[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 1399 Introduced in Senate (IS)]
<DOC>
118th CONGRESS
1st Session
S. 1399
To provide for American energy security by improving the permitting
process.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
May 2, 2023
Mr. Manchin introduced the following bill; which was read twice and
referred to the Committee on Energy and Natural Resources
_______________________________________________________________________
A BILL
To provide for American energy security by improving the permitting
process.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Building American
Energy Security Act of 2023''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title; table of contents.
TITLE I--ACCELERATING AGENCY REVIEWS
Sec. 101. Definitions.
Sec. 102. Streamlining process for authorizations and reviews of energy
and natural resources projects.
Sec. 103. Prioritizing energy projects of strategic national
importance.
Sec. 104. Empowering the Federal Permitting Improvement Steering
Council and improving reviews.
Sec. 105. Litigation transparency.
TITLE II--MODERNIZING PERMITTING LAWS
Sec. 201. Transmission.
Sec. 202. Definition of natural gas under the Natural Gas Act.
Sec. 203. Authorization of Mountain Valley Pipeline.
Sec. 204. Rights-of-way across Indian land.
Sec. 205. Federal Energy Regulatory Commission staffing.
TITLE I--ACCELERATING AGENCY REVIEWS
SEC. 101. DEFINITIONS.
In this title:
(1) Agency.--The term ``agency'' means any agency,
department, or other unit of Federal, State, local, or Tribal
government.
(2) Alaska native corporation.--The term ``Alaska Native
Corporation'' has the meaning given the term ``Native
Corporation'' in section 3 of the Alaska Native Claims
Settlement Act (43 U.S.C. 1602).
(3) Authorization.--The term ``authorization'' means any
license, permit, approval, finding, determination, interagency
consultation, or other administrative decision that is required
or authorized under Federal law (including regulations) to
design, plan, site, construct, reconstruct, or commence
operations of a project, including any authorization described
in section 41001(3) of the FAST Act (42 U.S.C. 4370m(3)).
(4) Cooperating agency.--The term ``cooperating agency''
means any Federal agency (and a State, Tribal, or local agency
if agreed on by the lead agency), other than a lead agency,
that has jurisdiction by law or special expertise with respect
to an environmental impact relating to a project.
(5) Environmental document.--The term ``environmental
document'' includes any of the following, as prepared under
NEPA:
(A) An environmental assessment.
(B) A finding of no significant impact.
(C) An environmental impact statement.
(D) A record of decision.
(6) Environmental impact statement.--The term
``environmental impact statement'' means the detailed statement
of environmental impacts of a project required to be prepared
under NEPA.
(7) Environmental review process.--The term ``environmental
review process'' means the process for preparing an
environmental impact statement, environmental assessment,
categorical exclusion, or other document required to be
prepared to achieve compliance with NEPA, including pre-
application consultation and scoping processes.
(8) Indian tribe.--The term ``Indian Tribe'' has the
meaning given the term in section 102 of the Federally
Recognized Indian Tribe List Act of 1994 (25 U.S.C. 5130).
(9) Lead agency.--The term ``lead agency'', with respect to
a project, means--
(A) the Federal agency preparing, or assuming
primary responsibility for, the authorization or review
of the project; and
(B) if applicable, any State, local, or Tribal
government entity serving as a joint lead agency for
the project.
(10) NEPA.--The term ``NEPA'' means the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.)
(including NEPA implementing regulations).
(11) NEPA implementing regulations.--The term ``NEPA
implementing regulations'' means the regulations in subpart A
of chapter V of title 40, Code of Federal Regulations (or
successor regulations).
(12) Participating agency.--The term ``participating
agency'' means an agency participating in an environmental
review or authorization for a project.
(13) Project sponsor.--The term ``project sponsor'' means
an entity, including any private, public, or public-private
entity, seeking an authorization for a project.
SEC. 102. STREAMLINING PROCESS FOR AUTHORIZATIONS AND REVIEWS OF ENERGY
AND NATURAL RESOURCES PROJECTS.
(a) Definitions.--In this section:
(1) Categorical exclusion.--The term ``categorical
exclusion'' means a categorical exclusion within the meaning of
NEPA.
(2) Major project.--The term ``major project'' means a
project--
(A) for which multiple authorizations, reviews, or
studies are required under a Federal law other than
NEPA; and
(B) with respect to which the head of the lead
agency has determined that--
(i) an environmental impact statement is
required; or
(ii) an environmental assessment is
required, and the project sponsor requests that
the project be treated as a major project.
(3) Project.--The term ``project'' means a project--
(A) proposed for the construction of
infrastructure--
(i) to develop, produce, generate, store,
transport, or distribute energy;
(ii) to capture, remove, transport, or
store carbon dioxide; or
(iii) to mine, extract, beneficiate, or
process minerals; and
(B) that, if implemented as proposed by the project
sponsor, would be subject to the requirements that--
(i) an environmental document be prepared;
and
(ii) the applicable agency issue an
authorization of the activity.
(4) Secretary concerned.--The term ``Secretary concerned''
means, as appropriate--
(A) the Secretary of Agriculture, with respect to
the Forest Service;
(B) the Secretary of Energy;
(C) the Secretary of the Interior;
(D) the Federal Energy Regulatory Commission;
(E) the Secretary of the Army, with respect to the
Corps of Engineers; and
(F) the Secretary of Transportation, with respect
to the Maritime Administration and the Pipeline and
Hazardous Materials Safety Administration.
(b) Applicability.--
(1) In general.--The project development procedures under
this section--
(A) shall apply to--
(i) all projects for which an environmental
impact statement is prepared;
(ii) all major projects; and
(iii) to the maximum extent practicable,
projects described in clause (i) or (ii) for
which an authorization is being sought or that
are subject to an environmental review process
initiated prior to the date of enactment of
this Act;
(B) may be applied, as requested by a project
sponsor and to the extent determined appropriate by the
Secretary concerned, to other projects for which an
environmental document is prepared; and
(C) shall not apply to--
(i) any project subject to section 139 of
title 23, United States Code;
(ii) any project that is a water resources
development project of the Corps of Engineers;
or
(iii) any authorization of the Corps of
Engineers if that authorization is for a
project that alters or modifies a water
resources development project of the Corps of
Engineers.
(2) Flexibility.--Any authority provided by this section
may be exercised, and any requirement established under this
section may be satisfied, for a project, class of projects, or
program of projects.
(3) Savings provision.--Nothing in this section--
(A) precludes the use of an authority provided
under any other provision of law, including for a
covered project under title XLI of the FAST Act (42
U.S.C. 4370m et seq.);
(B) supersedes or modifies any applicable
requirement, authority, or agency responsibility
provided under the National Environmental Policy Act of
1969 (42 U.S.C. 4321 et seq.) or any other provision of
law; or
(C) shall be considered an abbreviated
authorization or environmental review process for
purposes of section 41001(6)(A)(i)(III) of the FAST Act
(42 U.S.C. 4370m(6)(A)(i)(III)).
(c) Lead Agencies.--
(1) Joint lead agencies.--Nothing in this section precludes
an agency from serving as a joint lead agency for a project, in
accordance with NEPA.
(2) Roles and responsibilities.--With respect to the
environmental review process for a project, the lead agency
shall have the authority and responsibility--
(A) to take such actions as are necessary and
appropriate to facilitate the expeditious resolution of
the environmental review process for the project;
(B) to prepare any required environmental impact
statement or other environmental document, or to ensure
that such an environmental impact statement or
environmental document is completed, in accordance with
this section and applicable Federal law;
(C) not later than 45 days after the date of
publication of a notice of intent to prepare an
environmental impact statement, or the initiation of an
environmental assessment, as applicable, for a
project--
(i) to identify any other agencies that may
have financing, environmental review,
authorization, or other responsibilities with
respect to the project;
(ii) to invite the identified agencies to
become participating agencies in the
environmental review process for the project;
and
(iii) to establish, as part of the
invitation, a deadline for the submission of a
response, which may be extended by the lead
agency for good cause;
(D) to consider and respond to comments timely
received from participating agencies relating to
matters within the special expertise or jurisdiction of
those agencies;
(E) to consider, and, as appropriate, rely on,
adopt, or incorporate by reference, baseline data,
analyses, and documentation that have been prepared for
the project under the laws and procedures of a State or
an Indian Tribe if the lead agency determines that--
(i) those laws and procedures are of equal
or greater rigor, as compared to each
applicable Federal law and procedure; and
(ii) the baseline data, analysis, or
documentation, as applicable, was prepared
under circumstances that allowed for--
(I) opportunities for public
participation;
(II) consideration of alternatives
and environmental consequences; and
(III) other required analyses that
are substantially equivalent to the
analyses that would have been prepared
if the baseline data, analysis, or
documentation was prepared by the lead
agency pursuant to NEPA; and
(F)(i) to ensure that the project sponsor complies
with design and mitigation commitments for the project
made jointly by the lead agency and the project
sponsor; and
(ii) to ensure that environmental documents are
appropriately supplemented if changes become necessary
with respect to the project.
