[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 4815 Introduced in Senate (IS)]
<DOC>
117th CONGRESS
2d Session
S. 4815
To clarify regulatory certainty, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
September 12, 2022
Mrs. Capito (for herself, Mr. McConnell, Mr. Thune, Mr. Grassley, Mr.
Cramer, Mr. Inhofe, Mrs. Hyde-Smith, Mr. Cassidy, Mr. Hagerty, Mr.
Risch, Mrs. Fischer, Mr. Johnson, Mr. Braun, Mr. Graham, Mr. Blunt, Mr.
Barrasso, Mr. Sasse, Mr. Tillis, Mr. Toomey, Mr. Rounds, Ms. Ernst, Mr.
Wicker, Ms. Lummis, Mr. Crapo, Mr. Young, Mr. Cruz, Mr. Hoeven, Mr.
Moran, Mrs. Blackburn, Ms. Murkowski, Mr. Scott of Florida, Mr. Cotton,
Mr. Marshall, Mr. Burr, Mr. Daines, Mr. Shelby, Mr. Sullivan, Mr.
Tuberville, Mr. Rubio, Mr. Cornyn, Mr. Boozman, Mr. Kennedy, and Mr.
Scott of South Carolina) introduced the following bill; which was read
twice and referred to the Committee on Environment and Public Works
_______________________________________________________________________
A BILL
To clarify regulatory certainty, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Simplify Timelines and Assure
Regulatory Transparency Act'' or the ``START Act''.
SEC. 2. CODIFICATION OF NEPA REGULATIONS.
The revisions to the Code of Federal Regulations made pursuant to
the final rule of the Council on Environmental Quality titled ``Update
to the Regulations Implementing the Procedural Provisions of the
National Environmental Policy Act'' and published on July 16, 2020 (85
Fed. Reg. 43304), shall have the same force and effect of law as if
enacted by an Act of Congress.
SEC. 3. PROVIDING REGULATORY CERTAINTY UNDER THE FEDERAL WATER
POLLUTION CONTROL ACT.
(a) Waters of the United States.--The definitions of the term
``waters of the United States'' and the other terms defined in section
328.3 of title 33, Code of Federal Regulations (as in effect on January
1, 2021), are enacted into law.
(b) Codification of Section 401 Certification Rule.--The final rule
of the Environmental Protection Agency entitled ``Clean Water Act
Section 401 Certification Rule'' (85 Fed. Reg. 42210 (July 13, 2020))
is enacted into law.
(c) Codification of Nationwide Permits.--The Nationwide Permits
issued, reissued, or modified, as applicable, in the following final
rules of the Corps of Engineers are enacted into law:
(1) The final rule of the Corps of Engineers entitled
``Reissuance and Modification of Nationwide Permits'' (86 Fed.
Reg. 2744 (January 13, 2021)).
(2) The final rule of the Corps of Engineers entitled
``Reissuance and Modification of Nationwide Permits'' (86 Fed.
Reg. 73522 (December 27, 2021)).
(d) National Pollutant Discharge Elimination System.--Section
402(b)(1)(B) of the Federal Water Pollution Control Act (33 U.S.C.
1342(b)(1)(B)) is amended by striking ``five years'' and inserting ``10
years''.
SEC. 4. PROHIBITION ON USE OF SOCIAL COST OF GREENHOUSE GAS ESTIMATES
RAISING GASOLINE PRICES.
(a) In General.--In promulgating regulations, issuing guidance, or
taking any agency action (as defined in section 551 of title 5, United
States Code) relating to the social cost of greenhouse gases, no
Federal agency shall adopt or otherwise use any estimates for the
social cost of greenhouse gases that may raise gasoline prices, as
determined through a review by the Energy Information Administration.
(b) Inclusion.--The estimates referred to in subsection (a) include
the interim estimates in the document of the Interagency Working Group
on the Social Cost of Greenhouse Gases entitled ``Technical Support
Document: Social Cost of Carbon, Methane, and Nitrous Oxide Interim
Estimates under Executive Order 13990'' and dated February 2021.
SEC. 5. EXPEDITING PERMITTING AND REVIEW PROCESSES.
