Process coordination and rules of procedure

(a)

Definitions

In this section: (1)

Administrator

The term Administrator means the Administrator of the Environmental Protection Agency. (2)

Chairperson

The term Chairperson means the Chairperson of the Nuclear Regulatory Commission. (3)

Federal energy authorization

(A)

In general

The term Federal energy authorization means any authorization required under Federal law (including regulations), regardless of whether the law is administered by a Federal or State administrative agency or official, with respect to the siting, construction, expansion, or operation of an energy facility, including— (i)a coal-fired electric generating plant; (ii)a nuclear power electric generating plant; (iii)a natural gas-fired electric generating plant; (iv)a waste-to-energy facility; (v)a geothermal electric generating facility; (vi)a wind or solar electric generating facility; (vii)a petroleum refinery; (viii)a biorefinery; (ix)a biogas conversion unit; (x)a shale-oil production site; or (xi)an oil or gas exploration and production lease. (B)

Inclusions

The term Federal energy authorization includes any permit, special use authorization, certification, opinion, or other approval required under Federal law (including regulations) with respect to the siting, construction, expansion, or operation of an energy facility referred to in subparagraph (A). (b)

Designation as lead agency

(1)

In general

Except as provided in paragraph (2), the Environmental Protection Agency shall act as the lead agency for the purposes of coordinating all Federal energy authorizations and related environmental reviews. (2)

Exception

In the case of a nuclear power electric generating facility, the Nuclear Regulatory Commission shall act as the lead agency for purposes of coordinating all Federal nuclear energy authorizations. (3)

Other agencies

Each Federal or State agency or official required to provide a Federal energy authorization shall cooperate with the Administrator or the Chairperson, as applicable, including by complying with any applicable deadline relating to the Federal energy authorization established by the Administrator or Chairperson under subsection (c). (c)

Schedule

(1)

Authority of Administrator

The Administrator shall establish a schedule for all Federal energy authorizations as the Administrator determines to be appropriate— (A)to ensure expeditious completion of all proceedings relating to Federal energy authorizations; and (B)to accommodate any applicable related schedules established by Federal law (including regulations). (2)

Authority of Chairperson

The Chairperson shall collaborate with the Administrator to establish an appropriate schedule for all environmental authorizations required with respect to facilities described in subsection (b)(2) that— (A)takes into consideration the longer lead time required by the permitting process for nuclear power electric generating facilities; and (B)allows for simultaneous environmental and security reviews of potential sites to provide for joint authorization of the sites by the Administrator and the Chairperson. (3)

Failure to meet schedule

If a Federal or State administrative agency or official fails to complete a proceeding for any approval required for a Federal energy authorization in accordance with the schedule established under paragraph (1) or (2), any affected applicant for the Federal energy authorization may seek judicial review of the failure under subsection (e). (d)

Consolidated record

(1)

In general

Except as provided in paragraph (2), the Administrator, in cooperation with Federal and State administrative agencies and officials, shall maintain a complete consolidated record of all decisions made and all actions carried out by the Administrator or a Federal or State administrative agency or officer with respect to any Federal energy authorization. (2)

Exception

The Chairperson, in cooperation with the Administrator and other Federal and State administrative agencies and officials, shall maintain a complete consolidated record of all decisions made and all actions carried out by the Commissioner or a Federal or State administrative agency or officer with respect to any Federal authorization of a nuclear power electric generating facility. (3)

Treatment

(A)

In general

Except as provided in subparagraph (B), the records under paragraphs (1) and (2) shall serve as the record for a decision or action for purposes of judicial review of the decision or action under subsection (e). (B)

Exception

If the United States Court of Appeals for the District of Columbia determines that a record under paragraph (1) or (2) contains insufficient information, the court may remand the proceeding to the Administrator for development of the record. (e)

Judicial review

(1)

In general

The United States Court of Appeals for the District of Columbia shall have original and exclusive jurisdiction over any civil action for the review of— (A)an order or action by a Federal or State administrative agency or official relating to a Federal energy authorization; or (B)an alleged failure to act by a Federal or State administrative agency or official with respect to a Federal energy authorization. (2)

Remand

(A)

