[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]




 
                       THE ROLE OF NEPA IN THE 
                          MID-ATLANTIC STATES

=======================================================================

                        OVERSIGHT FIELD HEARING

                               before the

                         COMMITTEE ON RESOURCES
                     U.S. HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION

                               __________

           Saturday, September 17, 2005, in Norfolk, Virginia

                               __________

                           Serial No. 109-30

                               __________

           Printed for the use of the Committee on Resources



  Available via the World Wide Web: http://www.gpoaccess.gov/congress/
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                                 ______

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                         COMMITTEE ON RESOURCES

                 RICHARD W. POMBO, California, Chairman
       NICK J. RAHALL II, West Virginia, Ranking Democrat Member

Don Young, Alaska                    Dale E. Kildee, Michigan
Jim Saxton, New Jersey               Eni F.H. Faleomavaega, American 
Elton Gallegly, California               Samoa
John J. Duncan, Jr., Tennessee       Neil Abercrombie, Hawaii
Wayne T. Gilchrest, Maryland         Solomon P. Ortiz, Texas
Ken Calvert, California              Frank Pallone, Jr., New Jersey
Barbara Cubin, Wyoming               Donna M. Christensen, Virgin 
  Vice Chair                             Islands
George P. Radanovich, California     Ron Kind, Wisconsin
Walter B. Jones, Jr., North          Grace F. Napolitano, California
    Carolina                         Tom Udall, New Mexico
Chris Cannon, Utah                   Raul M. Grijalva, Arizona
John E. Peterson, Pennsylvania       Madeleine Z. Bordallo, Guam
Jim Gibbons, Nevada                  Jim Costa, California
Greg Walden, Oregon                  Charlie Melancon, Louisiana
Thomas G. Tancredo, Colorado         Dan Boren, Oklahoma
J.D. Hayworth, Arizona               George Miller, California
Jeff Flake, Arizona                  Edward J. Markey, Massachusetts
Rick Renzi, Arizona                  Peter A. DeFazio, Oregon
Stevan Pearce, New Mexico            Jay Inslee, Washington
Henry Brown, Jr., South Carolina     Mark Udall, Colorado
Thelma Drake, Virginia               Dennis Cardoza, California
Luis G. Fortuno, Puerto Rico         Stephanie Herseth, South Dakota
Cathy McMorris, Washington
Bobby Jindal, Louisiana
Louie Gohmert, Texas
Marilyn N. Musgrave, Colorado
Vacancy

                     Steven J. Ding, Chief of Staff
                      Lisa Pittman, Chief Counsel
                 James H. Zoia, Democrat Staff Director
               Jeffrey P. Petrich, Democrat Chief Counsel
                                 ------                                

                      TASK FORCE ON IMPROVING THE
                    NATIONAL ENVIRONMENTAL POLICY ACT

                 CATHY McMORRIS, Washington, Chairwoman
             TOM UDALL, New Mexico, Ranking Democrat Member

Ken Calvert, California              George Miller, California
George P. Radanovich, California     Edward J. Markey, Massachusetts
Chris Cannon, Utah                   Frank Pallone, Jr., New Jersey
Jim Gibbons, Nevada                  Grace F. Napolitano, California
Greg Walden, Oregon                  Jay Inslee, Washington
Rick Renzi, Arizona                  Mark Udall, Colorado
Stevan Pearce, New Mexico            Raul M. Grijalva, Arizona
Henry Brown, Jr., South Carolina     Jim Costa, California
Thelma Drake, Virginia               Nick J. Rahall II, West Virginia, 
Louie Gohmert, Texas                     ex officio
Richard W. Pombo, California, ex 
    officio


                                 ------                                
                            C O N T E N T S

                              ----------                              
                                                                   Page

Hearing held on Saturday, September 17, 2005.....................     1

Statement of Members:
    Drake, Hon. Thelma, a Representative in Congress from the 
      State of Virginia..........................................     2
    McMorris, Hon. Cathy, a Representative in Congress from the 
      State of Washington........................................     1

Statement of Witnesses:
    Besa, Glen, Appalachian Regional Staff Director, Sierra Club, 
      Richmond, Virginia.........................................    30
        Prepared statement of....................................    33
    Holloway, Alverce, Jr., Pulp and Paperworkers Council Member, 
      International Brotherhood of Firemen and Oilers, Local 
      #176, Franklin, Virginia...................................     8
        Prepared statement of....................................     9
    Kelman, Gary F., C.E.P., President, National Association of 
      Environmental Professionals, Bowie, Maryland...............    16
        Prepared statement of....................................    17
    Shafer, John H., Manager, Sustainable Natural Resource 
      Practices, NiSource Corporate Services Company, on behalf 
      of the Interstate Natural Gas Association of America, 
      Lafayette, Louisiana.......................................    10
        Prepared statement of....................................    12
    Spainhour, Charles J., Corporate Manager of Environmental 
      Services, Vulcan Materials Company, Birmingham, Alabama....    26
        Prepared statement of....................................    28
    Stiles, William A., Jr., Vice President, Wetlands Watch, 
      Norfolk, Virginia..........................................    36
        Prepared statement of....................................    38
    Wagner, Hon. Frank W., Senator, Seventh District, Senate of 
      Virginia, Virginia Beach, Virginia.........................     4
        Prepared statement of....................................     6


 OVERSIGHT FIELD HEARING ON THE ROLE OF NEPA IN THE MID-ATLANTIC STATES

                              ----------                              


                      Saturday, September 17, 2005

                     U.S. House of Representatives

                            NEPA Task Force

                         Committee on Resources

                           Norfolk, Virginia

                              ----------                              

    The Committee met, pursuant to call, at 1:00 p.m., in the 
Ted Constant Convocation Center at Old Dominion University, 
Norfolk, Virginia, Hon. Cathy McMorris [Chairwoman of the Task 
Force] presiding.
    Present: Representatives McMorris and Drake.

STATEMENT OF HON. CATHY McMORRIS, A REPRESENTATIVE IN CONGRESS 
                  FROM THE STATE OF WASHINGTON

    Ms. McMorris. Good afternoon. The hearing will come to 
order. I would like to welcome everyone, and welcome the 
members of the Old Dominion University Navy/Army ROTC Color 
Guard, who will post the colors, and then Robert Brown will 
lead us in the Pledge of Allegiance. So please rise.
    [Presentation of the Colors and Pledge of Allegiance.]
    Ms. McMorris. Please help me thank them.
    Well, welcome to everyone. We are really pleased to be 
here. This is our fifth field hearing of the NEPA Task Force, 
the National Environmental Policy Act, and I am pleased that my 
fellow Representative, Thelma Drake, would invite us to this 
area of the world, and I look forward to hearing from her as 
well as everyone here today.
    I am Cathy McMorris. I am from Washington State and have 
been asked by Chairman Richard Pombo to chair the NEPA Task 
Force. This will be our last field hearing, and then we will be 
wrapping up our business in Washington, D.C.
    Already, we have learned a lot about the NEPA process and 
the way that we can make it work better. We have heard from a 
broad range of people on what works and what needs to be 
improved when it comes to NEPA.
    We kicked off our field hearings back in April in Spokane 
where we heard about some key transportation projects that have 
been stalled because of time and costs. In Arizona, we heard 
that NEPA is hurting our ability to keep our forests healthy.
    In Texas, we heard that it can take up to 20 years for a 
project, whether it is a reservoir, an oil refinery or a power 
plant that can or cannot be built. In New Mexico, we heard 
about the impact of NEPA on our private lands and ranches.
    Farmers, ranchers, small businesses, tribal leaders, 
environmentalists and others all have had the chance to share 
their ideas and concerns with the Task Force, either in person 
or through written comments. We have encouraged that 
participation. We have had a website set up from the very 
beginning, welcomed e-mails, letters, comments from a host of 
people all across the Nation.
    Over the past two weeks, Congress has focused on how best 
to address the aftermath of Hurricane Katrina. As we work 
together to rebuild the Gulf region and deal with record high 
energy costs that are hurting our farmers, our families and our 
businesses, our Task Force will look at how we can work to make 
sure NEPA doesn't impede access to affordable domestic energy, 
rebuilding of roads and homes, and managing our Nation's 
natural resources.
    We all share the same goal of clean air, clean water and a 
healthy environment. We want to focus NEPA to ensure sound 
environmental decision instead of endless analysis and 
litigation. We must protect and enhance our wildlife, 
watersheds and communities, and put common sense back into 
environmental decisionmaking. NEPA shouldn't become bureaucracy 
in action.
    In this process, we want to preserve the intent of NEPA, 
including the public involvement which is at the heart of this 
35-year-old law.
    Virginia and other States represented by our witnesses 
provide us unique examples of how NEPA works and how it can be 
improved. The goal of this Task Force has been to get out of 
Washington, D.C., to listen first to the people on the ground 
so that we can better understand if NEPA is living up to its 
intent.
    So it is no secret that NEPA as well as other environmental 
laws have caused vast amounts of litigation, in some instances 
have stalled important economic development projects, and has 
cost taxpayers millions. Nearly every word in NEPA has been 
litigated. That, in my opinion, doesn't help our economy, and 
it certainly doesn't help our environment.
    The question before this Task Force has been ``how can we 
do better for our economy and for our environment?''
    At this time, I would like to recognize Congresswoman Drake 
for her opening statement.

 STATEMENT OF HON. THELMA DRAKE, A REPRESENTATIVE IN CONGRESS 
                   FROM THE STATE OF VIRGINIA

    Ms. Drake. Thank you. Good afternoon, everyone. I would 
first like to thank Resources Chairman Richard Pombo and 
Chairwoman Cathy McMorris for allowing the NEPA Task Force to 
travel to Norfolk, and providing Hampton Roads citizens the 
opportunity to participate in this public hearing.
    I would also like to thank today's witnesses for their 
testimony, Old Dominion University for providing this great 
space, and for all of the citizens who have decided to spend 
this beautiful Saturday afternoon at a Congressional hearing.
    This field hearing provides us with the rare opportunity to 
put a local face on decisions made at the Federal level. It is 
one thing to discuss the merits of policy from within the 
confines of a Congressional committee room and quite another to 
bring the debate home. So often you hear of people going to 
Washington to get things done. It is refreshing to be able to 
say that we have brought Washington back to the local 
community.
    We are a government of the people, by the people, and for 
the people, and therefore, I view today's exchange as an 
opportunity to participate in an exercise of democracy in one 
of its purest forms.
    As we all know, when the National Environmental Policy Act 
was signed into law in 1970, it provided a foundation for 
environmental policymaking in the United States. As our 
nation's first comprehensive environmental law, its purpose is 
to help public officials make decisions based on an 
understanding of environmental consequences and take actions 
that protect, restore and enhance the environment. I believe 
that everyone here can agree that such a policy is needed, and 
its intent is worthwhile.
    When the National Environmental Policy Act is mentioned out 
west, heads turn because of this region's unique relationship 
with the Federal Government. NEPA is a part of business as 
usual, because more than 44 percent of the west is owned by the 
Federal Government.
    A colleague of ours characterizes it by saying, ``We aren't 
just neighbors with the Federal Government. They are the entire 
neighborhood.'' As a result, NEPA is understood by many people 
and factors into many decisions made out west.
    On the East Coast, NEPA can go unnoticed by ordinary 
citizens and businesses, because we are not in constant contact 
with the law. This may lead people to believe that we do not 
care about the implementation of NEPA and the effect it has on 
projects having to do with resources production, road building, 
and other construction projects. However, that statement could 
not be further from the truth.
    The recent court case with the OLF in Washington County, 
North Carolina, is an example of NEPA working well. We will 
hear testimony today from several industries whose interactions 
with NEPA can change the way in which they do business.
    I think every American can agree that each of these 
industries plays a pertinent role in everyday living. The 
purpose of this Task Force is to dig deep and learn as much as 
possible about this Act as we can.
    We have held similar hearings all across America, and we 
will be using this information to examine if there are ways to 
improve the Act. We must remember that this law impacts many 
important sectors of our economy. We need a policy that is 
protecting our environment, but also one that is not hindering 
our economy.
    I look forward to hearing from our witnesses, and I yield 
back my time.
    Ms. McMorris. Thank you very much.
    As everyone recognizes, one of the key elements is public 
participation. Today we have invited seven witnesses who 
represent broad experience and backgrounds, and we want to hear 
from everyone as to their thoughts on NEPA. We encourage your 
comments, and so we will be taking all of those comments into 
consideration as we move forward.
    At this time, I would like to introduce our panel. First is 
Senator Frank Wagner. He is from the Seventh District of 
Virginia.
    Next is Alverce Holloway, proud member of the Pulp and 
Paperworkers Resource Council; John Shafer of NiSource, on 
behalf of the Interstate Natural Gas Association of America.
    Next is Gary Kelman, President of the National Association 
of Environmental Professionals. Following Mr. Kelman is Mr. 
Spainhour of Vulcan Materials. We also have Glen Besa of the 
Sierra Club, and wrapping it up is Skip Stiles of Wetlands 
Watch.
    Thank you all for joining us today. We appreciate you 
taking the time to be here.
    It is the policy of the Resources Committee to swear in 
witnesses. So at this time, I need to ask you to stand and 
raise your right hand.
    [Witnesses sworn.]
    Ms. McMorris. Let the record reflect, the witnesses 
answered in the affirmative.
    Before we get started, I need to point out that we have a 
time clock here. We have asked each of you to present five 
minutes worth of oral testimony. The yellow light will suggest 
that it is time to wrap up, and then the red light means that 
your time has expired. We will be asking questions following 
your testimony.
    So we are just going to start and have each of you present 
your testimony. Then we will follow it all with the questions.
    Senator Frank Wagner, if you would begin, that would be 
great.