(a) Definitions.--In this section:
(1) Authorization.--The term ``authorization'' means any
license, permit, approval, finding, determination, or other
administrative decision issued by a Federal department or
agency that is required or authorized under Federal law in
order to site, construct, reconstruct, or commence operations
of an energy project, including any authorization described in
section 41001(3) of the FAST Act (42 U.S.C. 4370m(3)).
(2) Energy project.--The term ``energy project'' means any
project involving the exploration, development, production,
transportation, combustion, transmission, or distribution of an
energy resource or electricity for which--
(A) an authorization is required under a Federal
law other than the National Environmental Policy Act of
1969 (42 U.S.C. 4321 et seq.); and
(B)(i) the head of the lead agency has determined
that an environmental impact statement is required; or
(ii) the head of the lead agency has determined
that an environmental assessment is required, and the
project sponsor requests that the project be treated as
an energy project.
(3) Environmental impact statement.--The term
``environmental impact statement'' means the detailed statement
of environmental impacts required to be prepared under the
National Environmental Policy Act of 1969 (42 U.S.C. 4321 et
seq.).
(4) Environmental review and authorization process.--The
term ``environmental review and authorization process'' means--
(A) the process for preparing for an energy project
an environmental impact statement, environmental
assessment, categorical exclusion, or other document
prepared under the National Environmental Policy Act of
1969 (42 U.S.C. 4321 et seq.); and
(B) the completion of any authorization decision
required for an energy project under any Federal law
other than the National Environmental Policy Act of
1969 (42 U.S.C. 4321 et seq.).
(5) Lead agency.--The term ``lead agency'' means--
(A) the Department of Energy;
(B) the Department of the Interior;
(C) the Department of Agriculture;
(D) the Federal Energy Regulatory Commission;
(E) the Nuclear Regulatory Commission; or
(F) any other appropriate Federal agency, as
applicable, that may be responsible for navigating the
energy project through the environmental review and
authorization process.
(6) Project sponsor.--The term ``project sponsor'' means an
agency or other entity, including any private or public-private
entity, that seeks approval from a lead agency for an energy
project.
(b) Timely Authorizations for Energy Projects.--
(1) In general.--
(A) Deadline.--Except as provided in subparagraph
(C), all authorization decisions necessary for the
construction of an energy project shall be completed by
not later than 90 days after the date of the issuance
of a record of decision for the energy project by the
lead agency.
(B) Detail.--The final environmental impact
statement for an energy project shall include an
adequate level of detail to inform decisions necessary
for the role of any Federal agency involved in the
environmental review and authorization process for the
energy project.
(C) Extension of deadline.--The head of a lead
agency may extend the deadline under subparagraph (A)
if--
(i) Federal law prohibits the lead agency
or another agency from issuing an approval or
permit within the period described in that
subparagraph;
(ii) the project sponsor requests that the
permit or approval follow a different timeline;
or
(iii) an extension would facilitate
completion of the environmental review and
authorization process of the energy project.
(2) Energy project schedule.--To the maximum extent
practicable and consistent with applicable Federal law, for an
energy project, the lead agency shall develop, in concurrence
with the project sponsor, a schedule for the energy project
that is consistent with a time period of not more than 2 years
for the completion of the environmental review and
authorization process for an energy project, as measured from,
as applicable--
(A) the date of publication of a notice of intent
to prepare an environmental impact statement to the
record of decision; or
(B) the date on which the head of the lead agency
determines that an environmental assessment is required
to a finding of no significant impact.
(3) Length of environmental impact statement.--
(A) In general.--Notwithstanding any other
provision of law and except as provided in subparagraph
(B), to the maximum extent practicable, the text of the
items described in paragraphs (4) through (6) of
section 1502.10(a) of title 40, Code of Federal
Regulations (or successor regulations), of an
environmental impact statement for an energy project
shall be 200 pages or fewer.
(B) Exemption.--The text referred to in
subparagraph (A) of an environmental impact statement
for an energy project may exceed 200 pages if the lead
agency establishes a new page limit for the
environmental impact statement for that energy project.
(c) Deadline for Filing Energy-Related Causes of Action.--
(1) Definitions.--In this subsection:
(A) Agency action.--The term ``agency action'' has
the meaning given the term in section 551 of title 5,
United States Code.