In general

The court shall remand a proceeding to the applicable agency or official in any case in which the court determines under paragraph (1) that— (i)(I)an order or action described in paragraph (1)(A) is inconsistent with the Federal law applicable to the Federal energy authorization; (II)a failure to act described in paragraph (1)(B) has occurred; or (III)a Federal or State administrative agency or official failed to meet an applicable deadline under subsection (c) with respect to a Federal energy authorization; and (ii)the order, action, or failure to act would prevent the siting, construction, expansion, or operation of an energy facility referred to in subsection (a)(2)(A). (B)

Schedule

On remand of an order, action, or failure to act under subparagraph (A), the court shall establish a reasonable schedule and deadline for the agency or official to act with respect to the remand. (3)

Action by lead agency

(A)

In general

Except as provided in subparagraph (B), for any civil action brought under this subsection, the Administrator shall promptly file with the court the consolidated record compiled by the Administrator pursuant to subsection (d)(1). (B)

Exception

For any civil action brought under this subsection with respect to a nuclear power electric generating facility, the Chairperson shall promptly file with the court the consolidated record compiled by the Chairperson pursuant to subsection (d)(2). (4)

Expedited consideration

The Court shall provide expedited consideration of any civil action brought under this subsection. (5)

Attorney's fees

(A)

In general

Except as provided in subparagraph (B), in any action challenging a Federal energy authorization that has been granted, reasonable attorney's fees and other expenses of the litigation shall be awarded to the prevailing party. (B)

Exception

Subparagraph (A) shall not apply to any action seeking a remedy for— (i)denial of a Federal energy authorization; or (ii)failure to act on an application for a Federal energy authorization.

Energy security and regulatory reform

(a)

Energy-related regulatory reform

Title V of the National Energy Conservation Policy Act (42 U.S.C. 8241 et seq.) is amended by adding at the end the following:

Energy-related regulatory reform

571.

Definitions

In this part: (1)

Advisory committee

The term advisory committee means an advisory committee established under section 572(a). (2)

Applicable agency

The term applicable agency means any Federal department or agency that, during the 10-year period ending on the date on which an advisory committee is established, promulgated a major rule. (3)

Benefit

The term benefit, with respect to a rule, means any reasonably identifiable, significant, and favorable effect (whether quantifiable or unquantifiable), including a social, health, safety, environmental, economic, energy, or distributional effect, that is expected to result, directly or indirectly, from the implementation of, or compliance with, the rule. (4)

Cost

The term cost, with respect to a rule, means any reasonably identifiable and significant adverse effect (whether quantifiable or unquantifiable), including a social, health, safety, environmental, economic, energy, or distributional effect, that is expected to result, directly or indirectly, from the implementation of, or compliance with, the rule. (5)

Energy rule

The term energy rule means a major rule that has a direct impact on the production, distribution, or consumption of energy, as determined by the Secretary of Energy. (6)

Flexible regulatory option

(A)

In general

The term flexible regulatory option means an option at a point in the regulatory process that provides flexibility to any person subject to an applicable rule with respect to complying with the rule. (B)

Inclusion

The term flexible regulatory option includes any option described in subparagraph (A) that uses— (i)a market-based mechanism; (ii)an outcome-oriented, performance-based standard; or (iii)any other option that promotes flexibility, as determined by the head of the applicable agency. (7)

Major rule

The term major rule means a rule or group of closely related rules— (A)the reasonably quantifiable increased direct and indirect costs of which are likely to have a gross annual effect on the United States economy of at least $100,000,000, or that has a significant impact on a sector of the economy, as determined by— (i)the head of the agency proposing the rule; or (ii)the President (or a designee); or (B)that is otherwise designated as a major rule by the head of the agency proposing the rule or the President (or a designee), based on a determination that the rule is likely to result in— (i)a substantial increase in costs for— (I)consumers; (II)an industrial sector; (III)nonprofit organizations; (IV)any Federal, State, or local governmental agency; or (V)a geographical region; (ii)a significant adverse effect on— (I)competition, employment, investment, productivity, innovation, health, safety, or the environment; or (II)the ability of enterprises with principal places of business in the United States to compete in domestic or international markets; (iii)a serious inconsistency or interference with an action carried out or planned to be carried out by another Federal agency; (iv)the material alteration of the budgetary impact of— (I)entitlements, grants, user fees, or loan programs; or (II)the rights and obligations of recipients of such a program; or (v)disproportionate costs to a class of regulated persons, including relatively severe economic consequences for that class. (8)

