you-go procedures do not apply.
H.R. 4377 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act.
MAJOR PROVISIONS
Under NEPA, Federal agencies are required to assess the
environmental consequences of an action and its alternatives
before proceeding. The affected Federal agencies are required
to consult with other interested agencies, document analysis,
and make this information available for public comment prior to
implementing a proposal. Most 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 bill's major provisions would:
LAuthorize sponsors of private construction
projects to prepare environmental reviews for NEPA
purposes if they are later reviewed and approved by the
Federal agency leading those reviews;
LRequire agencies to join a multiagency NEPA
review process as a participant or be precluded from
commenting on or opposing a construction project at a
later time;
LAllow the lead Federal agency to use
environmental reviews that were conducted for other
projects in close proximity to a proposed construction
project 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 two-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.
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:
LThe Department of Transportation (which
spends about $50 billion annually on highway and
transit related construction projects);
LThe Department of Defense (which spends
roughly $15 billion a year in construction); and
LThe Army Corps of Engineers (the Corps)
(which spends about $2 billion annually on civilian
construction projects).
The NEPA review process 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 codify many existing practices in
use by DOT and other agencies when conducting the NEPA review,
but 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 implement the bill.
For example, when DOT implemented similar NEPA requirements
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 additional
discretionary funding would be required over the next several
years by Federal agencies. Assuming that the level of effort
required under the bill would be similar to that experienced by
DOT under SAFE TEA-LU, CBO estimates that implementing the
bill's requirements would cost $5 million over the next five
years, subject to the availability of appropriated funds.
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 claims concerning NEPA that are 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. 4377 would affect the NEPA
process by amending the Administrative Procedures Act and not
the underlying law, CBO expects that agencies would 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 cannot estimate the level of spending that would occur,
however.
COST OF FEDERAL CONSTRUCTION PROJECTS
H.R. 4377 also could affect Federal spending for
construction projects, but CBO has no basis for estimating the
timing or magnitude of the net impact on Federal construction
costs. On the one hand, to the extent that implementing H.R.
4377 would successfully streamline the NEPA review process, the
time line for completing Federal construction projects would be
accelerated, and over the long term, Federal agencies would
realize efficiencies and ultimately savings in construction and
administrative costs. On the other hand, if enacting this
legislation leads to short-term delays in completing Federal
construction projects over the next five years due to increased
litigation, those efficiencies would not be gained immediately.
STAFF CONTACTS
The CBO staff contact for this estimate is Susanne S.
Mehlman. The estimate was approved by Theresa Gullo, Deputy
Assistant Director for Budget Analysis.
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.
4377 will encourage job creation by establishing a more
transparent and efficient Federal permitting process.
Advisory on Earmarks
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 4377 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 2012'' or as the ``RAPID Act.''
Sec. 2(a): Coordination of Agency Administrative Operations
for Efficient Decisionmaking. Subsection (a) to the new Section
560, 5 U.S.C., 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 (b) contains definitions of terms used in the Bill,
drawing upon NEPA regulations. Subsection (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.\81\
---------------------------------------------------------------------------
\81\RAPID Act Hearing, note 1 supra, at 198 (Testimony of Thomas
Margro) (``Protections are currently in place under NEPA and its
implementing regulations, and would remain in place under H.R. 4377, to
protect against conflicts of interest.'').
---------------------------------------------------------------------------
Subsection (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.\82\ 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.
---------------------------------------------------------------------------
\82\See, e.g., ibid. (The California Environmental Quality Act
``provides for a thorough consideration of the environmental impacts of
a project and the identification of mitigation measures that are
equivalent to NEPA. Moreover, as a law that requires project sponsors
to mitigate environmental impacts, CEQA is even more stringent than
NEPA, which is simply a procedural statute.'').
---------------------------------------------------------------------------
Subsection (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 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 within 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 a 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 (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 (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 (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 (i)(1) sets reasonable deadlines to complete the
environmental review.\83\ 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 among 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;\84\ 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.