STATEMENT OF FRANK WAGNER, A SENATOR IN THE GENERAL ASSEMBLY OF 
                     THE STATE OF VIRGINIA

    Mr. Wagner. Thank you, Madam Chairman, Congresswoman Drake. 
I want to thank you for taking the time from your schedule to 
hold the hearings in Hampton Roads. It is indeed an honor to 
have you here today.
    As this country faces an increasingly severe energy crisis, 
it is altogether appropriate that you reexamine the 35-year-old 
NEPA laws. Our nation's energy crisis threatens our national 
security, our economic stability, and threatens the quality of 
our environment. However, I believe the manifestations of our 
failure to implement a sound energy policy is being borne by 
our constituents every day in sticker shock at the gas pump and 
skyrocketing cooling and heating bills.
    This problem should not exist. It is solvable. But the 
problem can only be solved if we as policymakers provide the 
tools necessary to our citizens to solve it.
    Let me start by saying that NEPA, as initially implemented, 
was a very positive process. Industries, utilities, and the 
environmental community and government regulators worked 
together to ensure that, as new projects came on line, the 
impact to the environment was minimal, and yet allowed the 
country to move forward through investments in energy 
development, domestic resources, and new technologies. However, 
over the decades, NEPA and other policies have evolved into 
tools that are being used successfully to block most new energy 
projects.
    The proof of this lies in our failure to permit new, clean 
nuclear electric generation, nuclear power plants, and new 
liquified natural gas, or LNG, offload terminals. We have 
substantial domestic resources off limits in our country to 
development, including clean burning natural gas. Is it any 
wonder that we face an energy crisis?
    Madam Chairman, we have all been shocked as we have watched 
events unfold in the aftermath of Hurricane Katrina. Our 
Commonwealth, indeed our entire nation, is assisting in any way 
we can in the relief and rebuilding efforts in the Gulf region. 
But if there is a silver lining in this cloud, it is the 
education of Americans as to the vulnerability, lack of 
redundancy and extreme limits that our nation's energy system 
is currently operating on.
    The entire nation has felt the shock, and they are, 
rightfully, demanding solutions. We must not forget this 
lesson, and we must correct these intolerable situations.
    Let me add one more comment on this terrible storm. 
Hurricane Katrina has shown us a glimpse of the future, a 
glimpse of where this country is headed in terms of our energy 
availability and our energy affordability under our existing 
energy policies.
    As I mentioned in my opening comments, I believe existing 
NEPA laws can and will have a negative impact on the 
environment. Let me explain. Even prior to Katrina, the issue 
of availability and affordability of home heating products was 
an issue. Now it has become a crisis.
    Madam Chairman, I have attached an article as part of your 
testimony about a firm in Maine written in the Boston Globe, 
and if I could read--If I could find it real quickly, I would 
read a little quick excerpt from that article. But it says, in 
commenting from the proprietor of this facility, ``Now it is 
just unbelievable,'' he said. ``I can't keep up with it. High 
oil prices have Mainers searching for cheaper alternatives, and 
firewood is at the top of the list.''
    Madam Chairman, I have attached an article. I can only 
assume that this is the case at thousands of locations all over 
the country, including New England and the Midwest, no doubt 
accelerating in the aftermath of Hurricane Katrina.
    One question I have asked myself: What will put more 
pollution in the air this winter? Millions of unregulated 
fireplaces spewing tons of chemicals and ash into the air, or a 
few well regulated and carefully monitored coal burning 
utilities? What will produce more pollution, the millions of 
unregulated fireplaces or a few offshore natural gas wells 
producing hundreds of millions of cubic feet a day of clean 
burning natural gas?
    I believe, through the well-intentioned efforts of some in 
the environmental community, using NEPA laws and other 
regulatory blocking actions, the stage has been set for record 
air pollution this winter.
    More tragic than this are the millions of Americans who 
will not be able to afford to heat their homes or will be 
forced to decide on whether to pay for food, medicine or home 
heating. This is an inexcusable and intolerable condition for 
the greatest nation on earth. We must work to alleviate the 
short term impact of this situation; but, more importantly, we 
must resolve the long term policy mistakes that have driven us 
to where we are today.
    In order to achieve an optimum condition for the 
environment, NEPA must look at the environmental impacts of not 
permitting a facility. Let me give you one example.
    Much progress has been made in the area of hydrogen fuel 
cells. In fact, many predict that we are driven toward--and I 
look forward to that day--a hydrogen economy. These fuel cells 
can and will power our cars, if we have the capability of 
producing hydrogen in far greater quantities and at less cost 
than we currently do.
    Hydrogen is produced by using electricity to convert water 
into hydrogen and oxygen. Our ability to produce electricity in 
this country can barely satisfy our current demand, much less 
the demands for hydrogen production created by fuel cells.
    We will need to increase our electric power generation 
capability many times to meet this demand. Then it becomes an 
equation. What produces less pollution? We continue on our 
present course, that of fuel burning cars, producing noxide and 
all the rest of the car emissions, or millions of cars that 
were formerly burning gas but are now producing zero emissions 
from energy produced by several new coal, nuclear or renewable 
generating plants. The answer is (b), which also results in a 
much cleaner environment. Thousands of Americans will be 
employed, using American energy and American technology to meet 
American demand in fuel cells and automobiles.
    One can follow this logic train through most of the 
nation's energy needs. Unfortunately, NEPA, in my estimation, 
as it is currently being used is being misused, and the legal 
and regulatory hurdles imposed have made what I have outlined a 
new impossibility.
    Witness the many attempts of trying to establish renewable 
sources of energy--wind generation--in Cape Cod, Massachusetts 
and here in Virginia, only to have the permits blocked or the 
expenses associated with compliance too great to make an 
otherwise worthy project unfeasible. It is no wonder we are in 
the current energy plight.
    Madam Chairman, I submit we must change this system. We 
have done much in Virginia to take a leadership role in 
attempting to open our offshore natural gas resources to 
development and working on a new energy strategy.
    I am sorry. I wasn't even looking at the lights. I read 
that. I will yield no time back, and be glad to answer any 
questions that you have. Thank you, Madam Chairman.
    [The prepared statement of Frank Wagner follows:]

         Statement of The Honorable Frank W. Wagner, Senator, 
                    7th District, Senate of Virginia

    Thank you, Madam Chairman, Congresswoman Drake; I want to thank you 
for taking time from your schedule to hold this hearing in Hampton 
Roads. It is indeed an honor to have you here today.
    As this country faces an increasingly severe energy crisis, it is 
altogether appropriate that you re-examine the 30-year-old NEPA laws. 
Our nation's energy crisis threatens our national security, our 
economic stability and threatens the quality of our environment. 
However, I believe the real manifestation of our failure to implement a 
sound energy policy is being borne by our constituents every day in 
sticker shock at the gas pump and skyrocketing cooling and heating 
bills.
    What really makes me angry is that this problem should not exist--
it is solvable. But the problem can only be solved if we as policy 
makers provide the tools necessary to our citizens to solve it.
    Let me start by saying that NEPA as initially implemented was a 
very positive process. Industry, utilities, the environmental community 
and government regulators worked together to insure that, as new 
projects came on line, the impact on the environment was minimal, yet 
allowed the country to move forward through investments in energy 
development, domestic resources and new technologies.
    However, over the decades, NEPA and other policies have evolved 
into a tool that is being used successfully to block most new energy 
projects. The proof of this lies in our failure to permit new, clean 
nuclear electric generation and new Liquefied Natural Gas, or LNG, 
terminals. We have made substantial domestic energy sources off-limits 
to development, much of it clean burning natural gas. Is it any wonder 
we face an energy crisis?
    Madam Chairman, we all have been shocked as we watched events 
unfold in the aftermath of Hurricane Katrina. Our citizens and our 
Commonwealth, indeed our entire nation, are assisting in any way we can 
in the relief and rebuilding efforts in the Gulf region.
    But, if there is in any way a silver lining in this cloud, it is 
the education of Americans as to the vulnerability, lack of redundancy 
and the extreme limits on how our nation's energy system is allowed to 
operate. The entire nation felt the shock and they are, rightfully, 
demanding solutions. We must not forget this lesson and we must correct 
this intolerable situation.
    Let me add one comment on this terrible storm. Hurricane Katrina 
has shown us a glimpse of the future. A glimpse of where this country 
is headed in terms of our energy availability and affordability under 
our existing energy policies.
    As I mentioned in my opening comments, I believe existing NEPA laws 
can and will have a negative impact on the environment. Let me explain.
    Even prior to Hurricane Katrina, the issue of availability and 
affordability of home heating products was an issue. Now it could 
become a crisis.
    Madam Chairman, I have attached an article from a Maine newspaper 
that details the soaring sales in firewood, the largest demand that the 
particular supplier interviewed had ever seen. I can only assume that 
this is the case at thousands of locations across the country--no doubt 
accelerating in the aftermath of Hurricane Katrina.
    One question I have asked myself is, what will put more pollution 
in the air this winter? Millions of unregulated fireplaces spewing tons 
of chemicals and ash into the air, or a few well-regulated and 
carefully monitored coal-burning utilities? What will produce more 
pollution, millions of unregulated fireplaces or a few offshore natural 
gas wells producing hundreds of millions of cubic feet--a day--of 
clean-burning natural gas? I believe through the well intentioned 
efforts of some in the environmental community, using NEPA laws and 
other regulatory blocking actions, the stage has been set for a record 
in worst air pollution ever.
    More tragic than this is the millions of Americans who will not be 
able to afford to heat their homes or will be forced to decide on 
whether to pay for food, medicine or home heating. This is an 
inexcusable and intolerable condition for the greatest nation on earth. 
We must work to alleviate the short-term impact of this situation. But, 
more importantly, we must resolve the long-term policy mistakes that 
have driven us to where we are today.
    In order to achieve an optimum condition for the environment, NEPA 
must look at the environmental impacts of not permitting a facility. 
Let me give you one example.
    Much progress has been made in the area of hydrogen fuel cells. 
These fuel cells can and will power our cars, if we have the capability 
of producing hydrogen in far greater quantities and at less cost than 
we currently do.
    Hydrogen is produced by using electricity to convert water into 
hydrogen and oxygen. Our ability to produce electricity in the country 
can barely satisfy our current demand, much less the demands for 
hydrogen production created by fuel cells. We will need to increase our 
electric power generating capability many times to meet the demand. 
Then, it becomes an equation. What produces more air pollution? A) We 
continue on our present course or B) millions of cars that were 
formerly burning gas, but are now producing zero emissions from energy 
produced by several new coal, nuclear and renewable generating plants. 
The answer is B), which also results in a much cleaner environment. 
Thousands of Americans will be employed, using American energy and 
technology to meet American demand.
    One can follow this logic train through most of our nation's energy 
needs. Unfortunately, NEPA, in my estimation, is being misused and the 
legal and regulatory hurdles imposed have made what I outlined a near 
impossibility. Witness the many attempts of trying to establish 
renewable sources of energy--wind generation--in Cape Cod, 
Massachusetts and here in Virginia, only to have permits blocked or the 
expenses associated with compliance too great to make an otherwise 
worthy project unfeasible. It's no wonder we are in this plight.
    Madam Chairman, I submit that we must change this system. We have 
done much in Virginia, taking a leadership role in attempting to open 
our offshore natural gas resources to development and working on a new 
energy strategy. But you in the federal government must act to provide 
a framework so that our critical energy needs can be met. From the 
factory worker to the farmer to the fixed-income retiree trying to keep 
his or her house warm, we look to your leadership.
    Once again, thank you for the opportunity to speak before you 
today. I look forward to answering any questions you may have.
    NOTE: The article submitted for the record is copyrighted and has 
been retained in the Committee's official files.
                                 ______
                                 
    Ms. McMorris. Thank you very much.
    Mr. Holloway.

  STATEMENT OF ALVERCE HOLLOWAY, INTERNATIONAL BROTHERHOOD OF 
                 FIREMEN AND OILERS, LOCAL 176

    Mr. Holloway. Thank you, Madam Chairman, Congressman Drake. 
My name is Alverce Holloway. I am an hourly employee at 
International Paper and a member of the Pulp----
    Ms. McMorris. Hold the mike a little closer.
    Mr. Holloway. Sorry, I apologize. My name is Alverce 
Holloway. I am an employee of International Paper and a member 
of the Pulp & Paper Resource Council. I am married with two 
children and one grandchild.
    My paper mill which was built in Franklin and built and 
owned by one family, the Camp family, in 1930 has also employed 
my father and my brother, with approximately 75 years of 
working for the paper mill in Franklin, now owned by 
International Paper.
    I believe it is a good idea that we are holding a hearing 
now on NEPA to allow the Committee to hear different views as 
to what is right and what is wrong with NEPA. Let me explain 
what the Pulp & Paper Resource Council is.
    The Pulp & Paper Resource Council is a national grassroots 
labor coalition associated with fiber supply, the Endangered 
Species Act, and the environment in a way that promotes 
knowledge and political activism so that we may influence 
legislation that affect our jobs.
    The Pulp & Paper Resource Council is the only national 
grassroots labor organization solely dedicated to the 
representation of natural resource-based workers. As an active 
member of the PPRC, I will help unify the voice of over 1.5 
million workers throughout the United States.
    In the early 1990s, the extreme environmentalists were 
determined to shut down forest industries by using the ESA. 
They stated that the spotted owl could not live in new growth 
forest. This resulted in many manufacturing industries being 
shut down. Thousands of jobs and lucrative tax bases were lost.
    We now know that the spotted owl thrives in new growth 
forests. However, because the forest industry did a poor job of 
explaining our issues, communities and thousands of individuals 
and their livelihoods were changed forever. This is why the 
PPRC was formed, so that decisions being made by legislators 
would be made after hearing our concerns and scientific facts 
from within the forestry community.
    I want it to be understood that the Pulp & Paper Resource 
Council does not want NEPA eliminated. However, based on the 
time it was introduced over 30 years ago, changes need to be 
made. We feel that NEPA does need to be streamlined and 
modernized.
    NEPA's intent was to bring a balance to the environment and 
industry, but it seems that the message has been lost. NEPA is 
being used as a tool to hinder forestry production, just as the 
Endangered Species Act and the New Source Review is currently 
doing.
    The American pulp and paper industry is greatly challenged 
by competition of less developed countries with much lower 
costs for production for things such as natural gas. Part of my 
mill's production is based on natural gas, a fuel that 
increased greatly in price in the last year. Higher natural gas 
costs can lead to less paper production in Franklin, Virginia, 
and cost of fuel--less fuel, less jobs for people like myself.
    NEPA has been used by lawyers and environmental groups to 
stop and delay natural gas exploration at the expense of 
manufacturing workers. The Resources Committee needs to find a 
way to minimize litigation which only produces pink slips for 
hourly workers.
    I would like to reiterate that NEPA is a good program, 
providing it is used for its intended purpose. We cannot 
continue to let hundreds of acres of timber sales turn into a 
three-foot stack of paperwork as a result of ending up in 
courts because of litigations.
    The forest product industry is an industry under fire. We 
face major obstacles every day. We face an uphill battle 
because of the cost of growing imports and the strict 
environmental laws in the United States.
    All we ask for is a level playing field. We ask the Federal 
and the State government to help us remain competitive in a 
global market. When the companies we work for decide it is no 
longer profitable to operate here in the United States, they 
will join those others who have chosen to operate out of this 
country where there is less restrictions. We need to keep our 
manufacturing industries in the United States where we have 
environmental laws implemented for the best interest for our 
country.
    Thank you.
    [The prepared statement of Alverce Holloway follows:]

   Statement of Alverce Holloway, Jr., Pulp & Paperworkers Resource 
Council Member, International Brotherhood of Firemen and Oilers, Local 
                                 #176,

    Mr. Chairman and Members of the Committee, my name is Alverce 
Holloway, Jr. I am an hourly employee at International Paper and a 
member of the Pulp & Paperworkers Resource Council (PPRC). I'm married 
with two children and one grandchild.
    Thank you to the committee for allowing me the opportunity to 
testify. I believe that it's a good idea that you are holding a hearing 
on NEPA to allow the committee to hear different views on what is right 
and what is thought wrong with NEPA.
    Let me explain who the Pulp & Paperworkers Resource Council are. 
The Pulp & Paperworkers Resource Council is a national grassroots labor 
coalition associated with fiber supply, the Endangered Species Act, and 
the environment in a way that promotes knowledge and political activism 
so that we may influence legislation that affect our jobs. The PPRC is 
the only national grassroots labor organization solely dedicated to the 
representation of natural resource-based workers. As an active member 
of the PPRC, I will help unify the voice of over 1.5 million workers 
throughout the United States.
    In the early 1990's, the extreme environmentalist were determined 
to shut down forest industries by using ESA. They stated that the 
spotted owl could not live in new growth forest. This resulted in many 
manufacturing industries shut down, thousands of jobs and lucrative tax 
bases were lost. We now know that the spotted owl thrives in new growth 
forest. However, because the forest industry did a poor job of 
explaining our issues, communities and thousands of individuals and 
their livelihoods were changed forever. This is why the PPRC was formed 
so that decisions being made by legislators would be made after hearing 
our concerns and scientific facts from within the forestry community.
    I want it to be understood that the Pulp & Paper Resource Council 
does not want NEPA eliminated; however, based on the time it was 
introduced, over 30 years ago, changes need to be made. We feel that 
NEPA does need to be streamlined and modernized.
    NEPA's intent was to bring a balance between the environment and 
industry, but it seems that the message has been lost. NEPA is being 
used as a tool to hinder forestry production just as the Endangered 
Species Act and the New Source Review is currently doing.
    I would like to reiterate that NEPA is a good program providing it 
is used for its intended purpose. We cannot continue to let hundreds of 
acre timber sales turn into a 3 ft. stack of paperwork, as a result, 
ending up in the courts because of litigations.
    Forest product industry is an industry under fire. We face major 
obstacles everyday. We face an uphill battle because of the cost of 
growing imports and the strict environmental laws in the United States. 
All we ask for is a level playing field. We ask federal and state 
governments to help us to remain competitive in a global market. When 
the companies we work for decide that it is no longer profitable to 
operate in the United States, they will move overseas and by the way 
some companies already have. We need to keep our manufacturing 
industries in the United States where we have environmental laws 
implemented for the best interest for our country.
                                 ______
                                 
    Ms. McMorris. OK. Thank you.
    We are going to take a quick break.
    Ms. Drake. I would just ask Chairman McMorris if we could 
take a break just for a moment so we could recognize that ODU's 
President, Roseann Runte, is here, and we want to thank her 
very much for her hospitality and for allowing this public 
meeting to take place. Thank you, Dr. Runte.
    Ms. McMorris. And just to make sure that it all seems fair, 
we will allow you a little extra time. We will move it to six. 
I think we will have enough time to get through everyone in a 
timely fashion. Thank you.
    Mr. Shafer, please continue.