(d) Participating Agencies.--
(1) Applicability.--
(A) Inapplicability to covered projects.--The
procedures under this subsection shall not apply to a
covered project (as defined in section 41001 of the
FAST Act (42 U.S.C. 4370m))--
(i) for which a project initiation notice
has been submitted pursuant to section 41003(a)
of that Act (42 U.S.C. 4370m-2(a)); and
(ii) that is carried out in accordance with
the procedures described in that notice.
(B) Designations for categories of projects.--The
Secretary concerned may exercise the authority under
this subsection with respect to--
(i) a project;
(ii) a class of projects; or
(iii) a program of projects.
(2) Federal participating agencies.--Any Federal agency
that is invited by a lead agency to participate in the
environmental review process for a project shall be designated
as a participating agency by the lead agency, unless the
invited agency informs the lead agency, in writing, by the
deadline specified in the invitation, that the invited agency
has no responsibility for or interest in the project.
(3) Federal cooperating agencies.--A Federal agency that
has not been invited by a lead agency to participate in the
environmental review process for a project, but that is
required to make an authorization or carry out an action for a
project, shall--
(A) notify the lead agency of the financing,
environmental review, authorization, or other
responsibilities of the notifying Federal agency with
respect to the project; and
(B) work with the lead agency to ensure that the
agency making the authorization or carrying out the
action is treated as a cooperating agency for the
project.
(4) Responsibilities.--A participating agency participating
in the environmental review process for a project shall--
(A) provide comments, responses, studies, or
methodologies relating to the areas within the special
expertise or jurisdiction of the agency; and
(B) use the environmental review process to address
any environmental issues of concern to the agency.
(5) Effect of designation.--
(A) Requirement.--A participating agency for a
project shall comply with the applicable requirements
of this section.
(B) No implication.--Designation as a participating
agency under this subsection shall not imply that the
participating agency--
(i) has made a determination to support or
deny any project; or
(ii) has any jurisdiction over, or special
expertise with respect to evaluation of, the
applicable project.
(6) Cooperating agency designation.--Any agency designated
as a cooperating agency shall also be designated by the
applicable lead agency as a participating agency under the NEPA
implementing regulations.
(e) Coordination of Required Reviews; Environmental Documents.--
(1) In general.--The lead agency and each participating
agency for a project shall apply the requirements of section
41005 of the FAST Act (42 U.S.C. 4370m-4) to the project,
subject to the condition that any reference contained in that
section to a ``covered project'' shall be considered to be a
reference to the project under this section.
(2) Single environmental document.--
(A) In general.--Except as provided in subparagraph
(C), to the maximum extent practicable and consistent
with Federal law, to achieve compliance with NEPA, all
Federal authorizations and reviews that are necessary
for a project shall rely on a single environmental
document for each type of environmental document
prepared under NEPA under the leadership of the lead
agency.
(B) Use of document.--
(i) In general.--To the maximum extent
practicable, the lead agency shall develop
environmental documents sufficient to satisfy
the NEPA requirements for any authorization or
other Federal action required for the project.
(ii) Cooperation of participating
agencies.--Each participating agency shall
cooperate with the lead agency and provide
timely information to assist the lead agency to
carry out subparagraph (A).
(C) Exceptions.--A lead agency may waive the
application of subparagraph (A) with respect to a
project if--
(i) the project sponsor requests that
agencies issue separate environmental
documents;
(ii) the obligations of a cooperating
agency or participating agency under NEPA have
already been satisfied with respect to the
project; or
(iii) the lead agency determines, and
provides justification in the coordination plan
established under subsection (g)(1), that
multiple environmental documents are more
efficient for the environmental review process
or authorization process for the project.
(D) Page limits.--
(i) In general.--Notwithstanding any other
provision of law and except as provided in
clause (ii), 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 a project shall be not more than
150 pages.
(ii) Exceptions.--The text described in
clause (i)--
(I) shall be not more than 300
pages in the case of a proposal of
unusual scope or complexity; and
(II) may exceed 300 pages if the
lead agency establishes a new page
limit for the environmental impact
statement for that project.
(f) Errata for Environmental Impact Statements.--
(1) In general.--In preparing a final environmental impact
statement for a project, if the lead agency modifies the draft
environmental impact statement in response to comments, the
lead agency may write on errata sheets attached to the
environmental impact statement in lieu of rewriting the draft
environmental impact statement, subject to the conditions
described in paragraph (2).
(2) Conditions.--The conditions referred to in paragraph
(1) are as follows:
(A) The comments to which the applicable
modification responds shall be minor.
(B) The modifications shall be confined to--
(i) minor factual corrections; or
(ii) an explanation of the reasons why the
comments do not warrant additional response
from the lead agency.
(C) The errata sheets shall--
(i) cite the sources, authorities, and
reasons that support the position of the lead
agency; and
(ii) if appropriate, indicate the
circumstances that would trigger reappraisal or
further response by the lead agency.
(3) Savings provision.--Nothing in this subsection
precludes a lead agency from responding to comments in a final
environmental impact statement in accordance with procedures
described in section 1503.4(c) of the NEPA implementing
regulations.
(g) Coordination and Scheduling.--
(1) Coordination plan.--
(A) In general.--Except as provided in subparagraph
(B), not later than 90 days after the date of
publication of a notice of intent to prepare an
environmental impact statement, or the initiation of an
environmental assessment, as applicable, for a project,
the lead agency shall establish a plan for coordinating
public and agency participation in, and comment
regarding, the environmental review process and
authorization decisions for the project or applicable
category of projects (referred to in this paragraph as
the ``coordination plan'').
(B) Other date.--If the project sponsor requests
the establishment of a coordination plan for a project
by a date earlier than the deadline described in
subparagraph (A), the lead agency shall establish the
coordination plan not later than 90 days after the
request is received by the head of the lead agency.
(C) Incorporation into memorandum.--A coordination
plan may be incorporated into a memorandum of
understanding with the project sponsor, lead agency,
and any other appropriate entity to accomplish the
coordination activities described in this subsection.
(D) Schedule.--
(i) In general.--As part of a coordination
plan for a project, the lead agency shall
establish and maintain a schedule for
completion of the environmental review process
and authorization decisions for the project
that--
(I) includes the date of project
initiation or earliest Federal agency
contact for the project, including any
pre-application consultation;
(II) includes any programmatic
environmental document or agreement
that is a prerequisite or predecessor
for the environmental review process
for the project;
(III) includes--
(aa) any Federal
authorization, action required
as part of the environmental
review process, consultation,
or similar process that is
required through project
completion;
(bb) to the maximum extent
practicable, any Indian Tribe,
Alaska Native Corporation,
State, or local agency
authorization, review,
consultation, or similar
process; and
(cc) a schedule for each
authorization under item (aa)
or (bb), including any pre-
application consultations,
applications, interim
milestones, public comment
periods, draft decisions, final
decisions, and final
authorizations necessary to
begin construction; and
(IV) is established--
(aa) after consultation
with, and the concurrence of,
each participating agency for
the project; and
(bb) with the participation
of the project sponsor.