---------------------------------------------------------------------------
\83\Cf. RAPID Act Hearing, note 1 supra, at 88 (Testimony of Dinah
Bear) (``These time periods are within the realm of the reasonable in
many cases 747if, importantly, an agency has adequate reasons to
implement NEPA and all other environmental laws that may be implicated
in a proposed action.'').
\84\NEPA regulations allow agencies to set comment periods of 45
days for a draft EIS and 30 days for a final EIS. See 40 C.F.R.
Sec. 1506.10.
---------------------------------------------------------------------------
Subsection (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 (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
(k) increases transparency by requiring each agency to report
annually to Congress regarding its compliance with NEPA.
Subsection (l) 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 (m) allows the Bill's process to apply to
individual projects or to categories of projects. Per
Subsections (n) and (o), the Bill does not apply retroactively,
only prospectively, to all projects for which an agency is
required to undertake an environmental review or to make a
decision that is based upon an environmental review.
Sec. 2(b). Makes technical amendments to the U.S. Code.
Sec. 2(c). Requires the CEQ 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 II--ADMINISTRATIVE PROCEDURE
551. Definitions.
* * * * * * *
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 appoval 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) 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.
(l) 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.
(m) Categories of Projects.--The authorities granted under
this subchapter may be exercised for an individual project or a
category of projects.
(n) 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.
(o) Applicability.--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.
* * * * * * *
Dissenting Views
INTRODUCTION
H.R. 4377, the ``Responsibly And Professionally
Invigorating Development Act of 2012'' or ``RAPID Act,'' is the
latest in a series of anti-regulatory measures that are
intended to prevent Federal agencies from implementing the
responsibilities that Congress gave them to protect public
health and safety. H.R. 4377 specifically does this by
requiring these agencies to adhere to a complex process with
respect to any construction project that is federally funded or
that needs approval by a Federal agency through the issuance of
a permit or regulatory decision.
In sum, this bill prioritizes speed, one-size-fits-all
deadlines, and project approval over protecting the public
interest and the environment by truncating the deliberative
process pursuant to which the environmental consequences of
proposed projects are considered. Specifically, H.R. 4377: (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 the National
Environmental Policy Act (NEPA),\1\ the law that this bill
primarily seeks to re-write; (2) creates a parallel
environmental review process for an ill-defined subset of
Federal projects that will lead to confusion and spawn
litigation that may very well result in further delay; (3)
forecloses potentially valuable agency and public input and
imposes unduly rigid deadlines for agency action; (4)
institutionalizes a bias in favor of approving an agency's
preferred alternative, and (5) is a thinly veiled effort to
amend NEPA, which is not in the committee's jurisdiction, by
amending the Administrative Procedure Act (APA).\2\
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\1\42 U.S.C. Sec. Sec. 4321-4347 (2012).
\2\5 U.S.C. Sec. Sec. 551-59, 701-06, 1305, 3105, 3344, 5372, 7521
(2012).
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Not surprisingly, 25 environmental groups, including the
Audubon Society, League of Conservation Voters, Natural
Resources Defense Council, Sierra Club, and The Wilderness
Society, have expressed strong opposition to H.R. 4377.\3\ In
addition, the White House's Council on Environmental Quality
(CEQ), which coordinates the implementation of NEPA throughout
the Executive Branch, adamantly opposes this bill.\4\ The CEQ
observes that H.R. 4377 is ``deeply flawed'' and that it ``will
undermine the environmental review process.''\5\
---------------------------------------------------------------------------
\3\Letter from Jim Bradley, Senior Director of Government
Relations, American Rivers et al. to Members of the Subcomm. on Courts,
Commercial and Administrative Law of the H. Comm. on the Judiciary
(Apr. 25, 2012) (on file with Democratic staff of the H. Comm. on the
Judiciary).