STATEMENT OF JOHN H. SHAFER, INTERSTATE NATURAL GAS ASSOCIATION 
                           OF AMERICA

    Mr. Shafer. Madam Chairwoman, Congressman Drake, it is a 
pleasure to be here today, coming up from Louisiana to 
represent my company, NiSource, as well as the Interstate 
Natural Gas Association of America, INGAA.
    Natural gas markets are very sensitive to supply 
disruptions, such as the one caused by Hurricane Katrina just 
two weeks ago. Even though assessment is preliminary, damage 
from the storm to some energy infrastructure could take months 
to repair.
    Offshore production in the Gulf is gradually coming back on 
line, but processing plants on shore are a bottleneck, and may 
be out for as long as six months or more. These processing 
plants are critical to the supply chain. It becomes more 
critical as we look to winter months ahead and increasing 
demand.
    Underground storage is also vital. About half the natural 
gas demand is satisfied on winter peak days by withdrawing 
supplies from underground storage reservoirs that have been 
filled with extra gas on nonpeak days. The injection of storage 
has been slowed, but it is now improving. Any delays in the 
establishment in the flow of energy could be very costly.
    The recommendations INGAA brings today will not alter the 
objectives of NEPA: Diminish environmental protection or lower 
any existing environmental quality standards. Some of these 
solutions are found in part in the Energy Policy Act of 2005, 
at least as it relates to natural gas projects under 
jurisdiction of the Federal Energy Regulatory Commission.
    INGAA suggests that these solutions should be applied to 
all types of energy project reviews under NEPA, not just FERC 
approved natural gas projects.
    Recommendation 1: Establish a clearly defined lead agency 
for each type of proposed project. Eliminate the conflict among 
agencies as to who has the lead, and it should be an agency 
that has primary responsibility for the approval of the 
proposed development project.
    Recommendation 2: Allow the lead agency to institute 
specific timelines for NEPA reviews. An agency's inaction can 
delay and even kill a project. Empower the lead agency to set a 
schedule. Establish joint meetings and reviews, and the process 
becomes more simultaneous rather than sequential. If a 
cooperating agency does not act within the published timeframe, 
then their approval is assumed.
    Recommendation 3: Ability to enforce a lead agency 
deadline. There must be a mechanism that allows the lead agency 
to enforce the published schedule. The enforcement must enable 
the lead agency to presume that all appropriate and applicable 
comments are in when the deadline passes.
    Recommendation 4: Creation of a consolidated record for a 
NEPA review on all energy projects. There should be only one 
NEPA record for review, one environmental impact assessment, 
and all permitting decisions drawn from that basis. Allowing 
the development of separate NEPA documents is time consuming, 
costly, and unfair to the developer and the agencies that 
cooperate.
    Recommendation 5: Streamline subsequent reviews and permit 
approvals for projects managed pursuant to the Pipeline Safety 
Improvement Act 2002. This new Act will require significant 
excavation activities for inspection and possible repairs of 
pipelines. It may even require a large volume of permits. Many 
pipelines already have an environmental assessment/
environmental impact study on that facility that may need some 
safety work. NEPA should recognize previous studies and allow 
pipeline operators to move expeditiously to perform inspections 
and repairs. For facilities who have no environmental 
assessment or study, NEPA should allow for expedited analysis 
of impacts by lead agency and establish a streamlined schedule.
    Recommendation 6: Make a ``Team Permitting'' opportunity 
available on a voluntary basis. This could be patterned after 
the team permitting concept established in the State of 
Florida. It would promote early input by all stakeholders.
    Under team permitting, a lead agency, cooperators and 
others would work with the applicant to achieve acceptable 
permit conditions and mitigation. The group would also work 
proactively with the applicant to set ``net ecosystem 
benefits'' that are pledged and will be furnished as soon as 
all approvals are in.
    Recommendation 7: Streamline NEPA permit reviews and 
approvals by adopting a process similar to the one used 
pursuant to the Comprehensive Environmental Response, 
Compensation, and Liability Act, CERCLA or Superfund. NEPA 
reviews could be managed in a manner similar to the way 
projects are handled under CERCLA.
    The CERCLA law required EPA or principal responsible 
parties to respond to releases of hazardous constituents. In 
the beginning, administrative requirements imposed by 
jurisdictional agencies were delaying the cleanup of these 
sites. Legislation was passed to require EPA to impose all 
substantive requirements of existing environmental law, but 
exempted those projects from the administrative aspects of 
other agencies.
    A NEPA lead agency could act much like the EPA and serve as 
a place where the applicant for energy projects would seek NEPA 
clearance and move forward. An innovative, one-stop shopping 
NEPA approach could significantly streamline the process. When 
the NEPA review would be complete, it would be deemed that 
approvals had been received for all permits necessary to 
implement the development.
    Let me conclude by thanking the Committee for allowing me 
to testify today. I will be happy to answer any of your 
questions. Thank you.
    [The prepared statement of John H. Shafer follows:]

  Statement of John H. Shafer, Manager, Sustainable Natural Resource 
   Practices, NiSource Corporate Services Company, on behalf of the 
             Interstate Natural Gas Association of America

Opening Remarks:
    My name is John H. Shafer and I reside in Benton, Louisiana. I am 
currently employed by NiSource Corporate Services as Manager of 
Sustainable Natural Resource Practices. As an energy sector 
professional, I have over 35 years of experience in environmental and 
regulatory planning and permitting. This experience includes the 
siting, permitting and construction of petroleum and natural gas 
facilities such as pipelines and terminals. I also served as Assistant 
Director of Environmental Policy at the White House in 1993, during 
which time I created the President's Council on Sustainable 
Development.
    NiSource Inc. is a fully integrated energy company and it engages 
in natural gas transmission, storage and distribution, as well as 
electric generation, transmission and distribution. NiSource operating 
companies deliver energy to 3.7 million customers located within the 
high demand energy corridor that runs from the Gulf Coast through the 
Midwest to New England. NiSource pipelines and distribution 
subsidiaries are active in several Mid-Atlantic States such as 
Maryland, Virginia and West Virginia. NiSource distribution companies 
are experiencing growth in the Mid-Atlantic region and its pipelines 
are experiencing opportunities for growth to meet market demand.
    NiSource is a member of the Interstate Natural Gas Association of 
America (INGAA) and I am pleased to appear here today to represent 
INGAA in these proceedings. INGAA is a trade organization that 
represents virtually all of the interstate natural gas transmission 
pipeline companies operating in the U.S., as well as comparable 
companies in Canada and Mexico. Its members transport over 95 percent 
of the nation's natural gas through a network of 180,000 miles of 
pipelines.
    First, I would like to thank you, Representative McMorris for your 
leadership in Chairing this Task Force, and House Resources Committee 
Chairman Richard Pombo, and the other Task Force Members and the staff 
for your willingness to review NEPA and look for opportunities to 
improve the environmental review and mitigation process.
    Many of you are acutely aware that natural gas markets are 
currently in a delicate balance of supply and demand, which is driving 
up prices. This tight supply/demand balance makes the natural gas 
market even more sensitive to supply disruptions such as the one that 
occurred with Hurricane Katrina two weeks ago. Our industry is still 
assessing the damage from the storm, and we will clearly be working for 
some months on repairs, but I would like to share some initial thoughts 
today.
    Natural gas pipelines in the Gulf region did sustain some damage as 
a result of Hurricane Katrina, although most of the damage was minor 
and natural gas deliveries to other regions of the country have largely 
continued. However, a number of off-shore production facilities were 
damaged, and perhaps most troubling, several key natural gas processing 
facilities in the area sustained major damage. While off-shore 
production in the Gulf is gradually coming back on line, these 
processing plants may be out for as long as six months. Natural gas 
processing is critical, especially during cold weather periods, to 
ensure that the gas has acceptable quality and does not damage 
pipelines and end-use equipment. Getting these processing facilities 
back into operation before the winter heating season should be a 
priority.
    In addition, the nation's natural gas storage has been impacted by 
the hurricane. Natural gas storage is a critical component to meeting 
winter peak demand; on the coldest days of the year, a given market 
area may be meeting 30 to 50 percent of its natural gas demand through 
storage withdrawals. Therefore, it's important that gas storage 
reservoirs be filled during the fall in order to be ready for winter. 
With gas production and processing at reduced levels, however, current 
storage injections have slowed, and in fact some storage in the Gulf 
region has already been withdrawn in order to meet immediate demand. 
This is yet another reason to get pipelines, production and processing 
back on line as soon as possible.
    As you can see, the delicate balance that exists for the natural 
gas industry to meet energy demand in the U.S. is reason enough to 
eliminate unnecessary permitting delays for gas infrastructure. Our 
economic security often depends on the timely expansion, or repair, of 
these energy facilities. In fact, a study completed by the INGAA 
Foundation last year, which looked at delays in needed natural gas 
infrastructure projects, suggested that a two-year delay in getting 
such projects built would cost American consumers $200 billion by 2020. 
Let me repeat that: $200 billion by 2020, and that is only for delays, 
not project cancellations. I would be happy to provide a copy of this 
report to the Committee for the record.
    This leads me to the topic of today's hearing, the National 
Environmental Policy Act (NEPA). In the 35 years since its enactment, 
compliance with NEPA has taken progressively longer and longer for 
natural gas projects. We do not, however, propose to alter the 
objectives of the NEPA. On the contrary, NEPA remains an important 
environmental safeguard, balancing the needs of economic development 
with the need to protect environmental quality. Our suggested solutions 
deal with the implementation of NEPA, and in particular, the ways 
different federal and state permitting agencies should work together 
under the Act.
    I am happy to report that a number of these solutions were part of 
the recently enacted Energy Policy Act of 2005 (Public Law 109-58), at 
least with respect to natural gas projects approved by the Federal 
Energy Regulatory Commission (FERC). Our association has grappled with 
the issue of NEPA compliance for many years, looking specifically at 
ways to reduce unnecessary delays and improve cooperation among the 
many federal and state agencies that might be reviewing a proposed 
project. These suggestions do not alter existing environmental quality 
standards. They do, however, increase the level of accountability, 
cooperation and efficiency among permitting agencies--hardly an unfair 
or unreasonable set of expectations. We hope the Committee will look at 
extending these ideas to all types of energy project reviews under 
NEPA, not just FERC-approved natural gas projects. Here are our 
suggestions:

Recommendation 1--Establish a clearly defined ``lead agency'' for each 
        type of proposed project.
    On any given proposed project for development, there can be 
conflict among agencies as to who should take the lead. There does need 
to be one lead agency for each type of project though, and direction 
from Congress or the Council on Environmental Quality (CEQ) could 
resolve such conflict before it arises. For example, Section 313 of the 
new Energy Policy Act designates the FERC as the lead agency under NEPA 
for all projects requiring an authorization or approval pursuant to the 
Natural Gas Act; in other words, all interstate natural gas pipelines, 
storage facilities, or LNG import terminals. The lead agency should be 
one that has primary responsibility for the ultimate approval of an 
activity or project.

Recommendation 2--Allow the lead agency to institute specific timelines 
        for NEPA reviews.
    This recommendation is important to keeping the review process 
manageable while providing some time certainty to applicants. While 
most agencies are willing to work with the sister organizations in a 
cooperative manner, our own experience in the gas pipeline industry is 
that some agencies will use inaction as a way to delay and even kill a 
project. If the lead agency is empowered to set a schedule, and to 
establish joint agency meetings and reviews, then the process becomes 
more cooperative and efficient as agencies negotiate face-to-face 
rather than from some distance. Here again, Section 313 of the Energy 
Policy Act allows the FERC, for pipeline and LNG projects, to set such 
a schedule. However, the Act also states that the FERC should 
incorporate any existing timeframes any agency might have to reach a 
decision on a permit. An amendment to NEPA should establish that the 
lead agency has overall authority to establish a time schedule for 
review and all cooperating agencies must act within that time frame.

Recommendation 3--Ability to enforce a lead agency deadline.
    Ideally, the ability to set a deadline should be coupled with a way 
to enforce the deadline, so that agencies take a lead agency deadline 
seriously. Several earlier versions of the Energy Policy Act contained 
a provision requiring cooperating agencies to either act within the 
FERC-approved deadline (for natural gas projects), or else have their 
approval ``conclusively presumed.'' Both the Coastal Zone Management 
Act (CZMA) and the Clean Water Act contain deadlines for state 
enforcement agencies to either make permitting decisions or have their 
approval assumed, so the proposals in the energy bill debate weren't 
all that unusual. Nonetheless, the Energy Bill Conference Committee 
decided to be more conciliatory, by instead allowing an applicant to 
appeal an agency permitting delay to the U.S. Court of Appeals for the 
D.C. Circuit. We believe there must be a mechanism applicable to all 
involved agencies that allows the lead agency to enforce its schedules.

Recommendation 4--Creation of a consolidated record for a NEPA review 
        and all permitting decisions.
    The lead agency should be charged with the responsibility to 
develop a consolidated record for the NEPA review and EIS development, 
and all permitting decisions required as a result. Once again, this 
encourages the various federal and state agencies to work together in a 
cooperative fashion to develop a consolidated record. In order to make 
sure that agencies take this requirement seriously, Congress should 
require that this consolidated record be the record used for all 
subsequent appeals or Administrative reviews.
    A consolidated record is important. Our industry has found that 
some agencies have ``sat out'' on FERC NEPA reviews of proposed 
projects, and then subsequently appealed FERC's approval decisions and 
attempted to develop a de novo review of all the facts previously 
considered by FERC and the cooperating agencies. Developing an entirely 
new record, when ample opportunity is given to participate in the 
development of the first one, is time-consuming and unfair to all of 
the agencies that did participate cooperatively. This consolidated 
record requirement is a part of the Energy Policy Act with respect to 
natural gas projects; it should be considered for other NEPA approvals 
as well.

Recommendation 5--Streamline subsequent reviews and permit approvals 
        for projects managed pursuant to the Pipeline Safety 
        Improvement Act.
    The natural gas industry is facing a huge amount of work to comply 
with the safety regulations codified pursuant to the passage, in 2002, 
of the Pipeline Safety Improvement Act. The Act created specific 
timeframes for all natural gas transmission pipelines to assess (or 
inspect) the integrity of all pipeline located in populated areas. By 
December of 2012, all pipelines located in these ``high consequence 
areas'' must have a baseline assessment of its integrity. These 
inspections, and any subsequent repairs, will require significant 
excavation activity, triggering permit requirements. The ability to 
obtain the necessary permits, so that this inspection/repair activity 
can be completed pursuant to the Congressionally mandated timeframe, 
will be critical to the success of the program.
    Most of the effected pipelines have already developed an EIS years 
ago, as part of any construction or expansion activity. We need to make 
certain that the permitting process for the integrity management 
program recognizes previous work, and gives pipeline operators some 
flexibility to meet requirements that, after all, have been mandated 
for safety purposes by Congress.
    In the event that a pipeline has work that must be performed 
pursuant to compliance with the regulations under the Pipeline Safety 
Improvement Act and that particular pipeline segment has never had an 
EIS performed on it's facilities, NEPA should allow for expedited 
analysis of impacts by the lead agency and the establishment of a 
streamlined review schedule for all cooperating agencies that meets the 
safety requirements imposed by DOT, OPS, or PHMSA.

Recommendation 6--Make a ``Team Permitting'' opportunity available on 
        voluntary basis.
    This voluntary process, would be one similar to the ``Team 
Permitting'' concept employed within the State of Florida, pursuant to 
Chapter 403.075, Florida Statutes, for early coordination with 
regulatory agencies, local governments, and special interest groups for 
development related permitting.
    An amendment to NEPA could include a section to establish the 
opportunity for a developer to engage a lead agency, other regulatory 
stakeholders, and interested parties in an open process in which all 
NEPA issues could be identified and dealt with to the satisfaction of 
those involved. In this voluntary process, an applicant seeking any 
federal permit applicable for NEPA review could enter into a non-
binding agreement with the federal ``lead agency.'' This would be 
initiated by the applicant and would be only on a voluntary basis. Once 
initiated by the applicant, the lead agency would notify all potential 
cooperating agencies of the opportunity to join this collaborative and 
advisory ``Team Permitting Group.'' A federal notice of such meetings 
of the group would be published and any interested party could join the 
review process (this could include any environmental group or other 
interested party). A schedule for review and processing of all permits 
would be developed by the lead agency and the Team Permitting group and 
all milestone dates for processing would be met by the applicant as 
well as the agencies involved.
    In Team Permitting all permitting agencies and interested parties 
would meet together and work simultaneously on the technical aspects of 
the proposed development and to reduce the overall total impact of the 
project. This would also include any necessary mitigation. This 
collaborative effort on the technical aspects of the proposal would 
greatly help the various regulatory permitting personnel who too often 
work in a silo effect as they assess the impact of the proposed 
development and any mitigation that might be required. In order to 
enter into this voluntary Team Permitting process, the applicant would 
pledge, in the beginning, to do what will be referred to as ``net 
ecosystem benefits'' which will be over and above any level of 
mitigation assigned by the various permitting agencies. No ``net 
ecosystem benefits'' would be performed by the applicant until all 
timely permits are issued, required mitigation agreed to by the 
parties, in accordance with the schedule agreed to in the beginning by 
the Team Permitting Group. Their respective regulatory division will 
issue all individual required environmental permits from federal 
regulatory agencies, from any state government, as well as any local 
government. Again, the agreed to ``net ecosystem benefits'' will not be 
performed by the applicant unless all permits are issued in accordance 
with the agreed to schedule.