(B) Energy-related cause of action.--The term
``energy-related cause of action'' means a cause of
action that--
(i) is filed on or after the date of
enactment of this Act; and
(ii) seeks judicial review of a final
agency action to issue a permit, license, or
other form of agency permission for an energy
project.
(2) Deadline for filing.--
(A) In general.--Notwithstanding any other
provision of Federal law, an energy-related cause of
action shall be filed by--
(i) not later than 60 days after the date
of publication of the applicable final agency
action; or
(ii) if another Federal law provides for an
earlier deadline than the deadline described in
clause (i), the earlier deadline.
(B) Prohibition.--An energy-related cause of action
that is not filed within the applicable time period
described in subparagraph (A) shall be barred.
(d) Application of Categorical Exclusions for Energy Projects.--In
carrying out requirements under the National Environmental Policy Act
of 1969 (42 U.S.C. 4321 et seq.) for an energy project, a Federal
agency may use categorical exclusions designated under that Act in the
implementing regulations of any other agency, subject to the conditions
that--
(1) the agency makes a determination, in consultation with
the lead agency, that the categorical exclusion applies to the
energy project;
(2) the energy project satisfies the conditions for a
categorical exclusion under the National Environmental Policy
Act of 1969 (42 U.S.C. 4321 et seq.); and
(3) the use of the categorical exclusion does not otherwise
conflict with the implementing regulations of the agency,
except any list of the agency that designates categorical
exclusions.
SEC. 6. FRACTURING AUTHORITY WITHIN STATES.
(a) Definition of Federal Land.--In this section, the term
``Federal land'' means--
(1) public lands (as defined in section 103 of the Federal
Land Policy and Management Act of 1976 (43 U.S.C. 1702));
(2) National Forest System land;
(3) land under the jurisdiction of the Bureau of
Reclamation; and
(4) land under the jurisdiction of the Corps of Engineers.
(b) State Authority.--
(1) In general.--A State shall have the sole authority to
promulgate or enforce any regulation, guidance, or permit
requirement regarding the treatment of a well by the
application of fluids under pressure to which propping agents
may be added for the expressly designed purpose of initiating
or propagating fractures in a target geologic formation in
order to enhance production of oil, natural gas, or geothermal
production activities on or under any land within the
boundaries of the State.
(2) Federal land.--The treatment of a well by the
application of fluids under pressure to which propping agents
may be added for the expressly designed purpose of initiating
or propagating fractures in a target geologic formation in
order to enhance production of oil, natural gas, or geothermal
production activities on Federal land shall be subject to the
law of the State in which the land is located.
SEC. 7. FEDERAL LAND FREEDOM.
(a) Definitions.--In this section:
(1) Available federal land.--The term ``available Federal
land'' means any Federal land that, as of May 31, 2013--
(A) is located within the boundaries of a State;
(B) is not held by the United States in trust for
the benefit of a federally recognized Indian Tribe;
(C) is not a unit of the National Park System;
(D) is not a unit of the National Wildlife Refuge
System; and
(E) is not a congressionally designated wilderness
area.
(2) State.--The term ``State'' means--
(A) a State; and
(B) the District of Columbia.
(3) State leasing, permitting, and regulatory program.--The
term ``State leasing, permitting, and regulatory program''
means a program established pursuant to State law that
regulates the exploration and development of oil, natural gas,
and other forms of energy on land located in the State.
(b) State Control of Energy Development and Production on All
Available Federal Land.--
(1) State leasing, permitting, and regulatory programs.--
Any State that has established a State leasing, permitting, and
regulatory program may--
(A) submit to the Secretaries of the Interior,
Agriculture, and Energy a declaration that a State
leasing, permitting, and regulatory program has been
established or amended; and
(B) seek to transfer responsibility for leasing,
permitting, and regulating oil, natural gas, and other
forms of energy development from the Federal Government
to the State.
(2) State action authorized.--Notwithstanding any other
provision of law, on submission of a declaration under
paragraph (1)(A), the State submitting the declaration may
lease, permit, and regulate the exploration and development of
oil, natural gas, and other forms of energy on Federal land
located in the State in lieu of the Federal Government.
(3) Effect of state action.--Any action by a State to
lease, permit, or regulate the exploration and development of
oil, natural gas, and other forms of energy pursuant to
paragraph (2) shall not be subject to, or considered a Federal
action, Federal permit, or Federal license under--
(A) subchapter II of chapter 5, and chapter 7, of
title 5, United States Code (commonly known as the
``Administrative Procedure Act'');
(B) division A of subtitle III of title 54, United
States Code;
(C) the Endangered Species Act of 1973 (16 U.S.C.