\4\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 Democratic staff of the H.
Comm. on the Judiciary).
\5\Id. at 1.
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For these reasons and those described below, we
respectfully dissent and urge our colleagues to reject this
seriously flawed bill.
DESCRIPTION AND BACKGROUND
H.R. 4377 amends the APA to establish a 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 was introduced on April 18, 2012 by
Representative Dennis Ross (R-FL) together with Committee
Chairman Lamar Smith (R-TX), Subcommittee on the Courts,
Commercial and Administrative Law (CCAL) Chairman Howard Coble
(R-NC), and Representative Collin Peterson (D-MN). The CCAL
Subcommittee held a hearing on this bill on April 25, 2012.
Majority witnesses were Gus Bauman, Esq. with Beveridge &
Diamond; William Kovacs, Vice President for the Environment,
Technology & Regulatory Affairs Division, U.S. Chamber of
Commerce; and Tom Margro, CEO, Transportation Corridor
Agencies. The Minority witness was Dinah Bear, former General
Counsel, Council on Environmental Quality, who explained in
detail the many problematic aspects of the bill.
A section-by-section explanation of the reported version of
the bill's principal provisions follows. Section 2 adds a new
subchapter to the APA. All further section references are to
the proposed new provisions added by the bill. New section
560(a) sets forth a Congressional declaration of purpose. It
states that this new subchapter is intended 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. The apparent scope of this provision is extremely
extensive, as it is not limited to environmental actions by
agencies.
Subsection (a) also states that the subchapter 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. Also, it is somewhat
hypocritical for supporters of this legislation to criticize
``time delays,'' when virtually all of the regulatory
legislation that this Committee has considered this Congress
has been intended to slow down or stop the regulatory processes
of agencies.
Subsection (b) sets forth various definitions, including
those for environmental assessments, environmental impact
statements (EISs), and findings of no significant impact
(FONSIs). An environmental document (ED), for example, means an
environmental assessment or an EIS, including any supplemental
document or document prepared pursuant to a court order. It
should be noted that the bill frequently utilizes the term
``project,'' which is defined here as ``major Federal actions
that are construction activities undertaken with Federal funds
or construction activities that require approval by a permit or
regulatory decision issued by a Federal agency.'' As a result,
it appears that the bill is largely limited to construction
projects that are either federally-funded or that require
Federal approval. NEPA, however, applies to a broad range of
activities that go beyond construction projects. These
activities include such diverse undertakings as management
plans; fishing, hunting, and grazing permits; Defense
Department base realignment and closures activities; and
treaties.
Subsection (c) authorizes the lead agency (which is the
Federal agency responsible for preparing an environmental
assessment or EIS) to request a project sponsor (which is
defined as including an agency, private entity, or public-
private entity that seeks approval for a project or otherwise
is responsible for undertaking a project), to prepare any
document for purposes of an environmental review by a Federal
agency, providing the lead 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
environmental assessment may be prepared for a project, except
for supplemental environmental documents prepared under NEPA or
environmental documents prepared pursuant to court order. The
lead agency must prepare the EIS or environmental assessment
``except as otherwise provided by law,'' or, in other words, as
provided by subsection (c). 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 ED prepared by the lead agency.
Subsection (d)(1)(B) provides that upon request of a
project sponsor, a lead agency may 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. It is unclear why this provision is in
the alternative and why it is needed. Under current law, a lead
agency may utilize such analyses whether the project sponsor
requests it or not.
Subsection (d)(2)(A) requires that a lead agency, upon
request of a project sponsor, to adopt a document prepared for
a project under state law and procedures as the EIS or
environmental assessment for the project, providing the state
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) provides that an ED adopted pursuant
to the above is deemed to satisfy the lead agency's obligation
under NEPA to prepare an EIS or environmental assessment.