Rule

(A)

In general

The term rule has the meaning given the term in section 551 of title 5, United States Code. (B)

Inclusion

The term rule includes any statement of general applicability that alters or creates a right or obligation of a person not employed by the applicable regulatory agency. (C)

Exclusions

The term rule does not include— (i)a rule of particular applicability that approves or prescribes— (I)future rates, wages, prices, services, corporate or financial structures, reorganizations, mergers, acquisitions, or accounting practices; or (II)any disclosure relating to an item described in subclause (I); (ii)a rule relating to monetary policy or to the safety or soundness of an institution (including any affiliate, branch, agency, commercial lending company, or representative office of the institution (within the meaning of the International Banking Act of 1956 (12 U.S.C. 1841 et seq.)) that is— (I)a federally-insured depository institution or any affiliate of such an institution (as defined in section 2(k) of the Bank Holding Company Act of 1956 (12 U.S.C. 1841(k)); (II)a credit union; (III)a Federal home loan bank; (IV)a government-sponsored housing enterprise; (V)a farm credit institution; or (VI)a foreign bank that operates in the United States; or (iii)a rule relating to— (I)the payment system; or (II)the protection of— (aa)deposit insurance funds; or (bb)the farm credit insurance fund.

572.

Advisory committees for energy rules

(a)

Establishment

Not later than 90 days after the date of enactment of this part, and every 5 years thereafter, the head of each applicable agency shall establish an advisory committee to review all energy rules promulgated by the applicable agency during the 10-calendar-year period ending on the date on which the advisory committee is established. (b)

Membership

(1)

In general

The head of an applicable agency shall appoint not more than 15 members to serve on an advisory committee. (2)

Requirement

In appointing members to serve on an advisory committee under paragraph (1), the head of the applicable agency shall ensure that the membership of the advisory committee reflects a balanced cross-section of public and private parties affected by energy rules issued by the applicable agency, including— (A)small businesses; (B)units of State and local government; and (C)public interest groups. (3)

Prohibition on Federal Government employment

A member of an advisory committee appointed under paragraph (1) shall not be an employee of the applicable agency for which the advisory committee is established. (c)

Term; vacancies

(1)

Term

A member shall be appointed for the life of an advisory committee. (2)

Vacancies

A vacancy on an advisory committee— (A)shall not affect the powers of the advisory committee; and (B)shall be filled in the same manner as the original appointment was made. (d)

Chairperson; panels

The head of an applicable agency— (1)shall select a Chairperson from among the members of an advisory committee; and (2)may establish such panels as the head determines to be necessary to assist an advisory committee in carrying out duties of the advisory committee. (e)

Duties

(1)

In general

An advisory committee shall review all energy rules promulgated by the applicable agency for which the advisory committee is established during the 10-calendar-year period ending on the date on which the advisory committee is established, in accordance with section 573. (2)

Public participation

An advisory committee shall solicit public comment with respect to energy rules reviewed by the advisory committee through appropriate means, including— (A)hearings; (B)written comments; (C)public meetings; and (D)electronic mail. (f)

Travel expenses

A member of an advisory committee shall be allowed travel expenses, including per diem in lieu of subsistence, at rates authorized for an employee of an agency under subchapter I of chapter 57 of title 5, United States Code, while away from the home or regular place of business of the member in the performance of the duties of the advisory committee. (g)

Termination

An advisory committee shall terminate on the date that is 5 years after the date on which the advisory committee is established.

573.

Review of energy rules

(a)

List

(1)

In general

An advisory committee shall develop a list describing each energy rule promulgated during the preceding 10-year period by the applicable agency for which the advisory committee is established that, as determined by the advisory committee— (A)should be reviewed by the head of the applicable agency; and (B)reasonably could be subject to such a review during the 5-calendar-year period beginning on the date on which the energy rule is included on the list. (2)

Factors for consideration

In developing a list under paragraph (1), an advisory committee shall take into consideration— (A)the cost of an energy rule with respect to energy production or energy efficiency of any individual or entity subject to the energy rule; (B)the extent to which an energy rule could be revised to substantially increase net benefits of the energy rule, including through flexible regulatory options; (C)the relative importance of an energy rule, as compared to other energy rules considered for inclusion on the list; and (D)the discretion of the applicable agency under an applicable authorizing law or regulation to modify or repeal the energy rule. (3)