Recommendation 7--Streamline NEPA permit reviews and approvals by 
        adopting a process similar to the one used pursuant to CERCLA 
        (or Superfund).
    Permitting for projects undergoing NEPA review (especially those 
that have an existing EIS) could be managed in a manner similar to the 
way in which permits are expedited pursuant to CERCLA. In the early 
1980's, Congress faced a similar situation with response actions needed 
under the Comprehensive Environmental Response, Compensation, and 
Liability Act (CERCLA), commonly known as Superfund. This legislation 
required the EPA or potentially responsible parties to respond to 
releases of hazardous constituents. During the initial implementation 
of CERCLA, it was quickly recognized that Federal, State or local 
requirements imposed significant delays to this critical work. To avoid 
these delays, legislation was passed to require EPA to impose all 
substantive requirements of these rules, but exempted the projects from 
the administrative aspects of Federal, State and local requirements. 
Natural gas facilities could be sited, permitted, constructed, repaired 
and upgraded, pursuant to an amended NEPA that would have language 
similar to the language contained in Section 121 of CERCLA.
    Under this revised process, during the NEPA review the lead Agency 
would act in a manner similar to the role EPA plays in authorizing work 
under CERCLA. Applicants would be required to discuss and comply with 
substantive requirements of all applicable, relevant and appropriate 
requirements (known as ARARs under CERCLA). The public and any affected 
Agencies would have an opportunity to comment on all planned work. 
However, the approval under NEPA would also constitute approval for all 
permits necessary to implement the work. This would greatly streamline 
the process to gain approval for needed maintenance or new construction 
while still insuring all technical requirements are met.
    Let me conclude by thanking the Committee for allowing me to 
testify today. I would be happy to answer any questions you might have.
                                 ______
                                 
    Ms. McMorris. Great. Thanks for being here.
    Mr. Kelman.

     STATEMENT OF GARY F. KELMAN, NATIONAL ASSOCIATION OF 
                  ENVIRONMENTAL PROFESSIONALS

    Mr. Kelman. Madam Chairwoman, Congressman Drake, good 
afternoon. I am Gary Kelman, President of the National 
Association of Environmental Professionals. I appreciate the 
invitation to testify before the Task Force.
    We have submitted written testimony to the Task Force, 
which includes an attachment that addresses interpretations of 
NEPA by Federal courts. NAEP is a national professional 
organization with approximately 1300 members, thousands of 
affiliated professionals with chapters throughout the United 
States. NAEP members include professionals with expertise in a 
broad cross-section of engineering, scientific, planning, 
technical, legal and academic disciplines. Our members work in 
and with government agencies at the Federal, State and local 
levels, as well as in private practice with contractors and 
consulting firms, and also in universities and other academic 
positions nationwide.
    NAEP members have been involved in implementing NEPA since 
its enactment. Such activities have included preparation and 
review of NEPA documents, development of training programs for 
other NEPA practitioners, and providing expert technical and 
policy assistance to both government and private sector 
clients.
    NEPA and its implementation are frequent topics in our 
quarterly journal, Environmental Practice which is published by 
Cambridge University Press. A special December 2003 issue was 
devoted entirely to NEPA. NAEP welcomes the opportunity to 
share with you our collective professional experience with 
NEPA.
    Our position with regard to NEPA may be summarized as 
follows: NAEP supports the environmental analysis process 
established by NEPA, including the public's right to 
participate in that process. NAEP opposes any revisions of NEPA 
that would likely be detrimental to NEPA's established purpose, 
policy, and procedures.
    NAEP supports and intends to help implement the 
recommendations of the CEQ NEPA Task Force for modernizing NEPA 
that were made in 2003. NAEP recommends that the Congress 
mandate significant increases in staffing, funding, and 
training to enable CEQ and the Federal agencies to do more 
efficiently and effectively fulfill their responsibilities for 
compliance with NEPA.
    NAEP believes that it is essential to preserve and maintain 
the role of judicial review as the primary external NEPA 
compliance mechanism. The best way to reduce NEPA related 
litigation is to improve existing NEPA capabilities within the 
agencies.
    In particular, I would like to emphasize the following: 
Many of the allegations raised against NEPA in recent years 
stem not from either NEPA but from government agencies having 
failed to follow adequately the clear language and intent of 
both of these documents. Nothing in either NEPA--in NEPA 
requires agencies to take years to complete environmental 
studies or to produce multi-volume documents or to spend 
millions of dollars to do so.
    Furthermore, the record of NEPA litigation shows that in 
most of the court cases that agencies have lost, the root cause 
has been their failure to perform the basic planning functions 
that NEPA requires.
    In addition, we strongly recommend that one or more 
additional professional positions be established at CEQ to 
provide the agencies with more ongoing NEPA related technical 
advice, policy guidance, and coordination. At present, only one 
professional staff member is assigned this function full time, 
and must deal with more than 80 Federal agencies subject to 
NEPA. There were as many as six at CEQ in the past. We believe 
that additional CEQ oversight can and should help the agencies 
to be more efficient and more effective in the conduct of their 
NEPA compliance, and should help reduce unnecessary delays, 
expense and litigation.
    The Task Force should also conduct an evaluation of the 
professional staff levels, funding opportunities for training 
and advancement, and workloads in the NEPA compliance offices 
in the Federal agencies, and should make appropriate 
recommendations for improving their capabilities.
    In the past several years, many NEPA offices have been 
subjected to reductions in both their budget and staff 
positions. NAEP believes that these cuts, sometimes up to 50 
percent, have contributed to a decline in the quality of NEPA 
documents and to unnecessary delays and costs in implementing 
the NEPA process.
    For its part, NAEP intends to continue working with CEQ and 
the agencies to help improve the NEPA process. We would, for 
example, be pleased to contribute to a ``Citizens Guide to 
NEPA'' and/or to help develop additional administrative 
guidance to make NEPA's environmental evaluation and review 
process more effective and efficient and less costly and time 
consuming.
    In conclusion, NAEP has supported and continues to advocate 
improvements in the implementation of one of our nation's most 
important environmental laws. We are, however, concerned that 
any Congressional recommendations for changes in the existing 
NEPA process be based on a careful, objective analysis of 
facts, rather than on vague allegations of problems that may 
result from causes other than the requirements of NEPA.
    NAEP's view is that the recommendations we have described 
here and in our written testimony should be implemented, and 
their effectiveness should be objectively evaluated before 
other potentially unnecessary or counterproductive legislative 
actions are pursued.
    [The prepared statement of Gary F. Kelman follows:]

            Statement of Gary F. Kelman, C.E.P., President, 
          National Association of Environmental Professionals

    This statement is submitted to the U.S. House Resources Committee 
Task Force on Improving the National Environmental Policy Act (NEPA) on 
behalf of the National Association of Environmental Professionals 
(NAEP), a national professional organization of approximately 1,300 
members; thousands of affiliated professionals; and state, regional and 
student chapters throughout the United States. NAEP members include 
professionals with expertise in a broad cross-section of engineering, 
scientific, planning, technical, legal, and academic disciplines. Our 
members work in and with government agencies at the federal, state and 
local levels as well as in private practice with contractors and 
consulting firms and also in universities and other academic positions 
nationwide.
    NAEP members have been involved in implementing the National 
Environmental Policy Act from the 1970s to the present. Such activities 
have included preparation and review of NEPA documents, development of 
training programs for other NEPA practitioners, and providing expert 
technical and policy assistance to both government and private-sector 
clients. NAEP maintains a quarterly professional journal, Environmental 
Practice, published by Cambridge University Press, which contains 
technical articles, case studies, news, and information. NEPA and its 
implementation are frequent topics in the journal; a special December 
2003 issue was devoted entirely to NEPA.
    NAEP welcomes the Congressional Task Force's interest in reviewing 
NEPA and in developing recommendations for improving the way the law 
and its regulations are being implemented by the federal agencies and 
their state, tribal, and local cooperating agencies. We also welcome 
the opportunity to share with you our collective professional 
experience with NEPA, the NEPA Regulations of the Council on 
Environmental Quality (CEQ), and the practice of NEPA in the agencies. 
Our position with regard to NEPA may be summarized as follows:
NAEP's Position on Improving the NEPA Process
    1.  NAEP unequivocally supports the environmental analysis process 
established by NEPA and the regulations of the CEQ, including the 
public's right to participate in that process.
    2.  NAEP opposes any revisions of NEPA or the CEQ regulations that 
would likely be detrimental to NEPA's established purpose, policy, and 
procedures.
    3.  NAEP supports and intends to help implement the recommendations 
of the CEQ NEPA Task Force for ``modernizing NEPA'' that were made in 
2003.
    4.  NAEP recommends that the Congress mandate significant increases 
in staffing, funding, and training to enable CEQ and the federal 
agencies to more efficiently and effectively fulfill their 
responsibilities for compliance with NEPA.
    5.  NAEP believes that it is essential to preserve and maintain the 
role of judicial review as the primary external NEPA compliance 
mechanism. The best way to reduce NEPA-related litigation is to improve 
existing NEPA capabilities within the agencies.
    NAEP strongly supports the purpose and intent of NEPA, as expressed 
in Section 2 and Title I of NEPA itself, as well as in Part 1500 of the 
CEQ's NEPA Regulations. The environmental analysis process established 
by NEPA was intended as a way to assure our citizens that federal 
agencies, before taking actions that could have significant 
environmental impacts, would assess those potential impacts, including 
reasonable alternatives that might avoid or minimize adverse effects, 
and invite public review and comment on the adequacy of the results of 
that analysis.
    In our experience, NEPA has resulted in thousands of improvements 
to proposed federal projects, plans, and programs and has helped to 
protect and maintain the quality of our human environment. NEPA's 
environmental analysis requirement, first adopted here in the United 
States, has proven so beneficial that it has been widely emulated 
around the world. Various adaptations of NEPA are now established law 
in more than 100 other countries and have also been adopted by the 
World Bank and most other multilateral development institutions. Having 
a pre-decision, public, environmental impact analysis process is now 
considered a key measure of democracy by citizens of many nations.
    Few, if any, laws have ever been implemented perfectly or without 
controversy. Although Title II of NEPA established the Council on 
Environmental Quality and charged it with, among other duties, 
overseeing the implementation of NEPA's requirements by federal 
departments and agencies, CEQ initially lacked binding legal authority 
for its guidance, which meant that compliance with NEPA rested 
primarily with the federal courts. This deficiency was addressed in 
1978 when CEQ published its Regulations (now codified at 40 C.F.R. 
Parts 1500-1508). Most federal agencies, state and local governments, 
business leaders, and environmental organizations welcomed the policy 
and procedural guidance in these regulations, which clarified the 
process and helped restrain inappropriate litigation.

NEPA is Not the Problem
    In NAEP's view, many of the allegations raised against NEPA in 
recent years stem not from either NEPA or the CEQ Regulations, but from 
government agencies having failed to follow adequately the clear 
language and intent of both these documents. Nothing in either NEPA or 
the CEQ Regulations requires agencies to take years to complete 
environmental studies, or to produce multi-volume documents, or to 
spend millions of dollars to do so. Furthermore, the record of NEPA 
litigation shows that in most of the court cases that agencies have 
lost, the root cause has been their failure to perform the basic 
planning functions that NEPA requires, i.e., to analyze objectively the 
potential impacts of their actions, including reasonable alternatives, 
and to prepare the required public documents--either an Environmental 
Impact Statement (EIS) or a shorter Environmental Assessment (EA). 
Attempts to defend such failures have often consumed more time and 
funds than it would have taken to produce at the outset the NEPA 
analysis and documents that the courts eventually required.
    In an effort to review and improve the NEPA process, CEQ itself 
established an interagency NEPA Task Force in the spring of 2002. This 
Task Force, composed of experienced NEPA practitioners from multiple 
federal agencies, published its report, entitled ``Modernizing NEPA 
Implementation,'' in September 2003. This report made many 
recommendations for improving the NEPA process, organized under six 
general themes. None of those recommendations involves changes to NEPA 
or to the CEQ Regulations. The NAEP supports the findings of the CEQ 
Task Force; it is our position that the recommendations contained in 
its report should be implemented without delay, and that the Congress 
should provide CEQ and the agencies with the additional resources that 
will be needed to do so.

NAEP's Position on Specific Recommendations of CEQ's NEPA Task Force
    The most important of these recommendations, in our opinion, is 
that one or more additional professional positions be established at 
CEQ to provide the agencies with more ongoing NEPA-related technical 
advice, policy guidance, and coordination. At present only one 
professional staff member is assigned this function full-time, whereas 
in past administrations as many as six full-time professionals on the 
CEQ staff performed these essential duties in dealing with the more 
than 80 federal agencies subject to NEPA. We believe that additional 
CEQ oversight can and should help the agencies to be more efficient and 
more effective in the conduct of their NEPA compliance, and should help 
to reduce unnecessary delays, expense, and litigation. Other CEQ Task 
Force recommendations that we consider to be very important are:
      CEQ should issue further guidance to the agencies 
regarding Environmental Assessment (EA) documents. This guidance should 
describe minimum requirements for short EAs, including requirements for 
public involvement, alternatives, impact avoidance and mitigation, and 
clarify that the size of EAs should be commensurate with the size and 
complexity of environmental issues, public concerns, and project scope.
      CEQ should issue guidance for better integrating the NEPA 
process with the Endangered Species Act's Section 7 consultation 
requirements, with the National Historic Preservation Act's Section 106 
consultation requirements, and with relevant requirements of other 
environmental review laws and executive orders.
      CEQ should work with the federal agency NEPA offices to 
clarify and promote consistent practices for invoking the Categorical 
Exclusion option for certain agency actions pursuant to the CEQ 
Regulations, in order to expedite the approval process for actions that 
truly have no significant adverse environmental impacts.
      CEQ should develop, in conjunction with the agencies and 
the public, a document entitled ``Citizens Guide to NEPA,'' to enable 
non-government stakeholders and other interested persons to better 
understand and to participate in the NEPA process in a timely and 
constructive manner.
      CEQ should strengthen its ``Lead Agency'' guidance so 
that projects requiring multiple federal approvals (for funding and/or 
permits) can be expedited.
    It should be obvious that CEQ will need additional professional 
staff resources to carry out these recommendations, which is why we 
urge the Congress to restore to CEQ at least some of those positions 
that have been lost over the past decade or more.
Importance of Objective Analysis of Agency NEPA Staff and Resources
    The CEQ Task Force did not provide any analysis or recommendations 
concerning the adequacy of professional staff or budgets for the NEPA 
compliance offices in the federal agencies. However, a recent 
independent review of the NEPA process in 12 different federal agencies 
(reported in the above-mentioned December 2003 special issue of our 
journal, Environmental Practice, Vol. 5, No.4) found that:
        ...the majority of the NEPA offices that we evaluated have been 
        subjected to reductions in both their budget and staff 
        positions over the past several years. In some cases, repeated 
        cuts have reduced these offices to less than half their 
        capacity of only five to ten years ago...As a result, NEPA 
        officials have repeatedly been asked to `do more with less'. 
        (R. Smythe and C. Isber, ``NEPA in the Agencies: a Critique of 
        Current Practices,'' p.292.)
    NAEP believes that these cuts have contributed to a decline in the 
quality of NEPA documents and to unnecessary delays and costs in 
implementing the NEPA process.
    Any objective Congressional review of NEPA should include an 
evaluation of the professional staff levels, funding, opportunities for 
training and advancement, and work loads in these ``front line'' NEPA 
offices, and should make appropriate recommendations for improving 
their capabilities. We urge your Task Force to conduct such an 
evaluation.

A Positive Strategy for Improving the NEPA Process
    Agency officials responsible for NEPA compliance need support and 
encouragement to do objective, professional work from the outset, 
rather than more pressure to rush through the process in order to meet 
rigid deadlines or to support predetermined decisions. These officials 
need better access to NEPA training programs and materials, to assure 
not only that their technical knowledge of NEPA policies and practices 
is current but also to inspire them to develop and apply innovative 
methods to improve the NEPA process, such as integrating the NEPA 
process with the development of Environmental Management Systems (EMS). 
EMS is a process originally developed by the private sector that 
federal agencies are now beginning to adopt as required by Presidential 
Executive Order 13148. Integration of these two processes should lead 
to improvements in both and therefore to better planning and long-term 
management of federal programs and activities.
    NAEP intends to continue working with CEQ and the agencies to help 
improve the NEPA process. We would, for example, be pleased to 
contribute to a ``Citizens Guide to NEPA'' and/or to help develop 
additional administrative guidance to make NEPA's environmental 
evaluation and review process more effective and efficient, and less 
costly and time-consuming.