(ii) Major project schedules.--To the
maximum extent practicable and consistent with
applicable Federal law, in the case of a major
project, the lead agency shall develop, with
the concurrence of each participating agency
for the major project and in consultation with
the project sponsor, a schedule for the major
project that is consistent with completing--
(I) the environmental review
process--
(aa) in the case of major
projects for which the lead
agency determines an
environmental impact statement
is required, not later than 2
years after the date of
publication by the lead agency
of a notice of intent to
prepare an environmental impact
statement to the record of
decision; and
(bb) in the case of major
projects for which the lead
agency determines an
environmental assessment is
required, not later than 1 year
after the date on which the
head of the lead agency
determines that an
environmental assessment is
required to a finding of no
significant impact; and
(II) any outstanding authorization
required for project construction not
later than 150 days after the date of
an issuance of a record of decision or
a finding of no significant impact
under subclause (I).
(E) Factors for consideration.--In establishing a
schedule under subparagraph (D), a Federal lead agency
shall consider factors such as--
(i) the responsibilities of participating
agencies or cooperating agencies under
applicable law;
(ii) resources available to the
participating agencies or cooperating agencies;
(iii) the overall size and complexity of
the project;
(iv) the overall time required by an agency
to conduct the environmental review process and
make decisions under applicable Federal law
relating to a project (including the issuance
or denial of a permit or license);
(v) the cost of the project;
(vi) the sensitivity of the natural and
historic resources that could be affected by
the project; and
(vii) timelines and deadlines established
in this section and other applicable law.
(F) Modifications.--
(i) In general.--Except as provided in
clause (iii), the lead agency may lengthen--
(I) a schedule established for a
project under subparagraph (D) for good
cause, in accordance with clause (ii);
or
(II) shorten a schedule established
for a project under subparagraph (D) if
the lead agency has--
(aa) good cause; and
(bb) the concurrence of the
project sponsor and any
participating agencies.
(ii) Good cause.--Good cause to lengthen a
schedule under clause (i)(I) may include--
(I) Federal law prohibiting the
lead agency or another agency from
issuing an approval or permit within
the period required under subparagraph
(D);
(II) a request from the project
sponsor that the permit or approval
follow a different timeline; or
(III) a determination by the lead
agency, with the concurrence of the
project sponsor, that an extension
would facilitate completion of the
environmental review process and
authorization process of the project.
(iii) Exceptions.--
(I) Shortening of time period.--A
lead agency may not shorten a schedule
under clause (i)(II) if shortening the
schedule would impair the ability of a
participating agency--
(aa) to conduct any
necessary analysis; or
(bb) to otherwise carry out
any relevant obligation of the
participating agency for the
project.
(II) Major projects.--In the case
of a major project, the lead agency may
lengthen a schedule for a project under
subparagraph (D) for a Federal
participating agency by not more than 1
year after the latest deadline
established for the major project by
the lead agency.
(III) Coordination plans prior to
notice of intent.--In the case of a
schedule established for a project
under subparagraph (D) prior to the
publication of a notice of intent, the
lead agency may adjust the schedule,
with the concurrence of participating
agencies and the participation of the
project sponsor, until the date of
publication of the notice of intent.
(G) Failure to meet schedule or deadline.--If a
participating Federal agency fails to meet a schedule
or deadline established under subparagraph (D), not
later than 30 days after the missed schedule or
deadline, the participating Federal agency shall--
(i) notify--
(I) the Director of the Office of
Management and Budget;
(II) the Executive Director of the
Federal Permitting Improvement Steering
Council;
(III) the Secretary concerned;
(IV) the Committee on Energy and
Natural Resources of the Senate;
(V) the Committee on Environment
and Public Works of the Senate;
(VI) the Committee on Natural
Resources of the House of
Representatives; and
(VII) the Committee on Energy and
Commerce of the House of
Representatives; and
(ii) include in the notifications under
clause (i)--
(I) a description of the cause for
the failure; and
(II) a new schedule or deadline
agreed on by the project sponsor, the
lead agency, and cooperating agencies.
(H) Dissemination.--A copy of a schedule for a
project under subparagraph (D), and any modifications
to such a schedule, shall be--
(i) provided to--
(I) all participating agencies; and
(II) the project sponsor; and
(ii) in the case of a schedule for a major
project under that subparagraph, made available
to the public pursuant to subsection (l).
(I) No delay in decision making.--No agency shall
seek to encourage a sponsor of a project to withdraw or
resubmit an application to delay decision making within
the timelines under this subsection.
(2) Comment deadlines.--The lead agency shall establish the
following deadlines for comment during the environmental review
process for a project:
(A) For comments by agencies and the public on a
draft environmental impact statement, a period of not
more than 60 days after publication in the Federal
Register of a notice of the date of public availability
of the draft, 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, together with a
documented and publicly available explanation
of the need for an extended comment period.
(B) For all other comment periods established by
the lead agency for agency or public comment for a
Federal authorization or in the environmental review
process, a period of not more than 45 days beginning on
the first date of availability of the materials
regarding which comment is requested, unless a
different deadline of not more than 60 days is
established by agreement of the lead agency and all
participating agencies, in consultation with the
project sponsor.
(3) Public involvement.--Nothing in this section--
(A) reduces any time period provided for--
(i) public comment in the environmental
review process; or
(ii) an authorization for a project under
applicable Federal law;
(B) creates a requirement for an additional public
comment opportunity in addition to any public comment
opportunity required for a project under applicable
Federal law; or
(C) creates a new requirement for public comment on
a project for which an environmental assessment is
being prepared.
(4) Categorical exclusions.--Nothing in this subsection
affects or creates new requirements for a project or activity
that is eligible for a categorical exclusion.
(5) Deadline enforcement.--
(A) Definition of applicable deadline.--In this
paragraph, the term ``applicable deadline'' means a
deadline--
(i) for the environmental review process
for a major project required under paragraph
(1)(D)(ii)(I);
(ii) for a decision on an authorization for
a major project required under paragraph
(1)(D)(ii)(II); or
(iii) described in clause (i) or (ii) that
has been modified under paragraph (1)(F).
(B) Petition to court.--A project sponsor may
obtain a review of an alleged failure by a Federal
agency, or a State agency acting pursuant to Federal
law, to act in accordance with an applicable deadline
under this section by filing a written petition with a
court of competent jurisdiction seeking an order under
subparagraph (C).
(C) Court order.--If a court of competent
jurisdiction finds that a Federal agency, or a State
agency acting pursuant to Federal law, has failed to
act in accordance with an applicable deadline, the
court shall set a schedule and deadline for the agency
to act as soon as practicable, which shall not exceed
90 days from the date on which the order of the court
is issued, unless the court determines a longer time
period is necessary to comply with applicable law.
(D) Jurisdiction.--The United States Court of
Appeals for the District of Columbia shall have
original jurisdiction over any civil action brought
pursuant to subparagraph (B), in addition to any court
of competent jurisdiction under any other Federal law.
(E) Expedited consideration.--A court of competent
jurisdiction shall set for expedited consideration any
action brought under this subsection.
(h) Issue Identification and Resolution.--
(1) Cooperation.--The lead agency and each participating
agency shall work cooperatively in accordance with this section
to facilitate the timely completion of the environmental review
and authorization process by identifying and resolving issues
that could--
(A) delay final decision making for any
authorization for a project;
(B) delay completion of the environmental review
process for a project; or
(C) result in the denial of any authorization
required for the project under applicable law.
(2) Accelerated issue resolution and referral.--
(A) In general.--A participating agency, project
sponsor, or the Governor of a State in which a project
is located may request an issue resolution meeting to
resolve issues relating to a project that could--
(i) delay final decision making for any
authorization for a project;
(ii) significantly delay completion of the
environmental review process for a project; or
(iii) result in the denial of any
authorization required for the project under
applicable law.
(B) Initial meeting.--Not later than 30 days after
the date of receipt of a request under subparagraph
(A), the lead agency shall convene an issue resolution
meeting, which shall include--
(i) the relevant participating agencies;
(ii) the project sponsor; and
(iii) the Governor of a State in which the
project is located, if the Governor requested
the issue resolution meeting under that
subparagraph.
(C) Elevation.--If issue resolution is not achieved
by 30 days after the date of the initial meeting under
subparagraph (B), the issue shall be elevated to the
head of the lead agency, who shall--
(i) notify--
(I) the heads of the relevant
participating agencies;
(II) the project sponsor; and
(III) the Governor of a State in
which the project is located, if the
Governor requested the issue resolution
meeting under subparagraph (A); and
(ii) convene a leadership issue resolution
meeting not later than 90 days after the date
of the initial meeting under subparagraph (B)
with--
(I) the heads of the relevant
participating agencies, including any
relevant Secretaries;
(II) the project sponsor; and
(III) the Governor of a State in
which the project is located, if the
Governor requested the issue resolution
meeting under subparagraph (A).