1531 et seq.); or
(D) the National Environmental Policy Act of 1969
(42 U.S.C. 4321 et seq.).
(c) No Effect on Federal Revenues.--
(1) In general.--Any lease or permit issued by a State
pursuant to subsection (b) shall include provisions for the
collection of royalties or other revenues in an amount equal to
the amount of royalties or revenues that would have been
collected if the lease or permit had been issued by the Federal
Government.
(2) Disposition of revenues.--Any revenues collected by a
State from leasing or permitting on Federal land pursuant to
subsection (b) shall be deposited in the same Federal account
in which the revenues would have been deposited if the lease or
permit had been issued by the Federal Government.
(3) Effect on state processing fees.--Nothing in this
section prohibits a State from collecting and retaining a fee
from an applicant to cover the administrative costs of
processing an application for a lease or permit.
SEC. 8. EXPEDITING COMPLETION OF THE MOUNTAIN VALLEY PIPELINE.
(a) Definition of Mountain Valley Pipeline.--In this section, the
term ``Mountain Valley Pipeline'' means the Mountain Valley Pipeline
project, as generally described and approved in Federal Energy
Regulatory Commission Docket Nos. CP16-10 and CP19-477.
(b) Expedited Approval.--Notwithstanding any other provision of
law, not later than 21 days after the date of enactment of this Act and
for the purpose of facilitating the completion of the Mountain Valley
Pipeline--
(1) the Secretary of the Army shall issue all permits or
verifications necessary--
(A) to complete the construction of the Mountain
Valley Pipeline across the waters of the United States;
and
(B) to allow for the operation and maintenance of
the Mountain Valley Pipeline;
(2) the Secretary of Agriculture shall amend the Land and
Resource Management Plan for the Jefferson National Forest in a
manner that is substantively identical to the record of
decision with respect to the Mountain Valley Pipeline issued on
January 11, 2021; and
(3) the Secretary of the Interior shall--
(A) reissue the biological opinion and incidental
take statement for the Mountain Valley Pipeline in a
manner that is substantively identical to the
biological opinion and incidental take statement
previously issued on September 4, 2020; and
(B) grant all necessary rights-of-way and temporary
use permits in a manner that is substantively identical
to those permits approved in the record of decision
with respect to the Mountain Valley Pipeline issued on
January 14, 2021.
(c) Judicial Review.--No action taken by the Secretary of the Army,
the Federal Energy Regulatory Commission, the Secretary of Agriculture,
or the Secretary of the Interior that grants an authorization, permit,
verification, biological opinion, incidental take statement, or any
other approval related to the Mountain Valley Pipeline, including the
issuance of any authorization, permit, verification, authorization,
biological opinion, incidental take statement, or other approval
described in subsection (b), shall be subject to judicial review.
(d) Effect.--This section preempts any statute (including any other
section of this Act), regulation, judicial decision, or agency guidance
that is inconsistent with the issuance of any authorization, permit,
verification, authorization, biological opinion, incidental take
statement, or other approval described in subsection (b).
SEC. 9. FASTER PROJECT CONSULTATION.
Section 7(b)(1) of the Endangered Species Act of 1973 (16 U.S.C.
1536(b)(1)) is amended--
(1) in subparagraph (A), by striking ``90-day'' and
inserting ``60-day''; and
(2) in subparagraph (B)--
(A) in the matter preceding clause (i)--
(i) by striking ``90 days'' and inserting
``60 days''; and
(ii) by striking ``90th day'' and inserting
``60th day'';
(B) in clause (i), in the matter preceding
subclause (I), by striking ``150th day'' and inserting
``100th day''; and
(C) in clause (ii), by striking ``150 or more'' and
inserting ``100 or more''.
SEC. 10. NEW SOURCE REVIEW PERMITTING.