Summary and Conclusion
    In conclusion, NAEP has supported and continues to advocate 
improvements in the implementation of one of our nation's most 
important environmental laws. We are, however, concerned that any 
Congressional recommendations for changes in the existing NEPA process 
be based on a careful, objective analysis of facts, rather than on 
vague allegations of problems that may result from causes other than 
the requirements of NEPA itself or CEQ's NEPA Regulations. NAEP's view 
is that the recommendations we have described above should be 
implemented, and their effectiveness should be objectively evaluated, 
before other potentially unnecessary or counterproductive legislative 
actions are pursued.

                                 ______
                                 
                      ATTACHMENT TO NAEP TESTIMONY

                 FEDERAL COURT INTERPRETATIONS OF NEPA

    Since NEPA's enactment in 1970, the courts have played a primary 
role in its interpretation and enforcement. Indeed one of the very 
first NEPA cases, Calvert Cliffs' Coordinated Committee v. Atomic 
Energy Commission, 449 F.2d 1109 (D.C. Cir. 1971), cert. denied, 404 
U.S. 942 (1972), set the tone for NEPA compliance in the federal 
agencies, stating unequivocally their obligation to comply with the 
statute ``to the fullest extent possible.''
    In this seminal case, the court was asked to review rules 
promulgated by the Atomic Energy Act on NEPA implementation. Although 
the rules required applicants for construction permits and operating 
licenses to prepare their own ``environmental reports'' and required 
the AEC's regulatory staff to prepare its own detailed statement of 
environmental costs, benefits, and alternatives, the rules did set 
limits on how environmental issues would be considered in the 
Commission's decisionmaking process.
    In its decision, the court made several important points regarding 
NEPA and federal agency compliance with the statute:
     (1)  The general substantive policy in Section 101 of NEPA is 
flexible. ``It leaves room for a responsible exercise of discretion and 
may not require particular substantive results in particular 
problematic instances.''
     (2)  The procedural provisions in NEPA Section 102 are not as 
flexible and indeed are designed to see that all federal agencies do in 
fact exercise the substantive discretion given them.
     (3)  NEPA makes environmental protection a part of the mandate of 
every federal agency and department. Agencies are ``not only permitted, 
but compelled, to take environmental values into account. Perhaps the 
greatest importance of NEPA is to require [all] agencies to consider 
environmental issues just as they consider other matters within their 
mandates.''
     (4)  To insure that an agency balances environmental issues with 
its other mandates, NEPA Section 102 requires agencies to prepare a 
``detailed statement.'' The apparent purpose to the ``detailed 
statement'' is to aid in the agencies' own decisionmaking process and 
to advise other interested agencies and the public of the environmental 
consequences of the planned action.
     (5)  The procedural duties imposed by NEPA are to be carried out 
by the federal agencies ``to the fullest extent possible.'' ``This 
language does not provide an escape hatch for footdragging agencies; it 
does not make NEPA's procedural requirements somehow 'discretionary'. 
Congress did not intend the Act to be a paper tiger.'' NEPA's 
procedural requirements ``must be complied with to the fullest extent, 
unless there is a clear conflict of statutory authority.''
     (6)  Section 102 of NEPA mandates a careful and informed 
decisionmaking process and creates judicially enforceable duties. The 
reviewing courts probably could not reverse a substantive decision on 
the merits, but if the decision were reached procedurally without 
consideration of environmental factors--conducted fully and in good 
faith--it is the responsibility of the courts to reverse.
     (7)  The AEC's interpretation of its NEPA responsibilities was 
``crabbed'' and made ``a mockery of the Act.'' Section 102's 
requirement that the ``detailed statement'' 'accompany' a proposal 
through agency review means more than physical proximity and the 
physical act of passing papers to reviewing officials. It is not enough 
that environmental data and evaluation merely ``accompany'' an 
application through the review process but receive no consideration 
from the hearing board as contemplated by the AEC regulations.
     (8)  The AEC improperly abdicated its NEPA authority by relying on 
certifications by federal, state, and regional agencies that the 
applicant complied with specific environmental quality standards. NEPA 
mandates a case-by-case balancing judgment on the part of federal 
agencies; in each case, the particular economic and technical benefits 
of an action must be weighed against the environmental costs. 
Certification by another agency that its own environmental standards 
are satisfied involves an entirely different kind of judgment and 
attend to only one aspect of the problem--the magnitude of certain 
environmental costs. Their certification does not mean that they found 
no environmental damage, only that it was not high enough to violate 
applicable standards. The only agency in a position to balance 
environmental costs with economic and technical benefits is the agency 
with the overall responsibility for the project.
     (9)  NEPA requires that an agency--to the fullest extent 
possible--consider alternatives to its actions that would reduce 
environmental damage. By refusing to consider requiring alterations of 
facilities (which received construction permits before NEPA was 
enacted) until construction is completed, the AEC may effectively 
foreclose the environmental protection envisioned by Congress.
    (10)  Delay in the final operation of the facility may occur but is 
not a sufficient reason to reduce or eliminate consideration of 
environmental factors under NEPA. Some delay is inherent in NEPA 
compliance, but it is far more consistent with the purposes of the Act 
to delay operation at a stage when real environmental protection may 
come about than at a stage where corrective action may be so costly as 
to be impossible.
    After the Calvert Cliffs case, other federal courts went on to 
define what the NEPA meant by ``reasonable alternatives,'' 
``significance,'' and ``major federal action.'' In the 1970s, CEQ 
codified these decisions in its guidelines and later regulations that 
are binding on all federal agencies (40 CFR Parts 1500--1508). A 
discussion of the major cases interpreting NEPA, and recent NEPA cases, 
can be found at the NAEP website at www.naep.org.
Recent Federal Court Rulings on NEPA
    Moving ahead to more recent judicial interpretations of NEPA, the 
following trends can be noted:
      Agencies prevail when they could demonstrate that they 
have given a ``hard look'' at the potential environmental consequences 
of the proposed action and alternatives.
        U.S. Forest Service used the best scientific evidence 
available and made reasonable judgments of activities to include in a 
cumulative impact analysis. Selkirk Conservation Alliance v. Forsgren: 
336 F.3d 944 (9th Cir. 2003)
        National Marine Fisheries Service took a hard look at the 
dolphin mortality problem and the effects of the proposed rule on the 
environment. Defenders of Wildlife v. Hogarth 330 F.3d 1358 (Fed. Cir. 
2003)
        Agency adequately considered and addressed the project 
effects on contamination and the environment and made an informed and 
reasoned decision that no EIS was required. Highway J Citizens Group v. 
Mineta 34 ELR 2513 (7th Cir. 2003).
        Agencies complied with NEPA procedures, did not conduct 
the assessment in bad faith, and followed relevant guidance. Spiller v. 
White: (Civil Action No. 02-50956 (5th Cir. 2003).
        The agency narrowed the range of reasonable alternatives 
by using a screening process and reasonable selection standards. Lee v. 
U.S. Air Force, 354 F.3d 1229 (10th Cir. 2004).
        The agency articulated a basis for its analysis and 
conclusions. In re Operation of the Missouri River System, (D. Minn. 
2004) (unreported). Also, Greater Yellowstone Coalition v. Flowers, 359 
F.3d 1257 (10th Cir. 2004).
        The U.S. Navy made a detailed study of the risk and 
determined the risk to be remote. Ground Zero Center for Non-violent 
Action v. United States Department of the Navy, 383 F.3d 1082 (9th Cir. 
2004).
        The Federal Aviation Administration adequate guidance to 
the EIS contractor and participated in the EIS preparation. Communities 
Against Runway Expansion, Inc. v. Federal Aviation Administration, 355 
F.3d 678 (D.C. Cir. 2004).
      Agencies lose when they skirt NEPA procedures, ignore (or 
fail to demonstrate that they considered) opposing evidence, 
demonstrate bad faith, or change the proposal without complying with 
NEPA. For example,
        U.S. Forest Service violated NEPA by denying requests to 
extend the scoping period, failing to explore alternatives, and failing 
to prepare a supplemental EIS after making ``substantial'' changes to 
the proposed action. Wyoming v. Department of Agriculture 33 ELR 20250 
(D. Wyo. 2003).
        Agency failed to respond to 7 scientific studies that cast 
doubt on the agency's conclusions. Center for Biological Diversity v. 
U.S. Forest Service 34 ELR 20004 (9th Cir. 2003).
        Reasoning relied on in a supplemental EIS had been 
considered and rejected in the original EIS, but the agency did not 
supply a ``reasoned explanation'' for the reversal of its views. Fund 
for Animals v. Norton Civil Action No. 02-2367 (D.D.C. 2003).
        EA was inadequate because it failed to discuss a report 
critical of post-fire logging and disregarded scientific evidence that 
post-fire salvaging likely results in adverse environmental impacts. 
League of Wilderness Defenders/Blue Mountains Diversity Project v. 
Marquis-Brong 33 ELR 20187 (D. Ore. 2003).
        The agency failed to engage in a reasoned analysis of two 
studies on the impact of low frequency active sonar on fish and failed 
to make evidence available to the public. Natural Resources Defense 
Council v. Evans 33 ELR 20153 (N.D. Cal. 2003).
        The U.S. Army Corps of Engineers failed to provide a 
statement of reasons why the proposed action would have negligible 
impacts on the environment, leaving the court unpersuaded that it had 
taken a ``hard look'' at potential impacts. Ocean Advocates v. United 
States Army Corps of Engineers, 361 F.3d 1108 (9th Cir. 2004). Also 
Pennaco Energy, Inc. v. U.S. Department of the Interior, 377 F.3d 1147 
(10th Cir. 2004); Western Land Exchange Project v. United States Bureau 
of Land Management, 315 F. Supp. 2d 1068 (D. Nev. 2004).
        The Bureau of Land Management did not sufficiently 
identify or discuss the incremental impact that can be expected from 
each successive timber sale or how those individual impacts might 
combine or synergistically interact with each other to affect the 
surrounding environment. Klamath-Siskiyou Wildlands Center v. Bureau of 
Land Management, 387 F.3d 968 (9th Cir. 2004)
        The agency failed to adequately consider the impacts of 
past actions in a cumulative impact analysis. Lands Council v. Powell, 
379 F.3d 738 (9th Cir. 2004).
        The agency did not comply with NEPA when designating 
critical habitat under the Endangered Species Act. Cape Hatteras Access 
Preservation Alliance v. United States Department of the Interior, 344 
F. Supp. 2d 108 (D.D.C. 2004).
        The agency failed to conduct any NEPA review before 
allowing tourist vans through a wilderness area. Wilderness Watch & 
Public Employees for Environmental Responsibility v. Mainella, 375 F.3d 
1085 (11th Cir. 2004).
        The agency failed to prepare an EIS for, and to consider 
the cumulative impacts of, the issuance of multiyear special use 
permits to commercial packstock operators in wilderness areas. High 
Sierra Hikers Association v. Blackwell, 381 F.3d 886 (9th Cir. 2004).
    Federal courts have also recently reiterated that:
      An agency is entitled to rely on their own experts as 
long as their decisions are not arbitrary and capricious. Lee v. U.S. 
Air Force, 354 F.3d 1229 (10th Cir. 2004).
      Agencies must use the best available scientific 
information and are not required to conduct their own studies (when 
existing studies are available). Lee v. U.S. Air Force, 354 F.3d 1229 
(10th Cir. 2004).
      The agency is under no obligation to consider each and 
every alternative but rather it must evaluate a considerable range of 
alternatives to allow it to make a reasoned decision. In re Operation 
of the Missouri River System, (D. Minn. 2004) (unreported).
      Project alternatives derive from the purpose and need 
statement. Although an agency cannot define its objective in 
unreasonably narrow terms, an agency has considerable discretion to 
define the purpose and need for a project. Westlands Water District v. 
United States Department of the Interior, 376 F.3d 853 (9th Cir. 2004).
      When new information arises following the issuance of a 
DEIS, it may validly be included in the FEIS without recirculation. 
Westlands Water District v. United States Department of the Interior, 
376 F.3d 853 (9th Cir. 2004).
      Documentation of reliance on a categorical exclusion need 
not be detailed or lengthy; it need only be long enough to convince a 
court that an agency considered whether a categorical exclusion applied 
and concluded that it did. Wilderness Watch & Public Employees for 
Environmental Responsibility v. Mainella, 375 F.3d 1085 (11th Cir. 
2004).
      The existence of opposition does not automatically render 
a project controversial. Cold Mountain v. Garber, 375 F.3d 884 (9th 
Cir. 2004).
      Descriptions in the DEIS were sufficient to provide a 
``springboard for public comment.'' A supplemental EIS is only needed 
where new information provides a seriously different picture of the 
environmental landscape. National Committee for the New River, Inc. v. 
Federal Energy Regulatory Commission, 373 F.3d 1323 (D.C. Cir. 2004).
Cumulative Impacts
    The need to adequately address cumulative impacts has also received 
attention in recent court decisions:
      Idaho Sporting Congress v. Rittenhouse, 305 F.3d 957 (9th 
Cir. 2002) (use of a home range scale, rather than a landscape scale as 
recommended by USFS scientists, rendered the cumulative impact analysis 
inadequate)
      Native Ecosystems Council v. Dombeck, 304 F. 3d 886 (9th 
Cir. 2002) (although individual projects had independent utility and 
were not required to be considered together in the same NEPA document, 
the EAs for each did not adequately consider the cumulative impacts of 
the other projects as reasonably foreseeable actions)
      Grand Canyon Trust v. Federal Aviation Administration, 
290 F.3d 339 (D.C. Cir. 2002) (FAA addressed only the incremental 
increase in noise that would occur as a result of its approval of a 
replacement airport near the Zion National Park, and not the cumulative 
impact on the park. There was no way to determine whether the FAA's 
estimated 2 percent increase, in addition to other noise impacts on the 
park, will significantly affect the quality of the human environment. 
The FAA analysis does not aggregate the noise impacts on the park.)
      Kern v. U.S. Bureau of Land Management, 284 F.3d 1062 
(9th Cir. 2002) (failed to adequately analyze cumulative impacts of 
proposed timber project)
      Texas Committee on Natural Resources v. Van Winkle, 197 
F. Supp. 2d 586 (N.D. Tex. 2002) (Army Corps was required to consider 
the cumulative impacts of reasonably foreseeable future actions in the 
same geographical area, although those actions were not actual 
proposals and precise information about them was not available. There 
was a reasonable basis to assume some or all of the projects would be 
implemented. The cumulative impacts analysis was cursory and the agency 
did not take a ``hard look'' at the proposed action's environmental 
consequences, including cumulative impacts).
      Sierra Club v. Bosworth, 199 F. Supp 2d 971 (N.D. Cal. 
2002) (EIS for post-fire logging project fails to adequately disclose 
or analyze cumulative impacts on management indicator species, fuel 
break maintenance, or fire-fighting tactics. Although the project is 
not connected to other post-fire logging projects in the forest, the 
EIS fails to adequately disclose and consider those actions in the EIS. 
Given their similarities with respect to timing, geography, and 
purpose, these actions may result in significant impacts and such 
impacts must be addressed in a single EIS.)
Recent U.S. Supreme Court Decisions
    Since NEPA's enactment, the U.S. Supreme Court has issued 14 
decisions regarding NEPA compliance issues. The two most recent cases 
were decided in the October 2003 term: Department of Transportation v. 
Public Citizen, 541 U.S. 752, 124 S.Ct. 2204 (2004), and Norton v. 
Southern Utah Wilderness Alliance, 541 U.S.--------, 124 S. Ct. 2373 
(2004). Each of these cases is described below, along with the Court's 
holdings.
Department of Transportation v. Public Citizen
    In 2001, an international arbitration panel determined that a 
moratorium on the entry of Mexican motor carriers into the U.S. 
violated the North American Free Trade Agreement (NAFTA). President 
Bush subsequently announced that he would lift the moratorium after the 
Department of Transportation (DOT) issued regulations governing 
Mexican-domiciled motor carriers seeking to operate within the United 
States. Congress then prohibited the Department from expending any 
funds for licensing or permitting of Mexican-based motor carriers in 
the U.S. until the Department had issued safety and inspection rules to 
cover those carriers.
    DOT promulgated three regulations governing Mexican motor carriers 
and, for two of them, prepared EAs that concluded that the regulations 
would have no significant impact on the environment. DOT did not 
prepare an EA for the third regulation because it concluded the 
regulation fell within its categorical exclusion regulations. DOT also 
did not make conformity determinations under the Clean Air Act for any 
of the three regulations because it concluded that the regulations fell 
within exceptions to Clean Air Act requirements.
    Following the issuance of the regulations, the President lifted the 
moratorium, permitting Mexico-domiciled motor carriers to offer cross-
border service.
    Plaintiff public interest and environmental organizations and 
trucking unions filed suit in the U.S. Court of Appeals for the 9th 
Circuit, arguing that the regulations were invalid because DOT failed 
to comply with NEPA and the Clean Air Act. Specifically, they argued 
that allowing Mexican trucks to operate in the U.S. would increase air 
pollution in violation of state standards and would harm residents of 
border states.
    DOT argued that additional Mexican truck and bus traffic and any 
incidental increases in air pollution would be the result of the 
President's action in lifting the moratorium rather than as a result of 
the agency's safety and licensing regulations. Thus, the effects of the 
traffic would be attributable to the President's exercise of his 
foreign policy power, not agency rulemaking. Because NEPA and Clean Air 
Act requirements do not apply to actions of the President, DOT argued 
that the link between the regulations and any environmental impacts of 
increased traffic from Mexican vehicles were too attenuated to trigger 
NEPA or Clean Air Act requirements.
    The Court of Appeals rejected that argument, stating that the 
``distinction between the effects of the regulations themselves and the 
effects of the presidential rescission of the moratorium on Mexican 
truck entry'' were ``illusory.'' Because the court limited its review 
to the question of whether DOT had authority to promulgate its 
regulations without complying with NEPA and Clean Air Act requirements, 
it found that its decision did not implicate the President's 
``unreviewable discretionary authority to modify the moratorium'' or 
affect the United States' ability to comply with NAFTA. The court found 
that DOT had acted arbitrarily and capriciously by failing to prepare 
EISs and Clean Air Act analyses before issuing the regulations.
    In a unanimous opinion authored by Justice Thomas, the U.S. Supreme 
Court reversed the Court of Appeals, finding that DOT lacked discretion 
to prevent cross-border operations of Mexican motor carriers and thus 
was not required to evaluate the environmental effects of such 
operations. The Court rejected the plaintiffs' argument that DOT was 
required to examine releases of air emissions as an indirect effect of 
the issuance of the regulations because, according to the Court, DOT 
was unable to countermand the President's lifting of the moratorium or 
otherwise exclude Mexican trucks from operating in the United States. 
DOT was required by law to register any motor carrier willing and able 
to comply with various safety and financial responsibility rules, and 
only the moratorium prevented it from doing so for Mexican trucks. The 
causal connection between the proposed regulations and the entry of 
Mexican trucks was insufficient to make DOT responsible under NEPA to 
consider the environmental effects of entry, citing Metropolitan Edison 
Co. v. People Against Nuclear Energy, 460 U.S. 766 (1983). ``It would 
not, therefore, satisfy NEPA's ``rule of reason'' to require an agency 
to prepare a full EIS due to the environmental impact of an action it 
could not refuse to perform.'' Slip opinion at 15.
    The Court also declined to address the plaintiffs' argument that 
the agency should have considered other alternatives that might 
mitigate the environmental impacts of authorizing cross-border truck 
operations because the plaintiff had not raised the issue of additional 
alternatives during the NEPA process:
    ``None of the [plaintiffs] identified in their comments any 
rulemaking alternatives beyond those evaluated in the EA, and none 
urged [DOT] to consider alternatives. Because [plaintiffs] did not 
raise these particular objections to the EA, [DOT] was not given the 
opportunity to examine any proposed alternatives to determine if they 
were reasonably available. [Plaintiffs] have therefore forfeited any 
objection to the EA on the ground that it failed adequately to discuss 
potential alternatives to the proposed action.'' Slip opinion at 10.
    The Court also held that DOT did not act improperly by not 
performing a full conformity analysis pursuant to the Clean Air Act, 
stating that emissions attributable to an increase in Mexican trucks 
across the border were not indirect emissions because DOT could not 
control the emissions.
    Commentary: The Court's holding is that an agency is not 
responsible for, and thus is not required to evaluate under NEPA, any 
direct, indirect, or cumulative environmental impact over which it has 
no control. While in many circumstances an agency can refuse to act 
because the environmental impacts of its proposed action would be too 
great, here DOT only had jurisdiction to enact safety and financial 
responsibility regulations. It did not have authority to refuse to 
issue regulations or to refuse, on environmental grounds, to allow 
Mexican trucks to enter the United States if they met safety and 
financial responsibility.
    The Court also concluded that the informational purpose of NEPA 
would not be served by evaluating air emissions because no matter what 
the public said about that analysis, DOT could not act upon those 
views. This ignores, however, that NEPA documents are prepared for the 
information of the agency, the public, and Congress. While DOT may not 
have been able to act upon the information, Congress could have. As CEQ 
stated in its ``40 Most Asked Questions,'' ``[a]lternatives that are 
outside the scope of what Congress has approved or funded must still be 
evaluated in the EIS if they are reasonable, because the EIS may serve 
as the basis for modifying the Congressional approval or funding in 
light of NEPA's goals and policies.'' Question 2b.
    The Court also reiterated that members of the public must put forth 
their concerns regarding the scope and content of a NEPA document 
during the NEPA process, and not wait for a court proceeding to raise 
an issue for the first time. Of course this presumes, in the case of an 
EA, that there is a public comment process in which the public is 
encouraged to present their concerns.
Norton v. Southern Utah Wilderness Alliance
    The Southern Utah Wilderness Alliance (SUWA) sued the U.S. Bureau 
of Land Management (BLM) for violating the Federal Land Policy and 
Management Act (FLPMA) and NEPA by not properly managing off-road 
vehicle (ORV) use on federal lands that had been classified as 
wilderness study areas or as having wilderness qualities. SUWA sought 
relief under the Administrative Procedure Act (APA) claiming that BLM 
should be compelled to carry out mandatory, non-discretionary duties 
required by FLPMA and NEPA.
    SUWA claimed that current levels of ORV use were impairing the 
suitability of the wilderness study areas so that they would no longer 
be appropriate for wilderness designation, and that BLM's failure to 
ensure non-impairment violated a statutory duty, constituting the 
violation of a mandatory, non-discretionary duty actionable under the 
APA, which gives courts authority to compel ``agency action unlawfully 
withheld or unreasonably delayed.'' SUWA acknowledged that it could not 
compel BLM to act in any specific way--BLM has discretion to comply 
with the non-impairment requirement in a variety of ways--but argued 
that it could sue to compel BLM to act in some way of its choosing that 
would meet BLM's non-impairment obligation.
    BLM argued that all judicial review under the APA is limited to 
final agency action, or to compel final agency action that has been 
withheld, and that the day-to-day operations of BLM land management 
that SUWA is attempting to challenge were outside the concept of final 
agency action.
    Although the U.S. District Court dismissed SUWA's claims, the U.S. 
Court of Appeals for the 10th Circuit reversed the lower court, holding 
that ``[w]here, as here, an agency has an obligation to carry out a 
mandatory, non-discretionary duty and either fails to meet an 
established deadline or unreasonably delays in carrying out the action, 
the failure to carry out that duty is itself `final agency action.'''
    Before the 10th Circuit, SUWA also argued that BLM's failure to 
take a ``hard look'' at information suggesting that ORV use has 
substantially increased since NEPA studies for the wilderness study 
areas were issued violated NEPA. SUWA argued that BLM should be 
compelled to take a hard look at this information and decide whether 
supplemental NEPA documents should be prepared. The Court of Appeals 
agreed that BLM could be compelled, dismissing BLM's arguments that it 
should not be compelled to take a hard look at new information because 
(1) the agency would be undertaking NEPA analysis in the near future 
and (2) the agency faced budget constraints.
    In a unanimous opinion authored by Justice Scalia, the U.S. Supreme 
Court reversed the Court of Appeals, holding that an APA claim can 
proceed only where a plaintiff asserts that an agency failed to take a 
discrete agency action, as opposed to a broad program, that it is 
legally required to take. Further, the Court held that while BLM was 
obligated to not impair the suitability of wilderness study areas for 
preservation of wilderness, the agency had discretion to decide how to 
achieve that objective.
    With respect to the NEPA claim, the Court noted that 
supplementation of a NEPA document is required if there are significant 
new circumstances or new information relevant to environmental concerns 
and bearing on the proposed action or its impacts (40 CFR Sec. 1502.9). 
The Court stated that supplementation was required only if there 
remains a federal action to occur (citing Marsh v. Oregon Natural 
Resources Council, 490 U.S. 360 (1989)). The action that required the 
EIS was the approval of the land use plan; once that plan was approved, 
there was no ongoing ``major federal action'' that could require 
supplementation. The Court did state that BLM would be required to 
perform additional NEPA analyses if a land use plan were amended or 
revised.
                                 ______
                                 