(D) Convention by lead agency.--A lead agency may
convene an issue resolution meeting at any time to
resolve issues relating to an authorization or
environmental review process for a project, without the
request of a participating agency, project sponsor, or
the Governor of a State in which the project is
located.
(E) Referral of issue resolution for major projects
to council on environmental quality.--
(i) In general.--If issue resolution for a
major project is not achieved by 30 days after
the date on which a leadership issue resolution
meeting is convened under subparagraph (C), the
head of the lead agency shall refer the matter
to the Council on Environmental Quality.
(ii) Meeting.--Not later than 30 days after
the date of receipt of a referral from the head
of the lead agency under clause (i), the
Council on Environmental Quality shall convene
an issue resolution meeting with--
(I) the head of the lead agency;
(II) the heads of relevant
participating agencies;
(III) the project sponsor; and
(IV) the Governor of a State in
which the major project is located, if
the Governor requested the issue
resolution meeting under subparagraph
(A).
(F) Consistency with other law.--An agency shall
implement the requirements of this paragraph--
(i) unless doing so would prevent the
compliance of the agency with existing law; and
(ii) consistent with, to the maximum extent
permitted by law, any dispute resolution
process established in an applicable law,
regulation, or legally binding agreement.
(G) Effect of paragraph.--Nothing in this paragraph
limits the application of section 41003 of the FAST Act
(42 U.S.C. 4370m-2) to a covered project (as defined in
section 41001 of that Act (42 U.S.C. 4370m)) that is a
project subject to the requirements of this section,
including with respect to dispute resolution procedures
regarding a permitting timetable.
(i) Enhanced Technical Assistance From Lead Agency.--
(1) Definition of covered project.--In this subsection, the
term ``covered project'' means a project--
(A) that has a pending environmental review or
authorization under NEPA; and
(B) for which the lead agency determines a delay to
the schedule established under subsection (g) is
likely.
(2) Technical assistance.--At the request of a project
sponsor, participating agency, or the Governor of a State in
which a covered project is located, the head of the lead agency
may provide technical assistance to resolve any outstanding
issues that are resulting in project delay for the covered
project, including by--
(A) providing additional staff, training, and
expertise;
(B) facilitating interagency coordination;
(C) promoting more efficient collaboration; and
(D) supplying specialized onsite assistance.
(3) Scope of work.--In providing technical assistance for a
covered project under this subsection, the head of the lead
agency shall establish a scope of work that describes the
actions that the head of the lead agency will take to resolve
the outstanding issues and project delays.
(4) Consultation.--In providing technical assistance for a
covered project under this subsection, the head of the lead
agency shall consult, if appropriate, with participating
agencies on all methods available to resolve any outstanding
issues and project delays for a covered project as
expeditiously as practicable.
(j) Judicial Review.--Except as provided in subsection (k), nothing
in this section affects the reviewability of any final Federal agency
action in a court of--
(1) the United States; or
(2) any State.
(k) Efficiency of Claims.--
(1) Statute of limitations.--Notwithstanding any other
provision of law, a claim arising under Federal law seeking
judicial review of an authorization issued or denied by a
Federal agency for a project shall be barred unless the claim
is filed by 150 days after the later of the date on which the
authorization is final in accordance with the law under which
the agency action is taken and the date of publication of a
notice that the environmental document is final in accordance
with NEPA, unless a shorter time is specified in the Federal
law pursuant to which judicial review is allowed.
(2) Expedited review.--A court of competent jurisdiction
shall set for expedited consideration any claim arising under
Federal law seeking judicial review of an authorization issued
or denied by a Federal agency, or a State agency acting
pursuant to Federal law, for a project.
(3) Remanded actions.--
(A) In general.--If a court of competent
jurisdiction remands a final Federal agency action for
a project to the Federal agency, the court shall set a
reasonable schedule and deadline for the agency to act
on remand, which shall not exceed 180 days from the
date on which the order of the court was issued, unless
a longer time period is necessary to comply with
applicable law.
(B) Expedited treatment of remanded actions.--The
head of the Federal agency to which a court remands a
final Federal agency action under subparagraph (A)
shall take such actions as may be necessary to provide
for the expeditious disposition of the action on remand
in accordance with the schedule and deadline set by the
court under that subparagraph.
(4) Random assignment of cases.--To the maximum extent
practicable, district courts of the United States and courts of
appeals of the United States shall randomly assign cases
seeking judicial review of any authorization issued by a
Federal agency for a project to judges appointed, designated,
or assigned to sit as judges of the court in a manner to avoid
the appearance of favoritism or bias.
(5) Effect of subsection.--Nothing in this subsection--
(A) establishes a right to judicial review; or
(B) places any limit on filing a claim that a
person has violated the terms of an authorization.
(6) Treatment of supplemental or revised environmental
documents.--With respect to a project--
(A) the preparation of a supplemental or revised
environmental document for the project, when required,
shall be considered to be a separate final agency
action for purposes of the deadline under subparagraph
(B); and
(B) the deadline for filing a claim for judicial
review of that action shall be the date that is 150
days after the date of publication of a notice in the
Federal Register announcing the final agency action,
unless a shorter time is specified in the Federal law
pursuant to which judicial review is authorized.
(l) Improving Transparency in Project Status.--
(1) In general.--Not later than 120 days after the date of
enactment of this Act, the Secretary concerned shall--
(A) use the searchable internet website maintained
under section 41003(b) of the FAST Act (42 U.S.C.
4370m-2(b)) to make publicly available--
(i) the status, schedule, and progress of
each major project, including a project for
which an authorization is being sought or that
is subject to an environmental review process
initiated prior to the date of enactment of
this Act, with respect to compliance with the
applicable requirements of NEPA, any
authorization, and any other Indian Tribe,
State, or local agency authorization required
for the major project; and
(ii) a list of the participating agencies
for each major project; and
(B) establish such reporting standards as are
necessary to meet the requirements of subparagraph (A),
which shall include requirements--
(i) to track major projects from initiation
through the date that final authorizations
required to begin construction are issued or
the major project is withdrawn; and
(ii) to update the status, schedule, and
progress of major projects to reflect any
changes to the project status or schedule,
including changes resulting from litigation
(including any injunctions, vacatur of
authorizations, and timelines for any
additional authorization or environmental
review process that is required as a result of
litigation).
(2) Federal, state, and local agency participation.--
(A) Federal agencies.--A Federal agency
participating in the environmental review process or
authorization process for a major project shall provide
to the Secretary concerned information relating to the
status and progress of the authorization of the major
project for publication on the internet website
referred to in paragraph (1)(A), consistent with the
standards established under paragraph (1)(B).
(B) State and local agencies.--The Secretary
concerned shall encourage State and local agencies
participating in the environmental review process or
authorization process for a major project to provide
information relating to the status and progress of the
authorization of the major project for publication on
the internet website referred to in paragraph (1)(A).
(m) Accountability and Reporting for Major Projects.--Each
Secretary concerned shall--
(1) not later than 1 year after the date of enactment of
this Act, establish a performance accountability system for the
agency represented by the Secretary concerned; and
(2) on establishment of the performance accountability
system under paragraph (1), and not less frequently than
annually thereafter, publish a report describing performance
accountability for each major project authorization and review
conducted during the preceding year by the agency represented
by the Secretary concerned, including--
(A) for each major project for which that agency
serves as a lead agency or a participating agency, the
extent to which the agency is achieving compliance with
each schedule established under this section for an
authorization, environmental review process, or
consultation;
(B) for each major project for which that agency
serves as a lead agency, information regarding the
average time required to complete each applicable
authorization and the environmental review process; and
(C) for each major project for which that agency
serves as a participating agency with jurisdiction over
an authorization, information regarding the average
time required to complete the authorization process.
(n) Programmatic Compliance.--
(1) In general.--The Secretary concerned shall allow for
the use of programmatic approaches to conduct environmental
reviews that--
(A) eliminate repetitive discussions of the same
issue;
(B) focus on the issues ripe for analysis at each
level of review; and
(C) are consistent with--
(i) NEPA; and
(ii) other applicable laws.