Subsection (d)(2)(C) provides that the lead agency--after
preparation of such ED, but before its adoption by the agency--
must 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 45 days from
publication of the supplement. It is unclear whether this time
frame would be sufficient for all projects.
Subsection (d)(2)(E) requires a lead agency 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 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, subsection (d)(3) authorizes the lead agency 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 lead agency 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 lead agency to be
responsible for inviting and designating participating agencies
in accordance with subsection (e) and such invitation and
notice of designation must be in writing.
Subsection (e)(2) provides that a Federal agency required
to adopt the lead agency's ED for a project must be designated
as a participating agency and collaborate on the preparation of
the ED, unless the agency informs the lead agency in writing by
a time specified by the lead agency 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 lead agency 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 and heads of
``appropriate'' tribal and local governments. Such invitation
must set a 30-day deadline for responses to be submitted. This
period may be extended by the lead agency for good cause shown.
Any agency that fails to respond prior to the deadline is
deemed to have declined the invitation. This 30-day time frame
may be unreasonable under certain circumstances.
Subsection (e)(4) pertains to an agency that declines a
designation or invitation by a lead agency to be a
participating agency. It precludes such agency from submitting
comments on any document prepared under NEPA for such project
or taking any measures to oppose, based on the environmental
review, any permit, license, or approval related to such
project. This prohibition may preclude an agency from bringing
to the attention of the lead agency critical information and
thereby allow the lead agency to disregard such information.
This appears to be a very shortsighted provision. On the one
hand, it could encourage various agencies, even those with only
a peripheral interest in the project, to become a participating
agency 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 the designation as a
participating agency 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 lead agency to designate a
participating agency as a cooperating agency under 40 C.F.R.
part 1500. Such designation has no effect on the agency's
designation as a participating agency. On the other hand, only
a participating agency may be designated as a cooperating
agency. It is not clear, however, what the substantive
differences are between a participating agency and a
cooperating agency.
Subsection (e)(7) requires each Federal agency to implement
its responsibilities under other applicable law concurrently
and in conjunction with its NEPA review, and in accordance with
CEQ'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 participating agency 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
lead agency cannot act upon, respond to, or include in any
document prepared under NEPA any comment submitted by a
participating agency that concerns matters outside of the
participating agency's authority and expertise.
Subsection (f)(1) requires the project sponsor to give the
Federal agency responsible for undertaking a project 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 lead agency
for the project. In turn, the lead agency must initiate the
environmental review within 45 days of receipt of such notice
by inviting or designating agencies to become a PA. If the lead
agency determines that no participating agency 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 lead agency, 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. Note that this is the first and only
time that the term ``scoping'' is used in this legislation. It
is undefined. This illustrates the problem of creating a
parallel universe on an incomplete basis with key terms that
are vague and undefined.
Subsection (g)(2) provides that following participation
pursuant to the above, the lead agency must determine the range
of alternatives for consideration in any document that the lead
agency is responsible for preparing for the project, subject to
certain limitations. First, no Federal agency may 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. This prohibition may be overly
restrictive depending on the circumstances presented. Second,
where a project is being constructed, managed, funded, or
undertaken by a project sponsor that is not a Federal agency,
Federal agencies may 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 that are technically and economically feasible.
This requirement may also be overly restrictive under certain
circumstances.
Subsection (g)(3)(A) requires the lead agency 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 lead agency must include in the
environmental document a description of the methodologies used
and how they were selected. Subsection (g)(3)(B) provides that
if the lead agency 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) authorizes the lead agency, 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 lead agency 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 environmental assessment to identify
the potential effects of such alternative on employment,
including potential short-term and long-term impacts.