    Ms. McMorris. Thank you. Hold your applause, please.
    Mr. Spainhour.

        STATEMENT OF CHARLES SPAINHOUR, VULCAN MATERIALS

    Mr. Spainhour. I want to thank Congresswoman Drake and 
Madam Chairwoman for this opportunity to testify. My name is 
Charles Spainhour, and I am the environmental manager for 
Vulcan Materials Company.
    Vulcan Materials Company is the nation's leading producer 
of construction aggregates, primarily crushed stone, sand, and 
gravel. The materials that we produce and the rest of the 
aggregates industry produces are key building blocks to most 
construction activities. Without construction aggregates, most 
roads, sidewalks, driveways, bridges, dams, sewer, water main 
projects, railroads, and other building construction would not 
exist.
    We are headquartered in Birmingham, Alabama. We currently 
have 356 facilities in 21 states, including the District of 
Columbia and Mexico. In 2004, we employed approximately 7,800 
men and women, and shipped 243 million tons of products, and 
had sales totaling $2.2 billion. We do have a local connection 
in this area. We have operations in this area in Richmond, 
Virginia Beach, and we also have an office in Richmond.
    When NEPA was enacted in 1969, it was a landmark piece of 
legislation with a noble cause, to ensure that Federal agencies 
evaluated the effects of their activities on human environment 
and factored the results of that analysis into their 
decisionmaking process.
    Since NEPA's enactment, an enormous amount of additional 
environmental legislation and regulation has been promulgated. 
Vulcan Materials Company, like the rest of our industry, is 
heavily regulated. Permitting of new and expansions of existing 
quarries and sand and gravel operations is a very complex and 
time consuming activity. Depending on the area of the country 
that you are in, it can be a multi-hear, several hundred 
thousand dollar process.
    A typical facility requires air emissions permits, storm 
and process water discharge permits, mine permits and land use 
authorizations, and a myriad of local regulations and 
authorizations. In many cases, we have overlapping requirements 
from Federal, State and local agencies.
    In the event an operation has impacts on wetlands and 
endangered species, we are also going to have Federal 
involvement with the Corps of Engineers, EPA, and possibly Fish 
and Wildlife Service.
    So what is the connection with NEPA? In the event that a 
NEPA review is required due to Federal agency involvement, the 
permitting process can be extended almost indefinitely. Given 
the already burdensome and time consuming process of permitting 
a new operation, the additional delays posed by the NEPA 
process are onerous.
    In working with our resource managers regarding Vulcan 
projects that involve NEPA review, I have observed a trend that 
speaks volumes about the burden of the process. In some cases, 
we conclude to not develop resources that would otherwise be 
available to us, so that we can avoid interaction with the NEPA 
process and the delays associated with it.
    Suggestions for reform from Vulcan Materials Company: A 
significant issue with the current NEPA process is that there 
is no clear endpoint. Clear definition needs to be given 
regarding what constitutes a completed environmental study.
    Another significant and related issue is that NEPA does not 
prescribe significant timeframes.
    There need to be specific, prescribed timeframes for 
completion of the various aspects of the NEPA process, 
including agency review and decisionmaking. NEPA also needs to 
provide responsibility and authority for the lead agency to 
ensure adherence to those timeframes.
    The triggering mechanisms within NEPA for requiring 
preparation of an environmental impact statement are ``Federal 
actions significantly affecting the quality of the human 
environment.'' However, NEPA does not define what actions are 
considered significant. NEPA needs to be revised to provide 
clear definition of what constitutes significant Federal 
actions.
    NEPA requires evaluation of alternatives to Federal actions 
considered significant as part of the Environmental Impact 
Statement. This requirement also results in the evaluation of a 
significant number of alternatives, which both delays the 
process and increases the cost of permitting.
    Lead agencies concerned about legal challenges require 
detailed and exhaustive reviews of alternatives. While this is 
important to understand the environmental impact of the 
process, we believe in some cases it goes overboard.
    NEPA needs to be revised to provide a clear definition of 
the types and number of alternatives that must be considered. 
The NEPA process should also consider alternatives that are 
truly valid, economically viable, and technologically 
demonstrated and provide an alternative to the project.
    NEPA includes provisions for a judicial review process of 
Federal agency decisions. The original intent of these 
provisions is honorable: To ensure that all affected parties 
have an opportunity to challenge agency decisions. However, 
over the last 10 to 20 years the process has been taken hostage 
over fear of judicial challenges and lawsuits.
    Federal agencies involved in the process require extensive 
and exhaustive and detailed analysis of issues associated with 
a protects. Agencies place a disproportionate emphasis on the 
preparation of documentation. The concern over legal challenges 
handicaps the decisionmaking process. Lead agencies are 
resistant to consider actions as nonsignificant, resistant to 
grant final approval for a project because of fear over 
litigation.
    We offer the following suggestions for reform of the 
judicial review process. Establish clear guidelines on who has 
standing to challenge an agency decision. Establish a 
reasonable time period for filing the challenge. Establish 
clear timeframes for the judicial review, and create a clear 
endpoint to the judicial review process.
    In conclusion, I wanted to show the Committee an example of 
an environmental impact statement that affected some of my 
fellow mining companies down in the Miami-Dade area. This is an 
example of how burdensome the documentation can become.
    This process involved development of a freshwater lake belt 
plan in the Miami-Dade area that has taken over 10 years and 
they still do not have an endpoint on the process.
    In conclusion, I want to thank the Committee once again for 
the opportunity to testify. I appreciate the willingness and 
interest to focus on this important issue.
    [The prepared statement of Charles Spainhour follows:]

 Statement of Charles J. Spainhour, Corporate Manager of Environmental 
                   Services, Vulcan Materials Company

Introduction
    Good afternoon. My name is Charles Spainhour and I am the manager 
of environmental services for Vulcan Materials Company (``Vulcan''). I 
want to thank the Committee for giving me this opportunity to provide 
testimony on the role of NEPA, and to offer suggestions on how NEPA can 
be improved.
    Vulcan Materials Company is the nation's leading producer of 
construction aggregates, primarily crushed stone, sand, and gravel. The 
construction aggregates industry extracts natural resources such as 
stone, sand and gravel through mining. Once these materials are 
extracted they are processed through crushing, grinding, and screening 
to reduce them to a size, shape and gradation where they can be used as 
construction aggregates. These aggregate products are the literal 
building blocks for most construction activities. Without construction 
aggregates, roads, sidewalks, driveways, bridges, dams, sewer and water 
systems, railroads, and most building construction could not exist. 
Even wooden structures need construction aggregates for sound 
foundations.
    Vulcan is headquartered in Birmingham, Alabama. We operate 356 
aggregate production and related facilities in 21 states, the District 
of Columbia and Mexico. In 2004, the company employed approximately 
7,800 men and women, shipped 243 million tons of aggregates, and had 
sales totaling $2.2 billion. Our Mideast Division, which is based in 
Winston-Salem, has a regional office in Richmond, Virginia, in the 
heart of the Mid-Atlantic area.
    In 2004, the entire construction aggregates industry produced 
approximately 3 billion tons of aggregates valued at approximately $16 
billion, contributing $37.5 billion to the nation's Gross Domestic 
Product. In 2004, the industry employed over 115,000 men and women.
Impact of NEPA on the Construction Aggregates Industry
    When NEPA was enacted in 1969, it was a landmark piece of 
environmental legislation with a noble cause--to ensure that federal 
agencies evaluated the effects of their activities on the human 
environment and factored the results of this analysis into their 
decision making process. Since NEPA's enactment, an enormous amount of 
additional environmental legislation and regulation has been 
promulgated. Vulcan Materials Company facilities, like the rest of the 
aggregates industry, are heavily regulated. Vulcan Materials Company is 
proud of our commitment to and our accomplishments in environmental and 
social responsibility. As a company, we constantly strive to meet or 
exceed our obligations under the various environmental permits that 
have been granted to our operations.
    Permitting of stone quarries and sand and gravel sites is a very 
complex and time consuming activity. A typical Vulcan facility requires 
air emissions permits, storm and process water discharge permits, mine 
permits or land use authorizations, and a myriad of local registrations 
or permits. In many cases there are overlapping permit requirements 
from federal, state and local governmental agencies. In the event an 
operation affects wetlands or endangered species, additional permits 
may be required from federal agencies such as EPA, the Corps of 
Engineers, and the Fish and Wildlife Service.
    So what is the connection with NEPA? A majority of Vulcan's 
permitting activities are handled at the state or local level and do 
not involve NEPA. However, even when NEPA is not involved, the 
permitting of a new operation or major expansion of an existing 
operation is normally a multiyear process. In the event that a NEPA 
review is required due to federal agency involvement, the permitting 
process can be extended almost indefinitely. Given the already 
burdensome and time consuming process of permitting a new quarry 
operation, the additional delays posed by the NEPA process are onerous.
    In working with our resource managers regarding Vulcan projects 
that involved NEPA review, I have observed a trend that speaks volumes 
about the burden of the NEPA process. In some cases we conclude that 
the process is so burdensome we choose to not pursue aggregate 
resources rather than work through the drawn out and costly NEPA 
process.