(2) Requirements.--In carrying out this subsection, each
lead agency shall ensure that programmatic approaches to
conduct environmental review processes--
(A) promote transparency, including the
transparency of--
(i) the analyses and data used in the
environmental review process;
(ii) the treatment of any deferred issues
raised by agencies or the public; and
(iii) the temporal and spatial scales to be
used to analyze issues under clauses (i) and
(ii);
(B) use accurate and timely information, including
through the establishment of--
(i) criteria for determining the general
duration of the usefulness of the environmental
review process; and
(ii) a timeline for updating any out-of-
date environmental review process;
(C) describe--
(i) the relationship between any
programmatic analysis and future tiered
analysis; and
(ii) the role of the public in the creation
of future tiered analyses;
(D) are available to other relevant Federal and
State agencies, Indian Tribes, Alaska Native
Corporations, and the public; and
(E) provide notice and public comment opportunities
consistent with applicable requirements.
(o) Development of Categorical Exclusions.--
(1) In general.--Not later than 180 days after the date of
enactment of this Act, and not less frequently than once every
4 years thereafter, each Secretary concerned, in consultation
with the Chair of the Council on Environmental Quality, shall--
(A) in consultation with the other agencies
described in paragraph (2), as applicable, identify
each categorical exclusion available to such an agency
that would accelerate delivery of a project if the
categorical exclusion was available to the Secretary
concerned; and
(B) collect existing documentation and
substantiating information relating to each categorical
exclusion identified under subparagraph (A).
(2) Description of agencies.--The agencies referred to in
paragraph (1) are--
(A) the Department of Agriculture;
(B) the Department of the Army;
(C) the Department of Commerce;
(D) the Department of Defense;
(E) the Department of Energy;
(F) the Department of the Interior;
(G) the Federal Energy Regulatory Commission; and
(H) any other Federal agency that has participated
in an environmental review process for a project, as
determined by the Chair of the Council on Environmental
Quality.
(3) Adoption of categorical exclusions.--Not later than 1
year after the date on which categorical exclusions are
identified under paragraph (1)(A), each Secretary concerned
shall--
(A) determine whether any such categorical
exclusion meets the applicable criteria for a
categorical exclusion under--
(i) the NEPA implementing regulations; and
(ii) any relevant regulations of the agency
represented by the Secretary concerned; and
(B) publish a notice of proposed rulemaking to
propose the adoption of any identified categorical
exclusion that--
(i) is applicable to the agency represented
by the Secretary concerned; and
(ii) meets the applicable criteria
described in subparagraph (A).
(p) Additions to Categorical Exclusions.--
(1) In general.--Not later than 180 days after the date of
enactment of this Act, and not later than 5 years thereafter,
each Secretary concerned shall--
(A) conduct a survey regarding the use by the
agency represented by the Secretary concerned of
categorical exclusions for projects during the 5-year
period preceding the date of the survey;
(B) publish a review of the survey under
subparagraph (A) that includes a description of--
(i) the types of actions eligible for each
categorical exclusion covered by the survey;
and
(ii) any requests previously received by
the Secretary concerned for new categorical
exclusions; and
(C) solicit requests for new categorical
exclusions.
(2) New categorical exclusions.--Not later than 120 days
after the date of a solicitation of requests under paragraph
(1)(C), the Secretary concerned shall publish a notice of
proposed rulemaking to propose the adoption of any such new
categorical exclusions, to the extent that the categorical
exclusions meet the applicable criteria for a categorical
exclusions under--
(A) the NEPA implementing regulations; and
(B) any relevant regulations of the agency
represented by the Secretary concerned.
SEC. 103. PRIORITIZING ENERGY PROJECTS OF STRATEGIC NATIONAL
IMPORTANCE.
(a) Definitions.--In this section:
(1) Critical mineral.--The term ``critical mineral'' has
the meaning given the term in section 7002(a) of the Energy Act
of 2020 (30 U.S.C. 1606(a)).
(2) Designated project.--The term ``designated project''
means an energy project of strategic national importance
designated for priority Federal review under subsection (b).
(b) Designation of Projects.--
(1) In general.--Not later than 90 days after the date of
enactment of this Act, the President, in consultation with the
Secretary of Energy, the Secretary of the Interior, the
Administrator of the Environmental Protection Agency, the
Federal Energy Regulatory Commission, and the heads of any
other relevant Federal departments or agencies, as determined
by the President, shall--
(A) designate 25 energy projects of strategic
national importance for priority Federal review, in
accordance with this section; and
(B) publish a list of those designated projects in
the Federal Register.
(2) Updates.--Not later than 180 days after the date on
which the President publishes the list under paragraph (1)(B),
and every 180 days thereafter during the 10-year period
beginning on that date, the President shall publish an updated
list, which shall--
(A) include not less than 25 designated projects;
and
(B) include each previously designated project
until--
(i) a final decision has been issued for
each authorization for the designated project;
or
(ii) the project sponsor withdraws its
request for authorization.
(3) Project types; first 7 years.--During the 7-year period
beginning on the date on which the President publishes the list
under paragraph (1)(B), of the list of designated projects
maintained on an ongoing basis pursuant to this subsection, not
fewer than--
(A) 5 shall be projects for the mining, extraction,
beneficiation, or processing of critical minerals--
(i) of which not fewer than 3 shall include
new mining or extraction of critical minerals;
and
(ii) for which critical mineral production
may occur as a byproduct;
(B) 7 shall be projects--
(i) to generate electricity or store energy
without the use of fossil fuels; or
(ii) to manufacture clean energy equipment;
(C) 6 shall be projects to produce, process,
transport, or store fossil fuel products, or biofuels,
including projects to export or import those products
from nations described in subsection (c)(3)(A)(vi);
(D) 3 shall be electric transmission projects or
projects using grid-enhancing technology;
(E) 2 shall be projects to capture, transport, or
store carbon dioxide, which may include the utilization
of captured or displaced carbon dioxide emissions; and
(F) 2 shall be a project to produce, transport, or
store clean hydrogen, including projects to export or
import those products from nations described in
subsection (c)(3)(A)(vi).
(4) Project types; phase-down.--During the 3-year period
beginning 7 years after the date on which the President
publishes the list under paragraph (1)(B), of the list of
designated projects maintained on an ongoing basis pursuant to
this subsection, not fewer than--
(A) 2 shall be projects for the mining, extraction,
beneficiation, or processing of critical minerals;
(B) 3 shall be projects described in paragraph
(3)(B);
(C) 3 shall be projects described in paragraph
(3)(C);
(D) 1 shall be a project described in paragraph
(3)(D);
(E) 1 shall be a project described in paragraph
(3)(E); and
(F) 1 shall be a project described in paragraph
(3)(F).
(5) List of projects meeting each category threshold;
insufficient applications.--
(A) In general.--Subject to subparagraph (B),
during the 10-year period beginning on the date on
which the President publishes the list under paragraph
(1)(B), the President shall maintain a list of
designated projects that meet the minimum threshold for
the applicable category of projects under each
subparagraph of paragraph (3) or (4), as applicable.
(B) Insufficient applications.--If the number of
applications submitted that meet the requirements for a
designated project for a category of projects under a
subparagraph of paragraph (3) or (4), as applicable, is
not sufficient to meet the minimum threshold under that
subparagraph, the President shall designate the maximum
number of applications submitted that meet the
requirements for a designated project for the
applicable category until a sufficient number of
applications meeting the requirements for a designated
project for such category has been submitted.
(c) Selection and Priority Requirements.--
(1) In general.--The President shall carry out subsection
(b) based on a review of applications for authorizations or
other reviews submitted to the Corps of Engineers, the
Department of Defense, the Department of Energy, the Department
of the Interior, the Environmental Protection Agency, the
Forest Service, the Federal Energy Regulatory Commission, the
Nuclear Regulatory Commission, the Maritime Administration, the
Pipeline and Hazardous Materials Safety Administration, and the
Federal Permitting Improvement Steering Council.
(2) Requirement.--The President shall designate under
subsection (b) only projects that the President determines are
likely--
(A) to require an environmental assessment or
environmental impact statement under NEPA;
(B) to require review by more than 2 Federal or
State agencies;
(C) to have a total project cost of more than
$250,000,000; and
(D) to have sufficient financial support from the
project sponsor to ensure project completion.