Subsection (h)(1)(A) requires the lead agency to establish
and implement a plan for coordinating public and agency
participation and 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
lead agency, after consultation with each participating agency
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 participating agency must comply
with such time periods. The lead agency must disregard, not
respond to, or not 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 periods
established in the schedule. If a participating agency fails to
object in writing to a lead agency's decision, finding, or
request for concurrence within the time period established by
law or by the lead agency, the agency shall be deemed to have
concurred in the decision, finding, or request. The provision
is problematic where there is a conflict between current law
and the lead agency's determination. 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 lead agency to lengthen an
established schedule for good cause. The lead agency 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 participating
agencies and the project sponsor within 15 days of completion
or modification and made available to the public. This
provision, however, fails to specify who is to make the
schedule available and how it is to be made available to the
public. Finally, subsection (h)(1)(F) provides that the lead
agency 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. Note that there is no paragraph (2).
Subsection (i) 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 EIS, the lead agency must issue such
statement within 2 years after the earlier of the date on which
the lead agency receives the project initiation request or a
Notice of Intent to Prepare an EIS is published in the Federal
Register. Where the lead agency has prepared an environmental
assessment and determined that an EIS is required, the lead
agency must issue the EIS within 2 years from the date of
publication of the Notice of Intent to Prepare an EIS in the
Federal Register. For a project requiring an environmental
assessment, the lead agency 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 lead agency
receives the project initiation request, makes a decision to
prepare an environmental assessment, or sends out participating
agency invitations. These deadlines may be extended only if a
lead agency, project sponsor and participating agency jointly
agree or the lead agency 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 environmental
assessment 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 lead agency 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 lead agency, project sponsor, and participating agency, or
the deadline is extended by the lead agency for good cause. For
all other comment periods for agency or public comments in the
environmental review process, the lead agency must establish a
comment 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
lead agency, project sponsor, and participating agency, or if
the deadline is extended by the lead agency 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 relates to the undertaking of a project
reviewed under NEPA. With respect to instances where a Federal
agency must approve or otherwise act upon a permit, license or
similar application for approval relating to a project prior to
the record of decision or FONSI, subsection (i)(4)(A) requires
such agency to approve or otherwise act no later than 90 days
after: (1) all other relevant agency review relating to the
project is complete; and (2) the lead agency 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. Disputes could arise as to what constitutes
``good cause.'' Also, it is unclear what ``otherwise act''
would mean.
With respect to any approval or other action related to a
project by a Federal agency not covered above, subsection
(i)(4)(B) requires such agency to approve or otherwise act not
later than 180 days after: (1) all other relevant agency review
related to the project is complete; and (2) the lead agency
issues the record of decision or FONSI, unless a different
deadline is established by agreement of the Federal agency,
lead agency, and project sponsor, or the Federal agency extends
the deadline for good cause. Such extension may not be longer
than 1 year after the lead agency issues the record of decision
or FONSI. This provision gives the project sponsor a lot of
control. Disputes could arise as to what constitutes ``good
cause.'' The time frame may be unreasonable under certain
circumstances. Also, it is not clear what ``otherwise act''
would mean.
If the Federal agency fails to approve or otherwise act
upon a permit, license, or other similar application for
approval related to a project within the time frames set forth
above, subsection (i)(4)(C) provides that such permit, license,
or application must be deemed approved by such agency and the
agency must take action in accordance with such approval within
30 days of the applicable time frame. This provision would be
very problematic for highly complex projects that require more
time for review. Subsection (i)(4)(D) prohibits another agency
from reversing a permit, license or application deemed approved
under subsection (C). Also, it prohibits a court from setting
aside such deemed approval by reason that it occurred under
subsection (C).
Subsection (j)(1) requires the lead agency and
participating agency 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. This subsection does not
address the situation where, for example, a participating
agency chooses not to work cooperatively.
Subsection (j)(2) requires the lead agency to make
information available to a participating agency 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. The ramifications that would result if the
lead agency fails to comply with this provision are unclear.
Subsection (j)(3) requires the participating agency, based
on information received from the lead agency, to identify as
early as practicable any issue of concern regarding the
project's potential environmental, historic, or socioeconomic
impacts. It is unclear what happens if the participating
agency's concerns are not based on information provided by the
lead agency. 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. Thus, the bill would essentially codify a presumption
that all projects should be approved in some form.