Suggestions for Reform
1.  Endpoint Needed in Process
    A significant issue with the current NEPA process is that there is 
no clear end point to the process. Clear definition needs to be given 
regarding what constitutes a completed environmental study, whether 
that study is an Environmental Assessment (EA) or Environmental Impact 
Statement (EIS). This definition is currently left to the discretion of 
the lead agency, which creates opportunities for inconsistencies and 
the incorporation of specific agency agendas.
    Another significant and related issue is that NEPA does not 
prescribe timeframes. There need to be specific, prescribed time frames 
for completion of the various aspects of the NEPA process, including 
agency review and decision making. NEPA needs to place responsibility 
on the lead agency for adherence to these time frames, and include 
provisions for default approval decisions in the event the agency 
misses the designated time frames.
2. Clear Definition of Significant Federal Actions
    The triggering mechanisms within NEPA for requiring preparation of 
an Environmental Impact Statement (EIS) are ``federal actions 
significantly affecting the quality of the human environment.'' 
However, NEPA does not define what actions are considered significant. 
As currently applied this shortcoming causes project proponents to go 
through the full Environmental Impact Statement (EIS) process for 
actions that should be addressed through categorical exclusions or the 
simpler Environmental Assessment (EA) process.
    NEPA needs to be revised to provide a clear definition of what 
constitutes significant federal actions.
3. Clarify Requirements for Alternatives Analysis
    NEPA requires evaluation of alternatives to federal actions 
considered ``significant'' as part of the Environmental Impact 
Statement (EIS). This requirement as currently applied often results in 
the evaluation of a significant number of alternatives, which can both 
delay the NEPA process and increase its associated cost. Lead agencies 
concerned about legal challenges require detailed and exhaustive 
reviews of alternatives that we believe go beyond the intent of the 
legislation. This requirement is also a common way for project 
opponents to delay a project by suggesting additional alternatives that 
have to be evaluated late in the review process.
    NEPA needs to be revised to provide a clear definition of the types 
and number of alternatives that must be considered. NEPA should also be 
revised to prevent project opponents from extending the process by 
suggesting alternatives as a stalling tactic. This can be done by only 
allowing suggested alternatives early in the NEPA process. The NEPA 
process should also allow only the consideration of economically viable 
and technologically demonstrated alternatives that support the goals of 
the project.
4. Reform of the Judicial Review Process
    NEPA includes provisions for a judicial review process of federal 
agency decisions. The original intent of these provisions is 
honorable--to ensure that all affected parties have an opportunity to 
challenge decisions that they feel are not sound. However, over the 
last ten to twenty years the NEPA process has been taken hostage by the 
fear of judicial challenges and lawsuits. Federal agencies involved in 
the process require exhaustive and detailed analysis of all issues 
associated with a project under review, to the extent that minor issues 
are treated as ``significant.'' Agencies place a disproportionate 
emphasis on the preparation of voluminous documentation to ``pad'' the 
record. The concern over legal challenges handicaps the decision making 
process. Lead agencies are resistant to consider actions as non-
significant. This results in full Environmental Impact Statements (EIS) 
where Environmental Assessments (EA) should have been allowed. 
Additionally, lead agencies are hesitant to grant final approval for a 
project or to resist pressure from project opponents to consider 
irrelevant issues, for fear of litigation.
    We offer the following suggestions for reform of the NEPA judicial 
review process:
      Establish clear guidelines on who has standing to 
challenge an agency decision. These guidelines should take into account 
factors such as the challenger's relationship to the proposed federal 
action, the extent to which the challenger is directly impacted by the 
action, and whether the challenger was engaged in the NEPA process 
prior to filing the challenge;
      Establish a reasonable time period for filing the 
challenge. We suggest that challenges should be allowed to be filed 
within 60 days of notice of a final decision on the federal action;
      Establish clear time frames for the judicial review 
process to minimize delays in completing the process;
      Reduce or eliminate a challenger's right to appeal once a 
judicial decision is rendered, and
      Eliminate the multiple challenge delay tactic.
Conclusion
    I thank the Committee for the opportunity to provide testimony on 
the reform of NEPA. I applaud the willingness and interest of the 
Committee to focus on this important issue. I hope my testimony has 
helped you in this effort.
    Thank you very much.
                                 ______
                                 
    Ms. McMorris. Thank you. Thanks for being here.
    Mr. Besa.

              STATEMENT OF GLEN BESA, SIERRA CLUB

    Mr. Besa. Thank you very much, Madam Chairman, 
Congresswoman Drake. I think it is very important to appreciate 
what Mr. Kelman said, and that in the analysis of the testimony 
given before this Committee, including some of the comments by 
yourself, Madam Chairman, that there be an analysis as to where 
NEPA applies and where it doesn't, for example, with regard to 
nuclear power plants and natural gas facilities.
    I don't believe NEPA has been a problem there, and I think, 
with Three Mile Island and Chernobyl, industry's interests 
comport with that. In the case of an LNG plant, I know of one 
in Chesapeake Bay, the Cove Point plant, that was mothballed 
for many years. So I think it is very important to analyze 
actually what NEPA does and what NEPA hasn't done in your 
efforts.
    I would also suggest that there have been some unique 
exceptions to NEPA written into law just recently, that any 
real analysis of this statute should also include a 
comprehensive review of all those exceptions that have been 
written into the law recently, including the current energy 
bills before you. Look before you leap.
    It is a good lesson we learn as children. It is just common 
sense to think ahead about the consequences of the actions that 
we take. Right now, that is what the National Environmental 
Policy Act requires the Federal Government to do.
    Before you build a highway near a person's home or truck 
nuclear waste through their neighborhood, the government must 
tell you, ask your opinion, and consider alternatives. That is 
how democracy, government of, by, and for the people, is 
supposed to work.
    It is no accident that the most progress in protecting the 
environment and ensuring citizens' rights to clean air and 
clean water has occurred in the United States and other 
democracies, and you just compare places like the former Soviet 
Union and the legacy of pollution that they have had because of 
the lack of freedom of information, the lack of public 
participation.
    Most projects sail through the NEPA process without undue 
delay. Big projects with major environmental impacts take 
longer, just because they have a longer planning process. In 
fact, the NEPA review has become an integral part of the 
planning process for most Federal agencies.
    NEPA does not stop projects. If a project does not proceed 
through the NEPA process, it is either because, in the course 
of the NEPA analysis, it was determined by the agency that the 
project lacked sufficient merit, which is often the case, or 
because the agency conducting the NEPA review did not do an 
adequate job, as Mr. Kelman referred to. In the latter case, 
the agency may be ordered by a court to go back and consider 
the elements or impacts of the project that had been ignored or 
omitted.
    A good example of that, of course, is the Outlying Landing 
Field that Congresswoman Drake referred to, where the Navy did 
not do a very good job, and they have been sent back to do a 
supplement EIS.
    Just to share another example with you, the King William 
Reservoir, which is a massive drinking water project proposed 
by Newport News--It is interesting that that project was 
initiated through a contract between the City of Newport News 
and King William County, and it wasn't until the NEPA process 
kicked in that the citizens of King William County, including 
the Native Americans severely impacted by this project, became 
aware of the reservoir.
    NEPA is critically important to citizens knowing what is 
going on and being able to participate in the process, because 
oftentimes other governmental processes do not include that 
guaranty of public participation.
    It is most unfortunate that some view NEPA and the 
information gathering and sharing and the public participation 
that it requires, as an obstruction to getting Federal projects 
completed and permits issued. Recent statements in the media 
and actually by this Committee have attempted to link the 
flooding in New Orleans and the high gasoline prices to the 
application of NEPA. I would like to use my time here in 
rebutting those.
    The last few days we have seen attempts--Excuse me, I just 
said that. A couple of cases that I would like to mention that 
I think have been used here.
    Save Our Wetlands v. Rush in 1977: This actually is a case 
around New Orleans where there was a proposal to build a 25-
mile long barrier from the Mississippi border to the 
Mississippi River. The communities around Lake Pontchartrain 
and local fishermen opposed this project because of the massive 
impact it would have had on the economy.
    Save Our Wetlands, a local organization there, filed a 
lawsuit, and they secured an injunction from Federal District 
Court Judge Charles Schwartz. The Judge required the Corps to 
do proper studies of the proposed new levee system before 
moving forward. The Corps just decided not to do it, and 30 
years later they haven't done those studies that the court 
asked them to do.
    Another case that involved the Sierra Club was Mississippi 
River Basin Alliance v. Martin Lancaster in 1996. Although this 
case has been cited in some newspaper accounts, it is important 
to recognize that the lawsuit actually involves levees that 
were proposed 100 miles north of New Orleans that would have 
involved the digging up of the wetlands there that actually 
prevent flooding.
    While we were not opposed to the levees per se, we were 
opposed to the source of the fill material to build the levees, 
which was basically excavation of wetlands 100 miles north of 
New Orleans. It didn't have really anything to do with New 
Orleans at all.
    On the heels of Hurricane Katrina where there is widespread 
distrust as to whether government can protect the public, it is 
vital that we have in place mechanisms to hold government 
accountable. There are right ways and wrong ways to design a 
highway or even to build a levee. By ensuring that there is 
good science and local input, the government is much more 
likely to get it right.
    Another allegation leveled at NEPA, and Senator Wagner made 
this point, is that it has delayed energy development projects 
that have resulted in gasoline price spikes and also shortages 
of natural gas experienced as a result of Hurricane Katrina.
    In its September 8 statement, this Committee quoted you, 
Congresswoman McMorris, as stating, ``Throughout the NEPA Task 
Force we have heard from numerous industries that expensive and 
time consuming legal and procedural delays are preventing 
energy production and construction projects.'' Again, this is 
where I would strongly suggest that there be an analysis with 
regard to whether or not NEPA is actually involved.
    The unprecedented drilling boom that is going on right now 
in the country indicates that, far from NEPA being an 
impediment to oil and gas development, it appears that there 
are fewer and fewer environmental safeguards in place to assure 
that exploration and development take place in the appropriate 
places with appropriate environmental precautions.
    Meanwhile, industry profits are at an all-time high, as we 
all know, and the numbers clearly show that the National 
Environmental Policy Act is not standing in the way of energy 
production. Let's look at some of those numbers.
    The Bureau of Land Management has issued thousands more 
drilling permits than the industry can actually drill. In 2004 
BLM issued a record number of drilling permits on Federal 
lands, particularly in the west, a total of 6,052 permits. But 
the industry only drilled 2,702 of those areas that had been 
authorized for drilling.
    Natural gas production from Federal onshore lands has 
significantly increased over the past decade. Natural gas 
production from onshore Federal lands has more than doubled in 
1992--since 1992, and between 2003 and 2004 there was an 
increase in western lands of 42 percent.
    I might want to mention, I actually got a call from an 
official with Chesapeake City who--and that is why you've got 
this Black Bear landfill issue here, recognizing that in many 
instances there are impacts on Federal properties like the 
Great Dismal Swamp where, in fact, NEPA does not apply, and 
they wish it actually had.
    Ms. McMorris. Mr. Besa, I really do have to ask you to wrap 
up.
    Mr. Besa. OK. Well, I'll do that. Thank you.
    In conclusion, under the guise of speeding up projects, 
some want to waive environmental review requirements and shut 
people out of the decisionmaking process. As Americans 
committed to a democratic process, we cannot let that happen. 
We can't let public officials in Washington, D.C., decide, 
without citizen involvement, what happens here in our own 
backyard. NEPA is about democracy and open government. It is 
not about delay. Thank you very much.
    [The prepared statement of Glen Besa follows:]

        Statement of Glen Besa, Appalachian Regional Director, 
                              Sierra Club