(3) Priority.--
(A) In general.--In considering projects to
designate under subsection (b), the President shall
give priority to projects the completion of which will
significantly advance 1 or more of the following
objectives:
(i) Reducing energy prices in the United
States.
(ii) Reducing greenhouse gas emissions.
(iii) Improving electric reliability in
North America.
(iv) Advancing emerging energy
technologies.
(v) Improving the domestic supply chains
for, and manufacturing of, energy products,
energy equipment, and critical minerals.
(vi) Increasing energy trade between the
United States and--
(I) nations that are signatories to
free trade agreements with the United
States that cover the trade of energy
products;
(II) members of the North Atlantic
Treaty Organization;
(III) members of the Organization
for Economic Cooperation and
Development;
(IV) nations with a transmission
system operator that is included in the
European Network of Transmission System
Operators for Electricity, including as
an observer member; or
(V) any other country designated as
an ally or partner nation by the
President for purposes of this section.
(vii) Reducing the reliance of the United
States on the supply chains of foreign entities
of concern (as defined in section 40207(a) of
the Infrastructure Investment and Jobs Act (42
U.S.C. 18741(a))).
(viii) To the extent practicable,
minimizing development impacts through the use
of existing--
(I) rights-of-way;
(II) facilities; or
(III) other infrastructure.
(ix) Creating jobs--
(I) with wages at rates not less
than those prevailing on similar
projects in the locality, as determined
by the Secretary of Labor in accordance
with subchapter IV of chapter 31 of
title 40, United States Code (commonly
referred to as the ``Davis-Bacon
Act''); and
(II) with consideration of the
magnitude and timing of the direct and
indirect employment impacts of carrying
out the project.
(B) Other priority.--In considering projects to
designate for the category of projects described in
subsection (b)(3)(C), in addition to the priorities
specified in subparagraph (A), the President shall give
priority to projects the completion of which will
significantly reduce greenhouse gas emissions.
(d) Reviews of Designated Projects.--
(1) In general.--The President shall, in consultation with
the applicable department and agency heads, the Director of the
Office of Management and Budget, the Chair of the Council on
Environmental Quality, and the Federal Permitting Improvement
Steering Council, direct Federal agencies through executive
order to prioritize the completion of the environmental review
process and decisions on authorizations for designated
projects.
(2) Timelines.--To the maximum extent practicable and
consistent with applicable Federal law, the President shall
complete--
(A) the environmental review process--
(i) in the case of a designated project for
which the lead agency determines an
environmental impact statement is required, not
later than 2 years after the date of
publication by the lead agency of a notice of
intent to prepare an environmental impact
statement to the record of decision; and
(ii) in the case of a designated project
for which the lead agency determines an
environmental assessment is required, not later
than 1 year after the date on which the head of
the lead agency determines that an
environmental assessment is required to a
finding of no significant impact; and
(B) decisions on any outstanding authorization
required for project construction within 180 days of
the issuance of a record of decision or finding of no
significant impact under subparagraph (A).
(3) Streamlining review process.--A designated project
shall be considered a major project (as defined in section
102(a)) subject to the requirements of that section.
(e) NEPA.--
(1) In general.--Nothing in this section supersedes or
modifies any applicable requirement, authority, or agency
responsibility provided under NEPA.
(2) Designation of projects.--The act of designating a
project under subsections (b) and (c) shall not be subject to
the National Environmental Policy Act of 1969 (42 U.S.C. 4321
et seq.).
(f) Report.--Not later than 180 days after the date of enactment of
this Act, and every 90 days thereafter, the President shall submit to
the Committee on Energy and Natural Resources and the Committee on
Environment and Public Works of the Senate and the Committee on Energy
and Commerce and the Committee on Natural Resources of the House of
Representatives a report describing--
(1) each designated project and the basis for designating
that project pursuant to subsection (c);
(2) for each designated project, all outstanding
authorizations, environmental reviews, consultations, public
comment periods, or other Federal, State, or local reviews
required for project completion; and
(3) for each authorization, environmental review,
consultation, public comment period, or other review under
paragraph (2)--
(A) an estimated completion date; and
(B) an explanation of--
(i) any delays meeting the timelines
established in this section or in applicable
Federal, State, or local law; and
(ii) any changes to the date described in
subparagraph (A) from a report previously
submitted under this subsection.
(g) Funding.--
(1) In general.--Out of amounts appropriated under section
70007 of Public Law 117-169 to the Environmental Review
Improvement Fund established under section 41009(d)(1) of the
FAST Act (42 U.S.C. 4370m-8(d)(1)), $250,000,000 shall be used
to provide funding to agencies to support more efficient,
accurate, and timely reviews of designated projects in
accordance with paragraph (2).
(2) Use of funds.--The Federal Permitting Improvement
Steering Council shall prescribe the use of funds provided to
agencies under paragraph (1), which may include--
(A) the hiring and training of personnel;
(B) the development of programmatic documents;
(C) the procurement of technical or scientific
services for environmental reviews;
(D) the development of data or information systems;
(E) stakeholder and community engagement;
(F) the purchase of new equipment for analysis; and
(G) the development of geographic information
systems and other analytical tools, techniques, and
guidance to improve agency transparency,
accountability, and public engagement.
(3) Limitation.--Of the amounts made available under
paragraph (1) for a fiscal year, not more than $1,500,000 shall
be allocated to support the review of a single designated
project.
(4) Supplement not supplant.--Funds appropriated under this
subsection shall be used in addition to existing funding
mechanisms, including agency user fees and application fees.
SEC. 104. EMPOWERING THE FEDERAL PERMITTING IMPROVEMENT STEERING
COUNCIL AND IMPROVING REVIEWS.
(a) Definition of Covered Project.--Section 41001(6)(A) of the FAST
Act (42 U.S.C. 4370m(6)(A)) is amended--
(1) in the matter preceding clause (i), by inserting
``critical mineral mining, production, beneficiation, or
processing,'' before ``electricity transmission''; and
(2) in clause (i), by striking subclause (II) and inserting
the following:
``(II) is likely to require a total
investment of--
``(aa) more than $200,000,000; or
``(bb) in the case of a project for
the construction, production,
transportation, storage, or generation
of energy, more than $50,000,000;
and''.
(b) Transparency.--Section 41003(b)(2)(A)(iii) of the FAST Act (42
U.S.C. 4370m-2(b)(2)(A)(iii)) is amended by adding at the end the
following:
``(III) Outer continental shelf
lands act.--The Secretary of the
Interior shall create and maintain a
specific entry on the Dashboard for the
preparation and revision of the oil and
gas leasing program required under
section 18 of the Outer Continental
Shelf Lands Act (43 U.S.C. 1344).
``(IV) Additional energy
projects.--The Secretary of the
Interior or the Secretary of Energy, as
applicable, shall create and maintain a
specific entry on the Dashboard for any
project that is a designated project
(as defined in section 103(a) of the
Building American Energy Security Act
of 2023) for which a notice of
initiation under subsection (a)(1)(A)
has not been submitted, unless the
project is already included on the
Dashboard as a covered project.''.
SEC. 105. LITIGATION TRANSPARENCY.
(a) Definitions.--In this section:
(1) Covered civil action.--The term ``covered civil
action'' means a civil action--
(A) seeking to compel agency action affecting a
project, as defined under section 102 of this Act; and
(B) brought under--
(i) chapter 7 of title 5, United States
Code; or
(ii) any other statute authorizing such an
action.
(2) Covered consent decree.--The term ``covered consent
decree'' means a consent decree entered into in a covered civil
action.
(3) Covered consent decree or settlement agreement.--The
term ``covered consent decree or settlement agreement'' means a
covered consent decree and a covered settlement agreement.
(4) Covered settlement agreement.--The term ``covered
settlement agreement'' means a settlement agreement entered
into in a covered civil action.
(b) Transparency.--
(1) Pleadings and preliminary matters.--
(A) In general.--In any covered civil action, the
agency against which the covered civil action is
brought shall publish the notice of intent to sue and
the complaint in a readily accessible manner, including
by making the notice of intent to sue and the complaint
available online not later than 15 days after receiving
service of the notice of intent to sue or complaint,
respectively.