Subsection (j)(4) requires the lead agency, upon request of
a project sponsor to 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
such project. If a resolution cannot be achieved within 30 days
following such meeting and a determination by the lead agency
that all information necessary to resolve the issue has been
obtained, the lead agency must notify all participating
agencies, the project sponsor, and the CEQ for further
proceedings in accordance with section 204 of NEPA and publish
such notification in the Federal Register.
Subsection (k) 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
environmental assessment; (2) projects for which the agency
issued a record of decision or FONSI 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 (l)(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 and for which an opportunity for comment was
provided, 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 lead agency 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 (l)(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 (l)(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 (m) provides that the authorities under
subchapter IIA may be exercised for an individual project or
category of projects.
Subsection (n) specifies that the amendments made by this
legislation apply prospectively to environmental reviews and
environmental decisionmaking processes initiated after the date
of enactment.
Subsection (o) 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, which is an unrealistic time frame. Also, the CEQ
must designate states with laws and procedures that satisfy 5
U.S.C. section 560(d)(2)(A), as added by the bill. 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. Again, these time
frames may not be feasible.
CONCERNS WITH H.R. 4377
H.R. 4377 imposes a series of problematic review and
approval requirements for agencies responsible for approving
construction projects that are federally funded or that require
Federal approval. The bill ignores the fact that for more than
40 years, NEPA has provided an effective framework for all
types of proposed actions (not just construction projects) that
require Federal approval pursuant to a Federal law, such as the
Clean Water Act.\6\ To ensure compliance with NEPA, the CEQ has
issued regulations and guidance that makes measures such as
H.R. 4377 unnecessary. Moreover, courts have developed a large
body of case law interpreting the key terms of NEPA that have
guided its implementation.
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\6\33 U.S.C. Sec. Sec. 1344 et seq. (2012).
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Contrary to the bill's title, H.R. 4377 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 potentially will shift
control of the approval process from Federal agencies that are
charged with protecting the health and safety of our Nation's
citizens to the private sector, which is committed to with
maximizing shareholder interests.
I. H.R. 4377 Addresses a Largely Nonexistent Problem under NEPA
While not perfect, the NEPA framework for environmental
reviews 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 environmental
impact statement (EIS) or environmental assessment because of
the complexity of the issues they present, NEPA provides
flexibility to permit careful review without imposing
artificial deadlines.
To the extent that H.R. 4377 is intended to reduce delays
in the conduct of environmental reviews of Federal projects, it
is aimed at the wrong target. Broadly speaking, H.R. 4377
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 and who was intimately involved in the
implementation of NEPA throughout the Executive Branch,
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.\7\
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\7\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).
In a similar vein, the Congressional Research Service, in an
April 2012 report on the environmental review process for
---------------------------------------------------------------------------
federally funded highway projects, noted:
The time it takes to complete the NEPA process is often
the focus of debate over project delays attributable to
the overall environmental review stage. However, 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.\8\
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\8\Linda Luther, The Role of the Environmental Review Process in
Federally Funded Highway Projects: Background and Issues for Congress,
Congressional Research Service Report for Congress, R42479, Apr. 11,
2012, at unnumbered summary page.
In light of the foregoing, H.R. 4377's focus on upending the
NEPA review process for construction projects is, at best,
misplaced.
To assess the true scope of purported delays in the
environmental review process, Representative Sheila Jackson Lee
(D-TX) offered an amendment at markup that would have required
the Government Accountability Office to study and report to
Congress on the amount of time required to complete
environmental reviews under NEPA for projects going back 4
years prior to the bill's enactment date. The amendment was
defeated by an 11 to 12 vote along party lines.