(a) Clarification of Definition of a Modification for Emission Rate
Increases, Pollution Control, Efficiency, Safety, and Reliability
Projects.--Paragraph (4) of section 111(a) of the Clean Air Act (42
U.S.C. 7411(a)) is amended--
(1) by inserting ``(A)'' before ``The term'';
(2) by inserting before the period at the end the
following: ``. For purposes of the preceding sentence, a change
increases the amount of any air pollutant emitted by such
source only if the maximum hourly emission rate of an air
pollutant that is achievable by such source after the change is
higher than the maximum hourly emission rate of such air
pollutant that was achievable by such source during any hour in
the 10-year period immediately preceding the change''; and
(3) by adding at the end the following:
``(B) Notwithstanding subparagraph (A), the term
`modification' does not include a change at a stationary source
that is designed--
``(i) to reduce the amount of any air pollutant
emitted by the source per unit of production; or
``(ii) to restore, maintain, or improve the
reliability of operations at, or the safety of, the
source,
except, with respect to either clause (i) or (ii), when the
change would be a modification as defined in subparagraph (A)
and the Administrator determines that the increase in the
maximum achievable hourly emission rate of a pollutant from
such change would cause an adverse effect on human health or
the environment.''.
(b) Clarification of Definition of Construction for Prevention of
Significant Deterioration.--Subparagraph (C) of section 169(2) of the
Clean Air Act (42 U.S.C. 7479(2)) is amended to read as follows:
``(C) The term `construction', when used in
connection with a major emitting facility, includes a
modification (as defined in section 111(a)) at such
facility, except that for purposes of this subparagraph
a modification does not include a change at a major
emitting facility that does not result in a significant
emissions increase, or a significant net emissions
increase, in annual actual emissions at such
facility.''.
(c) Clarification of Definition of Modifications and Modified for
Nonattainment Areas.--Paragraph (4) of section 171 of the Clean Air Act
(42 U.S.C. 7501) is amended to read as follows:
``(4) The terms `modifications' and `modified' mean a
modification as defined in section 111(a)(4), except that such
terms do not include a change at a major emitting facility that
does not result in a significant emissions increase, or a
significant net emissions increase, in annual actual emissions
at such facility.''.
(d) Rule of Construction.--Nothing in this section or the
amendments made by this section shall be construed to treat any change
as a modification for purposes of any provision of the Clean Air Act
(42 U.S.C. 7401 et seq.) if such change would not have been so treated
as of the day before the date of enactment of this Act.
SEC. 11. PROHIBITION ON RETROACTIVE PERMIT VETOES.
Section 404 of the Federal Water Pollution Control Act (33 U.S.C.
1344) is amended by striking subsection (c) and inserting the
following:
``(c) Authority of EPA Administrator.--
``(1) Possible prohibition of specification.--Until such
time as the Secretary has issued a permit under this section,
the Administrator may prohibit the specification (including the
withdrawal of specification) of any defined area as a disposal
site, and the Administrator may deny or restrict the use of any
defined area for specification (including the withdrawal of
specification) as a disposal site, whenever the Administrator
determines, after notice and opportunity for public hearings,
that the discharge of such materials into such area will have
an unacceptable adverse effect on municipal water supplies,
shellfish beds and fishery areas (including spawning and
breeding areas), wildlife, or recreational areas.
``(2) Consultation required.--Before making a determination
under paragraph (1), the Administrator shall consult with the
Secretary.
``(3) Written findings required.--The Administrator shall
set forth in writing and make public the findings and reasons
of the Administrator for making any determination under this
subsection.''.
SEC. 12. POLICY REVIEW UNDER THE CLEAN AIR ACT.
Section 309 of the Clean Air Act (42 U.S.C. 7609) is amended to
read as follows:
``SEC. 309. POLICY REVIEW.
``(a) Environmental Impact of Proposed Legislation.--
``(1) In general.--The Administrator shall review, and
comment in writing, on the environmental impact of any matter
relating to the duties and responsibilities granted to the
authority of the Administrator pursuant to this Act or any
other law contained in any legislation proposed by a Federal
department.
``(2) Publish.--A written comment referred to in paragraph
(1) shall be made public at the conclusion of any review
conducted under that paragraph.
``(b) Unsatisfactory Legislation.--In the event the Administrator
determines that any legislation reviewed under subsection (a)(1) is
unsatisfactory from the standpoint of public health, welfare, or
environmental quality, the Administrator shall publish the
determination of the Administrator and the matter shall be referred to
the Council on Environmental Quality.''.
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