(B) Entry of a covered consent decree or settlement
agreement.--A party may not make a motion for entry of
a covered consent decree or to dismiss a civil action
pursuant to a covered settlement agreement until after
the requirements of subparagraph (A) have been met.
(2) Publication of covered consent decrees or settlement
agreements; public comment.--Not later than 30 days before the
date on which a covered consent decree or settlement agreement
is filed with a court, the agency seeking to enter the covered
consent decree or settlement agreement shall--
(A) publish online the proposed covered consent
decree or settlement agreement; and
(B) provide a reasonable opportunity by notice in
the Federal Register to persons who are not named as
parties or interveners to the covered civil action to
comment in writing.
(c) Consideration of Public Comment.--An agency seeking to enter a
covered consent decree or settlement agreement shall promptly consider
any written comments received under subsection (b)(2)(B) and may
withdraw or withhold consent to the proposed consent decree or
settlement agreement if the comments disclose facts or considerations
that indicate that the consent is inappropriate, improper, inadequate,
or inconsistent with any provision of law.
TITLE II--MODERNIZING PERMITTING LAWS
SEC. 201. TRANSMISSION.
(a) Construction Permit.--Section 216 of the Federal Power Act (16
U.S.C. 824p) is amended by striking subsection (b) and inserting the
following:
``(b) Construction Permit.--Except as provided in subsections
(d)(1) and (i), the Commission may, after notice and an opportunity for
hearing, issue 1 or more permits for the construction or modification
of electric transmission facilities necessary in the national interest
if the Commission finds that--
``(1)(A) a State in which the transmission facilities are
to be constructed or modified does not have authority to--
``(i) approve the siting of the facilities; or
``(ii) consider the interstate benefits or
interregional benefits expected to be achieved by the
proposed construction or modification of transmission
facilities in the State;
``(B) the applicant for a permit is a transmitting utility
under this Act but does not qualify to apply for a permit or
siting approval for the proposed project in a State because the
applicant does not serve end-use customers in the State; or
``(C) a State commission or other entity that has authority
to approve the siting of the facilities--
``(i) has not made a determination on an
application seeking approval pursuant to applicable law
by the date that is 1 year after the date on which the
application was filed with the State commission or
other entity;
``(ii) has conditioned its approval in such a
manner that the proposed construction or modification
will not significantly reduce transmission capacity
constraints or congestion in interstate commerce or is
not economically feasible; or
``(iii) has denied an application seeking approval
pursuant to applicable law;
``(2) the proposed facilities will be used for the
transmission of electric energy in interstate (including
transmission from the outer Continental Shelf to a State) or
foreign commerce;
``(3) the proposed construction or modification is
consistent with the public interest;
``(4) the proposed construction or modification will--
``(A) significantly reduce transmission congestion
in interstate commerce; and
``(B) protect or benefit consumers;
``(5) the proposed construction or modification--
``(A) is consistent with sound national energy
policy; and
``(B) will enhance energy independence; and
``(6) the proposed modification will maximize, to the
extent reasonable and economical, the transmission capabilities
of existing towers or structures.''.
(b) State Siting and Consultation.--Section 216 of the Federal
Power Act (16 U.S.C. 824p) is amended by striking subsection (d) and
inserting the following:
``(d) State Siting and Consultation.--
``(1) Preservation of state siting authority.--The
Commission shall have no authority to issue a permit under
subsection (b) for the construction or modification of an
electric transmission facility within a State except as
provided in paragraph (1) of that subsection.
``(2) Consultation.--In any proceeding before the
Commission under subsection (b), the Commission shall afford
each State in which a transmission facility covered by the
permit is or will be located, each affected Federal agency and
Indian Tribe, private property owners, and other interested
persons a reasonable opportunity to present their views and
recommendations with respect to the need for and impact of a
facility covered by the permit.''.
(c) Rights-of-Way.--Section 216(e) of the Federal Power Act (16
U.S.C. 824p(e)) is amended--
(1) in paragraph (1), by striking ``or a State''; and
(2) by adding at the end the following:
``(5) Compensation for property taken under this subsection
shall be determined and awarded by the district court of the
United States in accordance with section 3114(c) of title 40,
United States Code.''.
(d) Cost Allocation.--
(1) In general.--Section 216 of the Federal Power Act (16
U.S.C. 824p) is amended by striking subsection (f) and
inserting the following:
``(f) Cost Allocation.--
``(1) Transmission tariffs.--For the purposes of this
section, any transmitting utility that owns, controls, or
operates electric transmission facilities that the Commission
finds to be consistent with the findings under paragraphs (2)
through (5) and, if applicable, (6) of subsection (b) shall
file a tariff with the Commission in accordance with section
205 and the regulations of the Commission allocating the costs
of the new or modified transmission facilities.
``(2) Cost allocation principles.--The Commission shall
require that tariffs filed under this subsection fairly reflect
and allocate the costs of providing service to each class of
customers, including improved reliability, reduced congestion,
reduced power losses, greater carrying capacity, reduced
operating reserve requirements, and improved access to
generation, in accordance with cost allocation principles of
the Commission.
``(3) Cost causation principle.--The cost of electric
transmission facilities described in paragraph (1) shall be
allocated to customers within the transmission planning region
or regions that benefit from the facilities in a manner that is
at least roughly commensurate with the estimated benefits
described in paragraph (2).''.
(2) Savings clause.--If the Federal Energy Regulatory
Commission finds that the considerations under paragraphs (2)
through (5) and, if applicable, (6) of subsection (b) of
section 216 of the Federal Power Act (16 U.S.C. 824p) (as
amended by subsection (a)) are met, nothing in this section or
the amendments made by this section shall be construed to
exclude transmission facilities located on the outer
Continental Shelf from being eligible for cost allocation
established under subsection (f)(1) of that section (as amended
by paragraph (1)).
(e) Coordination of Federal Authorizations for Transmission
Facilities.--Section 216(h) of the Federal Power Act (16 U.S.C.
824p(h)) is amended--
(1) in paragraph (2), by striking the period at the end and
inserting the following: ``, except that--
``(A) the Commission shall act as the lead agency
in the case of facilities permitted under subsection
(b); and
``(B) the Department of the Interior shall act as
the lead agency in the case of facilities located on a
lease, easement, or right-of-way granted by the
Secretary of the Interior under section 8(p)(1)(C) of
the Outer Continental Shelf Lands Act (43 U.S.C.
1337(p)(1)(C)).'';
(2) in each of paragraphs (3), (4)(B), (4)(C), (5)(B),
(6)(A), (7)(A), (7)(B)(i), (8)(A)(i), and (9), by striking
``Secretary'' each place it appears and inserting ``lead
agency'';
(3) in paragraph (4)(A), by striking ``As head of the lead
agency, the Secretary'' and inserting ``The lead agency'';
(4) in paragraph (5)(A), by striking ``As lead agency head,
the Secretary'' and inserting ``The lead agency''; and
(5) in paragraph (7)--
(A) in subparagraph (A), by striking ``18 months
after the date of enactment of this section'' and
inserting ``18 months after the date of enactment of
the Building American Energy Security Act of 2023'';
and
(B) in subparagraph (B)(i), by striking ``1 year
after the date of enactment of this section'' and
inserting ``18 months after the date of enactment of
the Building American Energy Security Act of 2023''.
(f) Interstate Compacts.--Section 216(i)(4) of the Federal Power
Act (16 U.S.C. 824p(i)(4)) is amended by striking ``in disagreement''
in the matter preceding subparagraph (A) and all that follows through
the period at the end of subparagraph (B) and inserting ``unable to
reach an agreement on an application seeking approval by the date that
is 1 year after the date on which the application for the facility was
filed.''.
(g) Transmission Infrastructure Investment.--Section 219(b)(4) of
the Federal Power Act (16 U.S.C. 824s(b)(4)) is amended--
(1) in subparagraph (A), by striking ``and'' after the
semicolon at the end;
(2) in subparagraph (B), by striking the period at the end
and inserting ``; and''; and
(3) by adding at the end the following:
``(C) all prudently incurred costs associated with
payments to jurisdictions impacted by electric
transmission facilities developed pursuant to section
216.''.