II. H.R. 4377 Establishes a Parallel Regulatory Approval Scheme That
Will Lead to Confusion, Delay, and Litigation
Rather than streamlining the NEPA process, H.R. 4377 only
adds complication, confusion, and potential litigation to the
process. NEPA establishes a flexible framework for
environmental impact reviews that applies to all Federal
agencies and all actions affecting the environment that require
Federal approval. This panoply of Federal actions includes
fishing, hunting, and grazing permits, land management plans,
military base realignment and closure activities, and treaties.
The changes to the NEPA review process contemplated by H.R.
4377, however, apply only to a subset of Federal activities,
namely, proposed Federal construction projects, which the bill
itself does not define. At the outset, H.R. 4377 could lead to
litigation over whether a given project is a ``construction
project'' subject to this new, non-NEPA review process.
Additionally, the establishment of a different NEPA review
process for an undefined subset of Federal activities could
lead to two different environmental review processes for the
same project. Consider the construction of a new nuclear
reactor facility. H.R. 4377 would apply to the building phase
of the project, but not to the re-licensing or 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 laws to one
undertaking.
H.R. 4377 will further cause confusion by incorporating
some facets of current NEPA practice, but ignoring 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,'' which is a new term. As
a result, courts will be required to interpret new terminology
and requirements without the benefit of any precedent.
Further still, 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 important to
keep in mind that few states have meaningful environmental
laws. Second, 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 presents the potential for numerous unintended
consequences. For example, section 560(e) 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.
Rather than streamlining the environmental review process
as set forth in the bill's findings, H.R. 4377 will result in
delay stemming from litigation over the numerous discrepancies
between H.R. 4377 and current CEQ regulations implementing
NEPA. These include new or inconsistent definitions, the
expansion of a project sponsor's authority to prepare any NEPA
document rather than just environmental assessments, and more
limited opportunity to evaluate alternatives.
H.R. 4377's ultimate effect will be to both undermine
longstanding and effective environmental reviews under NEPA
while also potentially hampering agencies from engaging in
proper environmental reviews by creating unnecessary confusion,
litigation, and delay. Such delay will ultimately harm public
health and safety by slowing down the approval process for any
health or safety related construction projects.
In an effort to ensure that H.R. 4377 would not delay
certain critical projects, two Members offered amendments that
would have carved out exceptions from the bill for these
undertakings. Representative Hank Johnson (D-GA) offered an
amendment at markup that would have limited H.R. 4377 to those
projects that CEQ determines would not have a detrimental
effect on human health. This amendment was defeated by a 10 to
13 vote along party lines. Representative Jerrold Nadler (D-NY)
offered an amendment at markup that would have excepted from
H.R. 4377 any project pertaining to nuclear safety. This
amendment was defeated by a 12 to 13 vote also along party
lines.
III. H.R. 4377 Forecloses Potentially Meaningful Public and Government
Input and Imposes Rigid One-Size-Fits-All Deadlines
Several provisions in H.R. 4377 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 the ability of
such agency to provide helpful input. Similarly, the bill
prevents a lead agency from considering any untimely comments,
even if they provide meaningful insight.
H.R. 4377 minimizes the important role that the public
plays in the NEPA process, such as participation in scoping,
proposing alternatives, review of analyses and public comment,
whether written or in public hearings. NEPA requires agencies
to use a wide range of outreach mechanisms to solicit views by
people who would be affected by the proposed project.
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 as a lot of environmental reviews do
not take much time. On the other hand, there are occasionally
very complicated and complex projects that require extended
review periods that would exceed the deadlines set forth in new
section 560(i). The bill allows these deadlines to be extended
by consent of the interested parties or for good cause, which
may not provide sufficient flexibility.
H.R. 4377 also restricts public participation by limiting
judicial review of certain agency actions. Specifically,
section 560(i)(4)(D) prohibits a court from reversing an
agency's approval of a permit, license, or other similar
application when such application had been ``deemed'' approved
because of the agency's failure to meet an applicable deadline
under H.R. 4377.