Submission

Not later than 1 year after the date on which an advisory committee is established and annually thereafter, the advisory committee shall submit to the head of the applicable agency for which the advisory committee is established the list developed under paragraph (1), with each energy rule represented on the list in descending order of importance, in accordance with the priority assigned to review of the energy rule by the advisory committee. (4)

Action by applicable agency

As soon as practicable after receipt of a list under paragraph (3), the head of an applicable agency shall— (A)publish the list in the Federal Register; and (B)submit to Congress a copy of the list. (b)

Schedules for review

(1)

Preliminary schedule

(A)

In general

Not later than 60 days after the date of receipt of a list under subsection (a)(3), the head of an applicable agency shall develop and publish in the Federal Register a preliminary schedule for review by the applicable agency of the energy rules included on the list, including an explanation for each modification of the list by the applicable agency. (B)

Notice and comment

The head of an applicable agency shall provide notice and an opportunity for public comment on a preliminary schedule for a period of not less than 60 days after the date of publication of the preliminary schedule under subparagraph (A). (2)

Final schedule

(A)

In general

Not later than 60 days after the date of expiration of the applicable comment period under paragraph (1)(B), the head of the applicable agency shall develop and publish in the Federal Register a final schedule for review of the energy rules by the applicable agency. (B)

Contents

(i)

In general

A final schedule under subparagraph (A) shall include a deadline by which the applicable agency shall review each energy rule included on the list. (ii)

Requirement

A deadline described in clause (i) shall be not later than 5 years after the date of publication of the final schedule. (3)

Requirement

In developing a preliminary or final schedule under this subsection, the head of an applicable agency— (A)shall defer, to the maximum extent practicable, to the recommendations of the advisory committee; but (B)may modify the list of the advisory committee, taking into consideration— (i)the factors described in subsection (a)(2); and (ii)any limitation on resources or authority of the applicable agency. (c)

Review

(1)

Required publications

For each energy rule included on the final schedule of an applicable agency under subsection (b)(2), the head of the applicable agency shall publish in the Federal Register— (A)not later than the date that is 2 years before the deadline applicable to the energy rule under the final schedule, a notice that solicits public comment regarding whether the energy rule should be continued in effect, modified, or repealed; (B)not later than the date that is 1 year before the deadline applicable to the energy rule under the final schedule, a notice that— (i)addresses public comments received as a result of the notice under subparagraph (A); (ii)contains a preliminary analysis by the applicable agency relating to the energy rule; (iii)contains a preliminary determination of the applicable agency regarding whether the energy rule should be continued in effect, modified, or repealed; and (iv)solicits public comment on that preliminary determination; and (C)not later than the date that is 60 days before the deadline applicable to the energy rule under the final schedule, a final notice relating to the energy rule that— (i)addresses public comments received as a result of the notice under subparagraph (B); (ii)contains— (I)a determination of the applicable agency regarding whether to continue in effect, modify, or repeal the energy rule; and (II)an explanation of the determination; and (iii)if the applicable agency determines to modify or repeal the energy rule, a notice of proposed rulemaking under section 553 of title 5, United States Code, as applicable. (2)

Determinations

(A)

In general

Not later than the deadline applicable to an energy rule under the final schedule under subsection (b)(2), the head of the applicable agency shall make a determination— (i)to continue the energy rule in effect; (ii)to modify the energy rule; or (iii)to repeal the energy rule. (B)

Continuing in effect

A determination by the head of an applicable agency under subparagraph (A)(i) to continue an energy rule in effect— (i)shall be published in the Federal Register; and (ii)shall be considered to be a final agency action effective beginning on the date that is 60 days after the date of publication of the determination. (C)

Modification or repeal

On a determination by the head of an applicable agency to modify or repeal an energy rule under clause (ii) or (iii) of subparagraph (A), the applicable agency shall complete final agency action with respect to the modification or repeal by not later than 2 years after the deadline applicable to the energy rule under the final schedule under subsection (b)(2). (d)

Judicial review

(1)

In general

No preliminary or final schedule under this section shall be subject to judicial review. (2)