(h) Conforming Amendment.--Section 50151(b) of Public Law 117-169
(42 U.S.C. 18715(b)) is amended by striking ``facilities designated by
the Secretary to be necessary in the national interest'' and inserting
``facilities in national interest electric transmission corridors
designated by the Secretary''.
SEC. 202. DEFINITION OF NATURAL GAS UNDER THE NATURAL GAS ACT.
(a) In General.--Section 2 of the Natural Gas Act (15 U.S.C. 717a)
is amended by striking paragraph (5) and inserting the following:
``(5) `Natural gas' means--
``(A) natural gas unmixed;
``(B) any mixture of natural and artificial gas; or
``(C) hydrogen mixed or unmixed with natural
gas.''.
(b) Conforming Amendments.--Section 7(c)(1)(A) of the Natural Gas
Act (15 U.S.C. 717f(c)(1)(A)) is amended, in the first sentence, in the
proviso--
(1) by inserting ``or, in the case of any person engaged in
the transportation of natural gas described in section 2(5)(C),
on the date of enactment of the Building American Energy
Security Act of 2023,'' before ``over the route''; and
(2) by striking ``within ninety days after the effective
date of this amendatory Act'' and inserting ``within 90 days
after the effective date of this amendatory Act, or, in the
case of any person engaged in the transportation of natural gas
described in section 2(5)(C), within 90 days after the date of
enactment of the Building American Energy Security Act of
2023''.
(c) Savings Clause.--Nothing in this section or an amendment made
by this section authorizes the Federal Energy Regulatory Commission--
(1) to order a natural-gas company under section 7(a) of
the Natural Gas Act (15 U.S.C. 717f(a)) to extend or modify the
transportation facilities of the natural-gas company used for
natural gas described in subparagraph (A) or (B) of section
2(5) of that Act (15 U.S.C. 717a(5)) to transport natural gas
described in subparagraph (C) of that section; or
(2) to attach to a certificate of public convenience and
necessity issued under section 7(e) of the Natural Gas Act (15
U.S.C. 717f(e)) any requirement that transportation facilities
used for natural gas described in subparagraph (A) or (B) of
section 2(5) of that Act (15 U.S.C. 717a(5)) be capable of
transporting natural gas described in subparagraph (C) of that
section.
SEC. 203. AUTHORIZATION OF MOUNTAIN VALLEY PIPELINE.
(a) Finding.--Congress finds that the timely completion of the
construction of the Mountain Valley Pipeline--
(1) is necessary--
(A) to ensure an adequate and reliable supply of
natural gas to consumers at reasonable prices;
(B) to facilitate an orderly transition of the
energy industry to cleaner fuels; and
(C) to reduce carbon emissions; and
(2) is in the national interest.
(b) Purpose.--The purpose of this section is to require the
appropriate Federal officers and agencies to take all necessary actions
to permit the timely completion of the construction and operation of
the Mountain Valley Pipeline without further administrative or judicial
delay or impediment.
(c) Definitions.--In this section:
(1) Commission.--The term ``Commission'' means the Federal
Energy Regulatory Commission.
(2) Mountain valley pipeline.--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.
(3) Secretary concerned.--The term ``Secretary concerned''
means, as applicable--
(A) the Secretary of Agriculture;
(B) the Secretary of the Interior; or
(C) the Secretary of the Army.
(d) Authorization of Necessary Approvals.--
(1) Biological opinion and incidental take statement.--
Notwithstanding any other provision of law, not later than 30
days after the date of enactment of this Act, the Secretary of
the Interior shall issue a biological opinion and incidental
take statement for the Mountain Valley Pipeline, substantially
in the form of the biological opinion and incidental take
statement for the Mountain Valley Pipeline issued by the United
States Fish and Wildlife Service on September 4, 2020.
(2) Additional authorizations.--Notwithstanding any other
provision of law, not later than 30 days after the date of
enactment of this Act--
(A) the Secretary of the Interior shall issue all
rights-of-way, permits, leases, and other
authorizations that are necessary for the construction,
operation, and maintenance of the Mountain Valley
Pipeline, substantially in the form approved in the
record of decision of the Bureau of Land Management
entitled ``Mountain Valley Pipeline and Equitrans
Expansion Project Decision to Grant Right-of-Way and
Temporary Use Permit'' and dated January 14, 2021;
(B) the Secretary of Agriculture shall amend the
Land and Resource Management Plan for the Jefferson
National Forest as necessary to permit the
construction, operation, and maintenance of the
Mountain Valley Pipeline within the Jefferson National
Forest, substantially in the form approved in the
record of decision of the Forest Service entitled
``Record of Decision for the Mountain Valley Pipeline
and Equitrans Expansion Project'' and dated January
2021;
(C) the Secretary of the Army shall issue all
permits and verifications necessary to permit the
construction, operation, and maintenance of the
Mountain Valley Pipeline across waters of the United
States; and
(D) the Commission shall--
(i) approve any amendments to the
certificate of public convenience and necessity
issued by the Commission on October 13, 2017
(161 FERC 61,043); and
(ii) grant any extensions necessary to
permit the construction, operation, and
maintenance of the Mountain Valley Pipeline.
(e) Authority To Modify Prior Decisions or Approvals.--In meeting
the applicable requirements of subsection (d), a Secretary concerned
may modify the applicable prior biological opinion, incidental take
statement, right-of-way, amendment, permit, verification, or other
authorization described in that subsection if the Secretary concerned
determines that the modification is necessary--
(1) to correct a deficiency in the record; or
(2) to protect the public interest or the environment.
(f) Relationship to Other Laws.--
(1) Determination to issue or grant.--The requirements of
subsection (d) shall supersede the provisions of any law
(including regulations) relating to an administrative
determination as to whether the biological opinion, incidental
take statement, right-of-way, amendment, permit, verification,
or other authorization shall be issued for the Mountain Valley
Pipeline.
(2) Savings provision.--Nothing in this section limits the
authority of a Secretary concerned or the Commission to
administer a right-of-way or enforce any permit or other
authorization issued under subsection (d) in accordance with
applicable laws (including regulations).
(g) Judicial Review.--
(1) In general.--The actions of the Secretaries concerned
and the Commission pursuant to subsection (d) that are
necessary for the construction and initial operation at full
capacity of the Mountain Valley Pipeline shall not be subject
to judicial review.
(2) Other actions.--The United States Court of Appeals for
the District of Columbia Circuit shall have original and
exclusive jurisdiction over--
(A) any claim alleging--
(i) the invalidity of this section; or
(ii) that an action is beyond the scope of
authority conferred by this section; and
(B) any claim relating to any action taken by a
Secretary concerned or the Commission relating to the
Mountain Valley Pipeline other than an action described
in paragraph (1).
SEC. 204. RIGHTS-OF-WAY ACROSS INDIAN LAND.
The first section of the Act of February 5, 1948 (62 Stat. 17,
chapter 45; 25 U.S.C. 323), is amended by adding at the end the
following: ``Any right-of-way granted by an Indian tribe for the
purposes authorized under this section shall not require the approval
of the Secretary of the Interior, on the condition that the right-of-
way approval process by the Indian tribe substantially complies with
subsection (h) of the first section of the Act of August 9, 1955 (69
Stat. 539, chapter 615; 25 U.S.C. 415(h)), or the Indian tribe has
approved regulations under paragraph (1) of that subsection.''.
SEC. 205. FEDERAL ENERGY REGULATORY COMMISSION STAFFING.
(a) Consultation Deadline.--Section 401(k)(6) of the Department of
Energy Organization Act (42 U.S.C. 7171(k)(6)) is amended--
(1) by striking ``The Chairman'' and inserting the
following:
``(A) In general.--The Chairman''; and
(2) by adding at the end the following:
``(B) Deadline.--The requirement under subparagraph
(A) shall be considered met if the Director of the
Office of Personnel Management has not taken final
action on a plan for applying authorities under this
subsection within 120 days of submission of the plan by
the Chairman to the Director of the Office of Personnel
Management.''.
(b) Elimination of Reporting Sunset.--Section 11004(b)(1) of the
Energy Act of 2020 (42 U.S.C. 7171 note; Public Law 116-260) is amended
by striking ``thereafter for 10 years,'' and inserting ``thereafter,''.
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