The NEPA process is designed to facilitate public
participation and interagency cooperation in the review of
potential environmental impacts of Federal actions. To
highlight this fundamental purpose of NEPA, Ranking Member John
Conyers, Jr. (D-MI) offered an amendment at markup that simply
would have added a rule of construction to H.R. 4377 clarifying
that nothing in H.R. 4377 shall be construed to change or limit
any law or regulation that requires or provides for public
comment or public participation in the agency decisionmaking
process. The amendment was defeated by a 12 to 13 vote along
party lines, an implicit admission against interest to the
extent that H.R. 4377's proponents claim that it does not
adversely affect the public's ability to participate in
environmental reviews.
IV. H.R. 4377 Institutionalizes Bias Towards Approving an Agency's
Preferred Alternative
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 decisionmaking 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.\9\
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\9\40 C.F.R. Sec. 1502.14 (2012).
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H.R. 4377 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. While
this may seem fine in theory, in reality, developing one
alternative to a higher level of detail than other alternatives
inevitably raises the risk that the preferred alternative will
be more likely to be approved than the other alternatives,
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.\10\
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\10\H.R. 4377 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.
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V. H.R. 4377 Is a Thinly Disguised Effort to Amend NEPA by Amending the
APA
H.R. 4377 makes substantive changes to NEPA and its
implementing regulations through the ruse of amending the APA.
NEPA is not within the jurisdiction of the Judiciary Committee.
The proponents of this bill, however, purport to amend the APA
as this law is within our Committee's jurisdiction. This is a
very problematic and deceptive practice that our Committee must
oppose. We must not allow the APA to operate as a back door to
amending substantive law that is not within the Committee's
jurisdiction.
H.R. 4377's proponents have never offered a reason why any
of the changes to or codifications of NEPA practice and other
laws contemplated in H.R. 4377 should belong in the APA, either
during the CCAL hearing or the full Committee markup of this
bill. Simply put, there is no substantive reason why amendments
or additions to NEPA's environmental review requirements or to
requirements under other laws cannot be accomplished by
amending NEPA or these other laws directly.
The APA is the ``administrative Constitution'' and, like
the U.S. Constitution, is a broad framework that should not be
tinkered with lightly. If enacted, H.R. 4377 opens the door to
amending other statutes or substantive law by simply adding
subchapters to the APA. This is not the purpose or function of
the APA, and this Committee should guard against that
temptation.
To address this concern, Representative Steve Cohen (D-TN)
offered an amendment during markup that would have struck the
creation of a new APA subchapter and re-stated the substantive
portions of H.R. 4377 as freestanding legislative language.
Representative Dennis Ross (R-FL), the bill's sponsor, failed
to even address our concern that H.R. 4377 misuses the APA.\11\
Nevertheless, this amendment was defeated by a 9 to 10 vote
along party lines.
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\11\Unofficial Tr. of Markup of H.R. 4377, the Responsibly And
Professionally Invigorating Development Act of 2012: Markup of H.R.
4377 Before the H. Comm. on the Judiciary, 112th Cong. 157 (2012).
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CONCLUSION
H.R. 4377 is based on the unproven assumptions that there
are unwarranted delays in the environmental review process
required by NEPA and in permit approvals and, to the extent
that there are such delays, that NEPA is to blame for such
delays. The bill also will result in confusion, litigation, and
delay by creating 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; institutionalize a bias
in favor of approving an agency's preferred alternative; and
inappropriately change substantive law by amending the APA.
For the foregoing reasons, we strongly urge our colleagues
to oppose H.R. 4377.
John Conyers, Jr.
Howard L. Berman.
Jerrold Nadler.
Melvin L. Watt.
Sheila Jackson Lee.
Steve Cohen.
Henry C. ``Hank'' Johnson, Jr.
Mike Quigley.
Judy Chu.
Ted Deutch.
Jared Polis.