Determination to continue in effect

(A)

Definition of reasonable alternative

(i)

In general

In this paragraph, the term reasonable alternative, with respect to an option at a point in the regulatory process, means an option that— (I)would achieve the purpose of the applicable rule; and (II)the head of the applicable Federal agency has the authority to elect. (ii)

Inclusion

The term reasonable alternative includes a flexible regulatory option. (B)

Action by court

A court of competent jurisdiction may remand a determination to continue an energy rule in effect under subsection (c)(2)(B) only on clear and convincing evidence that a reasonable alternative was available to the energy rule. (3)

Failure to act

A failure of the head of an applicable agency to carry out an action required under this section shall be subject to judicial review only as provided in section 706(1) of title 5, United States Code. (e)

Effect of section

(1)

In general

Nothing in this section limits the discretion of an applicable agency, on making a determination described in clause (ii) or (iii) of subsection (c)(2)(A), to elect not to modify or repeal the applicable energy rule. (2)

Treatment

An election of an applicable agency described in paragraph (1) shall be considered to be a final agency action for purposes of judicial review.

574.

Prospective consideration of energy rules

(a)

Determination

(1)

In general

In promulgating any rule, the head of an applicable agency shall determine whether the rule is an energy rule. (2)

Treatment

The head of an applicable agency may determine under paragraph (1) that a set of related rules proposed to be promulgated by the applicable agency shall be considered to be an energy rule. (b)

Regulatory impact analysis

(1)

In general

In promulgating an energy rule, the head of an applicable agency shall prepare— (A)by not later than the date that is 60 days before the date of publication of notice of the proposed rulemaking, a preliminary regulatory impact analysis relating to the energy rule; and (B)a final regulatory impact analysis relating to the energy rule, which shall be submitted together with the final energy rule by not later than the date that is 30 days before the date of publication of the final energy rule. (2)

Contents

A preliminary or final regulator impact analysis relating to an energy rule under paragraph (1) shall contain— (A)a description of the potential benefits of the energy rule, including a description of— (i)any beneficial effects that cannot be quantified in monetary terms; and (ii)an identification of individuals and entities likely to receive the benefits; (B)an explanation of the necessity, legal authority, and reasonableness of the energy rule together with a description of the condition that the energy rule is intended to address; (C)a description of the potential costs of the energy rule, including a description of— (i)any costs that cannot be quantified in monetary terms; and (ii)an identification of the individuals and entities likely to bear the costs; (D)(i)an analysis of any alternative approach, including market-based mechanisms, that could substantially achieve the regulatory goal of the energy rule at a lower cost; and (ii)an explanation of the reasons why the alternative approach was not adopted, together with a demonstration that the energy rule provides the least-costly approach with respect to the regulatory goal; (E)(i)an analysis of the benefits and costs of the energy rule to the national energy supply and national energy security; and (ii)an explanation in any case in which the energy rule will cause undue harm to the energy stability of any region; (F)a statement that, as applicable— (i)the energy rule does not conflict with, or duplicate, any other rule; or (ii)describes the reasons why such a conflict or duplication exists; and (G)a statement that describes whether the energy rule will require— (i)any onsite inspection; or (ii)any individual or entity— (I)to maintain records that will be subject to inspection; or (II)to obtain any license, permit, or other certification, including a description of any associated fees or fines. (3)

Combination with flexibility analysis

An energy rule regulatory impact analysis under paragraph (1) may be prepared together with the regulatory flexibility analysis relating to the energy rule under sections 603 and 604 of title 5, United States Code. (c)

Review of regulatory impact analyses

(1)

In general

The head of an applicable agency shall review, and prepare comments regarding— (A)each notice of proposed rulemaking relating to an energy rule of the applicable agency; (B)each preliminary and final regulatory impact analysis relating to an energy rule of the applicable agency under this section; and (C)each final energy rule of the applicable agency. (2)

Consultation

On receipt of a request of a head of an applicable agency, any officer or employee of another applicable agency shall consult with the head regarding a review under paragraph (1). (3)

Requirement

The head of an applicable agency shall not promulgate an energy rule until the date on which the final regulatory impact analysis relating to the energy rule is published in the Federal Register. (4)

Review of other applicable agencies

(A)

In general

On receipt of a request of a head of an applicable agency, another applicable agency— (i)shall permit the head to review, and prepare comments regarding— (I)a notice of proposed rulemaking relating to an energy rule of the applicable agency; or (II)a preliminary or final regulatory impact analysis relating to an energy rule of the applicable agency under this section; and (ii)shall not publish the notice of proposed rulemaking or preliminary or final regulatory impact analysis until the earlier of— (I)the date on which— (aa)the head completes the review; and (bb)the applicable agency submits to the head a response to any comments of the head and includes in the comments of the applicable agency the response, in accordance with subparagraph (B)(ii); and (II)the expiration of the deadline described in subparagraph (B)(i). (B)

Deadlines

(i)

Review and comment by head

A head of an applicable agency shall complete a review of a notice of proposed rulemaking or preliminary or final regulatory impact analysis of another applicable agency under subparagraph (A) by not later than 90 days after the date on which the head submits a request for the review. (ii)

Response by applicable agency

An applicable agency shall submit to the head of another applicable agency that conducted a review and submitted comments regarding an energy rule under subparagraph (A) a response to those comments by not later than 90 days after the date on which the comments are received. (d)

Plain language requirement

The head of an applicable agency shall ensure, to the maximum extent practicable, that each energy rule and each regulatory impact analysis relating to an energy rule— (1)is written in plain language; and (2)provides adequate notice of the requirements of the rule to affected individuals and entities. (e)

Nonapplicability to certain rules and agencies

(1)

Definition of emergency situation

In this subsection, the term emergency situation means a situation that— (A)is immediately impending and extraordinary in nature; or (B)demands attention due to a condition, circumstance, or practice that, if no action is taken, would be reasonably expected to cause— (i)death, serious illness, or severe injury to an individual; or (ii)substantial danger to private property or the environment. (2)

Nonapplicability

This section shall not apply to— (A)a major rule promulgated in response to an emergency situation, if a report describing the major rule and the emergency situation is submitted to the head of each affected applicable agency as soon as practicable after promulgation of the major rule; (B)a major rule proposed or promulgated in connection with the implementation of monetary policy or to ensure the safety and soundness of— (i)a federally-insured depository institution or an affiliate of such an institution; (ii)a credit union; or (iii)a government-sponsored housing enterprise regulated by the Office of Federal Housing Enterprise Oversight; (C)an action by an applicable agency that the head of the applicable agency certifies is limited to interpreting, implementing, or administering the internal revenue laws of the United States, including any regulation proposed or issued in connection with ensuring the collection of taxes from a subsidiary of a foreign company doing business in the United States; or (D)a major rule proposed or promulgated pursuant to section 553 of title 5, United States Code, in connection with imposing a trade sanction against any country that engages in illegal trade activities against the United States that are injurious to United States technology, jobs, pensions, or general economic well-being.

(b)

Report

Not later than 2 years after the date of enactment of this Act, the Director of the Office of Management and Budget shall submit to Congress a report that contains an analysis of— (1)rulemaking procedures of Federal departments and agencies; and (2)the impact of those procedures on— (A)the public; and (B)the regulatory process. (c)

Effective date

The amendments made by subsection (a) shall apply only to final rules of Federal departments and agencies the rulemaking process for which begins after the date of enactment of this Act. (d)

Other policies and goals

(1)

Declaration of policy

Section 101 of the National Environmental Policy Act of 1969 (42 U.S.C. 4331) is amended— (A)by redesignating subsection (c) as subsection (d); and (B)by inserting after subsection (b) the following:

(c)

Energy security

Congress recognizes that, because the production and consumption of energy has a profound impact on the environment, and the availability of affordable energy resources is essential to continued national security and economic security of the United States, it is the policy of the United States to ensure that— (1)each proposed Federal action should be analyzed with respect to the impact of the proposed Federal action on the energy security of the United States; and (2)an analysis under paragraph (1) should be taken into consideration in developing Federal plans, rules, programs, and actions.

(2)

Reports

Section 102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C. 4332(2)(C)) is amended— (A)by redesignating clauses (iii) through (v) as clauses (iv) through (vi), respectively; and (B)by inserting after clause (ii) the following:

(iii)the impact on the energy security of the United States in terms of the effects to the production, distribution, and consumption of energy of the proposal or Federal action;