    Madame Chairwoman, Members of the Task Force on Improving the 
National Environmental Policy Act.
    My name is Glen Besa, and I am the Appalachian Regional Staff 
Director for the Sierra Club. I am representing the Sierra Club today. 
My business address is 6 North 6th Street, Richmond, VA 23219. I 
appreciate this opportunity to appear before you.
    Look before you leap. It's a good lesson we all learned as 
children. It's just common sense to think ahead about the consequences 
of the actions we take.
    And right now that's what the National Environmental Policy Act 
requires the federal government to do. Before it builds a highway near 
your home or trucks nuclear waste through your neighborhood, the 
government must tell you, ask your opinion and consider alternatives. 
That's how democracy--government of, by and for the people--is supposed 
to work. It is no accident that the most progress in protecting the 
environment and ensuring citizens' rights to clean air and clean water 
have occurred in the United States and other democracies.
    The National Environmental Policy Act has played a key role in 
America's conservation leadership. A landmark law that puts people 
before politics, values science over short-term thinking, and respects 
democracy more than dollars, it was signed into law in 1970 by 
President Nixon. Thanks to NEPA, every American can expect major 
federal actions ``oil drilling, highway construction, logging in our 
National Forests, and so on--to be subject to scrutiny and review. NEPA 
doesn't prevent those activities--it only says that people are entitled 
to have the best information possible about how the environment will be 
affected and that less harmful alternatives should be considered.
    And under NEPA, when the federal government doesn't do its job 
well, citizens have the right to petition their Government for redress. 
At the heart of NEPA is its requirement that alternatives must be 
considered--including those that will minimize possible damage to 
public health, the environment or quality of life. Adequate review of 
projects at the front end saves time and money in the long run, since 
it lessens the need for difficult remedies to fix big mistakes. Because 
NEPA ensures balance, common-sense and openness in federal decision-
making, it is an effective tool to keep ``Big Government'' in check.
    Most projects sail through the NEPA process without undue delay. 
Big projects with major environmental impacts take longer just as does 
their planning process. In fact, the NEPA review has become an integral 
part of the planning process for federal agencies.
    Too often, agencies, under political pressure, are tempted to cut 
corners to accomplish jobs more quickly. But cutting corners can have 
disastrous consequences, especially when it comes to spending taxpayer 
money on projects that might harm citizens or their environment.
    As I stated before, NEPA does not stop projects. If a project does 
not proceed through the NEPA process it is either because in the course 
of the NEPA analysis it was determined by the agency that the project 
lacked sufficient merit or because the agency conducting the NEPA 
review did not do an adequate job. In the latter case, the agency may 
be ordered by a court to go back and consider elements or impacts of 
the project that it had ignored or omitted.
    Consider a recent example. Just this month the Fourth Circuit Court 
of Appeals, a circuit not known for its environmental activism, ruled 
that the Navy failed to take a ``hard look'' at the environmental 
impacts of its proposed Outlying Landing Field in eastern North 
Carolina. This jet training facility would be located adjacent to the 
Pocosin Lakes National Wildlife Refuge, in the heart of the Atlantic 
migratory bird flyway, posing a severe safety risk to Navy pilots and a 
serious threat to large flocks of migratory birds such as tundra swans 
and snow geese. Proximity to the Refuge, which Congress created to 
protect these migratory birds, was a key factor in the Court's ruling. 
The Navy's own documents further showed that an existing facility in 
southeastern Virginia meets the Navy's needs, yet, responding to 
political pressure, the Navy ``reverse engineered'' the process and 
mischaracterized scientific studies to justify the new OLF in North 
Carolina. As the District Court Judge, Terrence Boyle, observed, 
``NEPA's purpose is--to foster excellent action.--The very purpose of 
the environmental due process afforded by NEPA is eradicated if a 
federal agency makes a decision without proper consideration of the 
environmental impacts of the proposed project.'' The OLF is opposed not 
only by conservation groups but by the counties where the field would 
be located, farmers whose land would be taken for the field, and by 
property rights advocates.
    Let me share another example of a project that just received a 
permit from the Corps of Engineers. In Virginia, the proposed King 
William Reservoir, a 1,500 acre drinking water reservoir, would be 
constructed near native American lands and would impact the native 
American community by pumping water from the Mattaponi River, which has 
long supported the tribe's culture with a rich supply of shad. Pumping 
water from the coastal plain may irreparably harm the fragile shad 
fishery as well as the culture it supports. The reservoir also would 
wipe out over 300 acres of a unique wetland complex, the largest 
authorized loss of wetlands in the mid-Atlantic in the history of the 
Clean Water Act. Through the NEPA process, the U.S. Army Corps of 
Engineers discovered that the demand for the reservoir was 
substantially less than originally asserted and could be met in other 
ways. Even the Mayor of Newport News, a major proponent of the project, 
recognized the value of the NEPA process for clarifying the true demand 
for drinking water. The Corps initially denied the permit for the 
reservoir, although the permit eventually was granted just last month. 
I want to add that this project was initiated with contract between the 
City of Newport News and King William County. However, it was not until 
the initiation of the NEPA process that King William citizens including 
the local Native American tribes learned of this locally unpopular 
project.
    It is most unfortunate that some view NEPA, the information 
gathering and sharing, the public participation, as an obstruction to 
getting federal projects completed and permits issued. Recent 
statements in the media have attempted to link the flooding in New 
Orleans and high gasoline process to the application of NEPA. I would 
like to use my remaining time rebut these allegations.
    The last few days have seen an attempt by some to blame 
environmentalists for the disaster that struck New Orleans. At issue is 
the role that conservation groups played in two cases--one almost 30 
years ago--involving levee projects proposed by the Army Corps of 
Engineers. The following is a quick summary of those projects and an 
accurate account of the role that those groups played.
Save Our Wetlands v. Rush--1977
    In 1977, the Army Corps of Engineers was told by a federal judge to 
look at the impacts of a massive levee project it had proposed. Nearly 
three decades later, the Corps has never done that work and instead 
chose to abandon the project altogether.
    The proposed project would have built a 25-mile long barrier from 
the Mississippi border to the Mississippi River. Communities around 
Lake Pontchartrain and local fisherman opposed the project because of 
the massive impact it would have had on the economy and environment in 
the region. Those groups had advocated building higher levees as a 
simpler and safer alternative to the Corps' plan.
    After the Army Corps of Engineers refused to evaluate the impacts 
of its proposed project and consider ways to reduce them, Save Our 
Wetlands filed suit and secured an injunction from U.S. District Judge 
Charles Schwartz, Jr., who concluded that the region ``would be 
irreparably harmed'' if the barrier project was allowed to continue and 
chastised the Army Corps of Engineers for a shoddy job. The Judge 
required the Corps to properly study its proposed massive new levee 
construction project before moving forward.
    The Corps has never bothered to do the work despite having nearly 
30 years to do so.
    In the 1977 case conservation groups simply asked the government to 
look before it leapt and to make sure that local citizens knew what 
their government had been planning in their backyard.
Mississippi River Basin Alliance, et al. v. H. Martin Lancaster--1996
    This 1996 lawsuit involved levees that were 100 miles north of New 
Orleans, did not breach after Hurricane Katrina, and had nothing to do 
with the flooding.
    In addition, in the suit filed by Sierra Club, American Rivers, the 
National Wildlife Federation, Arkansas and Mississippi Wildlife 
Federations, and the Mississippi River Basin Alliance, these groups did 
not oppose raising the levees; they opposed the destruction of wetlands 
for construction material.
    These are the very sort of wetlands that we needed more of when 
Katrina struck. The impacts of the storm surge were clearly exacerbated 
by the loss of coastal Louisiana wetlands. Wetlands act as a buffer for 
coastal areas, soaking up the storm surge. According to the Army Corps 
of Engineers, three-square miles of wetlands can reduce storm surge by 
a foot.
    The U.S. Fish and Wildlife Service, Environmental Protection Agency 
and the Louisiana Legislature all urged the Corps to look at how the 
proposed project would have impacted the area. It refused to do so.
    The case was settled, with the Corps of Engineers agreeing in 1997 
to a supplemental environmental impact statement. According to a 1997 
Baton Rouge Advocate article, ``Corps officials said it will take them 
30 years to finish the levee work. That much time is required because 
funding is lacking for the projects--not because of the new 
environmental study, called an environmental impact statement.''
    These accusations mistake efforts to ensure good government 
decisions with a tragedy that had everything to do with bad judgment on 
the part of our government leaders. In each of the legal cases cited so 
far, conservation groups simply asked government agencies to look 
before leaping into projects that would have had major impacts on 
people and the natural systems on which they depend and to give local 
communities what our democracy requires: a say in projects coming out 
of Washington. That isn't just common sense; that's also the law.
    On the heels of Hurricane Katrina, when there is widespread 
distrust as to whether government can protect the public, it is vital 
that we have in place mechanisms to hold government accountable. There 
are right ways and wrong ways to design a highway or even build a 
levee. By ensuring that there is good science and local input, the 
government is much more likely to get it right.
    Another allegation leveled at NEPA is that it has delayed energy 
development projects which has resulted in the gasoline price spikes 
experienced as result of Hurricane Katrina. In its September 9th 
announcement of this September 17 hearing, the Task Force release 
quoted Chairwoman McMorris as stating ``Throughout the NEPA Task Force 
we have heard from numerous industries that expensive and time 
consuming legal and procedural delays are preventing energy production 
and construction projects.''
    The unprecedented drilling boom in the United State indicates that, 
far from NEPA being an ``impediment'' to oil and gas development, it 
appears that there are fewer and fewer environmental safeguards in 
place to assure that exploration and development take place in the 
appropriate places with appropriate environmental safeguards. 
Meanwhile, industry profits are at an all-time high. The numbers below 
clearly show the National Environmental Policy Act is not standing in 
the way of energy production.
    The BLM has issued thousands more drilling permits than the 
industry can actually drill.
      In FY 2004, the BLM issued a record number of drilling 
permits on federal lands--6,052.
      But the industry drilled only 2,702 new wells on those 
permits.
    Natural gas production from federal onshore lands has significantly 
increased during the past decade.
      Natural gas production from onshore federal lands has 
more than doubled since 1992.
      And between 2003 and 2004, production increased from 
2.226 TCF to 3.133 TCF--a 42% increase in one year on western federal 
lands alone.
    While I am discussing energy related issues I'd like to acknowledge 
that over the past several years, we have seen successive records set 
in coal production. Present in our audience today is Maria Gunnoe of 
Bob White, West Virginia. Ms. Gunnoe did not have the opportunity to 
testify today but if she had she would have told you of the devastating 
floods that she and her neighbors in southern West Virginia experience 
as a result of mountaintop removal coal mining. Having had her property 
flooded 7 times in the last 5 years, Ms. Gunnoe would have asked this 
Task Force and the Congress for more protection not less. The 
depopulation of southern West Virginia as a result of energy 
development is an under reported story. Unlike Hurricane Katrina, it is 
a slowly unfolding tragedy, affecting people, communities and the 
economy. It is the kind of environmental and social tragedy we do not 
want replicated along our coasts or in other places that might have 
energy deposits.
    I also want to note that the controversies swirling around drilling 
in the Arctic National Wildlife Refuge and drilling off our coasts are 
pitched political battles in the Congress, not the result any 
bureaucratic delay.
    In conclusion, under the guise of speeding up projects, some want 
to waive environmental review requirements and shut people out of the 
decision-making process. As Americans committed to a democratic 
process, we can't let that happen. We can't let public officials in 
Washington, D.C. decide--without citizen involvement--what happens here 
in our backyard. NEPA is about democracy and open government--not 
delay.
    Thank you,
                                 ______
                                 
    Ms. McMorris. Thank you.
    Mr. Stiles.

         STATEMENT OF WILLIAM A. ``SKIP'' STILES, JR., 
                         WETLANDS WATCH

    Mr. Stiles. Hi. I am William A. Stiles, Jr., Skip Stiles to 
everyone but insurance solicitors over the phone. Thank you for 
holding the hearing, Madam Chairman. Congresswoman Drake, thank 
you for coming into our community--into your community.
    I am Vice President of Wetlands Watch, which is a local all 
volunteer group. We are engaged in the conservation and 
protection of wetlands, mostly through intervening in the 
permit process at the State, local and Federal level. By 
intervening, I mean we are lay citizens. We don't have lawyers, 
and we aren't environmental professionals. We all have day jobs 
outside the environment.
    We look at permit applications and comment on them. We also 
help educate citizens on how the laws work that affect them 
with regard to wetlands. We work with regulators and with the 
regulating community to try to find a better way to operate 
these environmental regulations.
    In this region, with such a large Federal footprint, on 
land with Navy in a number of the cities in the region and in 
the water--most of these are navigable waters, so the Corps of 
Engineers controls much of the waterways--we are constantly 
bumping into the Corps of Engineers and Section 404 of the 
Clean Water Act, which is implemented through the provisions of 
NEPA. So we have extensive experience with NEPA through this 
process, and also through the process is involved in citing 
some of the freeways and highways in our region which are 
funded by the Federal Highway Administration.
    In the process of this work we have come to rely on NEPA 
because, as I say, we are work outside of the environmental 
profession. We depend on the analyses that are done by the 
professional staff of these agencies to show us how the 
projects, either Federal projects or projects that the Federal 
Government is permitting--how they are going to affect our 
community, our quality of life, our property in this region.
    We also depend upon NEPA to give us accurate warning when 
somebody is up to something in our backyard that we should know 
about. Some say that this is a burdensome process, but let me 
give you an example out of West Norfolk here just across the 
river where it actually provided the citizens of the community 
of West Norfolk with advanced warning that there was a major 
project going to affect their community.
    Maersk Shipping is putting in a terminal just across the 
river here. It is a $600 million facility. Because they were 
dredging the bottom, they had to get a Federal dredging permit, 
and that permit required an environmental assessment through 
the provisions of NEPA.
    Back at the end of that document was a secondary impact 
statement that said 1500 trucks a day were going to enter, and 
1500 trucks a day were going to leave this neighborhood of 100 
homes over in West Norfolk. The only way those folks found out 
that this was in the works was when we in Wetlands Watch 
contacted them and asked them if they had--were aware of this. 
They were not.
    The city officials, of course, were aware of this traffic 
estimate about a year and a half beforehand, according to 
documents that I had. The bottom line is that these citizens 
raised a ruckus, and the officials of Portsmouth and 
representatives of the largest shipping company in the world 
had to come into their community in an evening session in their 
community church and explain to them eye to eye exactly what 
was going to be happening in their community as a result of 
this permit.
    This was the first and only time that these citizens knew 
that this was going to be happening, and it was because of the 
analysis that was performed by the Corps of Engineers and the 
publication of that analysis in the environment assessment that 
they held this meeting.
    The permit went forward. We were all looking for a full 
environmental impact statement. It went forward with an EA. It 
was a $600 million project. It dredged 10.3 million cubic yards 
of bottom. It was the largest dredging permit that ever went 
through without an EIS, went through in about a year and a 
half.
    So NEPA was not unduly burdensome in this case, 
unfortunately, from our perspective, because we felt that there 
were a number of environmental impacts and secondary impacts 
that should have been analyzed. But it illustrates the point 
that, for many citizens in this community, NEPA and its 
provisions has implemented, at least for us, through the Clean 
Water Act and by the Corps of Engineers, is a necessary 
safeguard, frequently the last line of defense that we have to 
know that either the Federal Government or someone seeking a 
permit from the Federal Government is going to be proposing 
environmental impacts that will have significant and 
detrimental impact on our community.
    It does level the playing field, but we feel in a positive 
way. I know that many in industry feel that it levels--it is 
leveling the playing field in the wrong direction, but again 
for the common citizen who doesn't have access to the 
professional expertise of Mr. Kelman's society members, we have 
to rely on the Federal Government to do these analyses and do 
them completely, and do them early.
    I would make an observation based on my experience with 
Wetlands Watch and with the 22 years that I've spent on the 
professional staff in the House of Representatives. In my 
experience, most of the problems with NEPA could be broken down 
three different ways.
    Sometimes NEPA is not involved at all. The NEPA issues are 
not involved at all. For example, the offshore oil and gas 
drilling issues on a moratorium and an Executive Order, NEPA is 
not yet involved in that.
    The issue of the wind farms off the Eastern Shore: The 
Corps of Engineers asked the applicant for that permit to 
provide it with information as to how he can explain the fact 
that the electricity being generated would overpower the grid 
of the Eastern Shore, because they hadn't done the work to 
actually move the energy any farther to the Eastern Shore.
    The applicant, who was not going to be operating that 
system, is, I guess, coming up with that answer, because the 
permit process has been suspended pending further information. 
So sometimes NEPA is not involved at all.
    At other times, it is the underlying statute. In the case 
of Tolich Ditching, for example, it is a dispute with the Clean 
Water Act, and the fight is taking place within the boxing ring 
that is NEPA; and folks don't like the Queensberry Rules within 
that boxing ring, but the actual dispute is back in an 
underlying statute, either there or the Endangered Species Act.
    Sometimes, oftentimes, as Mr. Kelman mentioned, the problem 
is that the Federal agency simply does not have the expertise 
or resources to properly implement the statute.
    So I would be careful. You know, my daughter rolls a white 
gumball across the carpet. It picks up a whole lot of stuff it 
doesn't want. So in your analyses here, be careful to parse out 
those things that are truly the problems and those things that 
are in the underlying statutes.
    Thank you very much.
    Ms. McMorris. Very good.
    [The prepared statement of William A. Stiles, Jr. follows:]

         Statement of William A. Stiles, Jr., Vice President, 
                             Wetlands Watch

    Madam Chairwoman, Members of the Task Force, thank you for inviting 
me to testify on the role of the National Environmental Policy Act 
(NEPA) in the Mid-Atlantic States.
    My name is William A. Stiles, Jr. and I am vice president of 
Wetlands Watch, a regional, non-profit, all-volunteer organization 
dedicated to protecting and conserving wetlands in Virginia. Wetlands 
Watch does not have paid staff and receives limited grant funding. We 
work with local citizens, regulators, and the regulated community to 
educate them about the need to conserve wetlands and the ways in which 
the regulatory system works to protect wetlands disturbance. I am also 
vice-president of the Virginia Conservation Network, a coalition of 
over 100 Virginia conservation organizations.
    Much of Wetlands Watch's work involves direct intervention in the 
wetlands permitting process. This brings us into constant contact with 
NEPA and its implementation in various agencies and statutes, mostly 
the provisions of section 404 of the Clean Water Act as implemented by 
the United States Army Corps of Engineers (USACE). We also deal with 
NEPA-like provisions in the state laws and regulations administered by 
the Virginia Department of Environmental Quality and the Virginia 
Marine Resources Commission; two agencies that work with the USACE on 
joint permit applications for disturbances to tidal wetlands. Finally, 
we have been involved with NEPA as it is implemented through Federal 
Highway Administration project approvals.
    Our group is made up of common citizens who all have ``day jobs'' 
outside of environmental organizations. We see NEPA as a tool for 
citizens such as ourselves to be involved in environmental regulatory 
decisions affecting our community and our lives. Without NEPA, we would 
be powerless against big government or big corporations proposing 
activities that would disturb our region's environment.
    The federal government directly or indirectly controls much of this 
region's land area. The federal government owns forty percent of 
Norfolk and sixty percent of Portsmouth. Large expanses of Virginia 
Beach and Chesapeake are under federal government ownership as well. 
Navigable waterways, which thread throughout this region, are under the 
control of the USACE.
    NEPA is one major protection available to the citizens of this 
region when the federal government is considering projects affecting 
our lives, property, and communities. NEPA guarantees that citizens can 
see and comment upon analyses of the project's environmental costs and 
economic benefits, its environmental impact, alternatives to the 
project, and long-term impacts on the community.
    Some view this process as unnecessary or burdensome. For the 
residents of West Norfolk in the City of Portsmouth, NEPA was their 
only hope.
    West Norfolk is a small community of about 100 households of 
working class residents in Portsmouth. They are just upriver from the 
new Maersk Marine Terminal that will bring 1,500 trucks a day through 
their neighborhood. The off ramp to accommodate that traffic will 
involve the condemnation of three homes in the community.
    The residents of this community only found out about the truck 
traffic because of the draft Environmental Assessment (EA) done to 
allow the dredging of the Elizabeth River near this new Terminal. The 
details of this plan were in the secondary impacts section of the draft 
EA, an analysis required by USACE's implementation of NEPA in its 
regulations and guidelines. These facts were known to city officials 
more than a year before the Maersk permit was filed, but were not 
shared with the residents of West Norfolk.
    When the residents of West Norfolk were made aware of the draft EA, 
days before the public comment period expired, they asked for a delay 
in the permit approval and wanted public hearings on the traffic 
impacts to their community. In lieu of that, a delegation of Portsmouth 
city council members and Maersk representatives held a civic meting in 
a community church in West Norfolk to meet with the citizens.
    I was at that meeting and my faith in democracy was restored to see 
insensitive public officials and representatives of the largest 
shipping company in the world meeting with the citizens of this small 
community as equals. The Maersk representatives explained in public for 
the first time what was going to happen to these people and their 
neighborhood.
    That port project was approved and the dredges are working now not 
far from here on the Elizabeth River. The approval time from 
application to a finding of ``no significant impact'' was less than one 
year, this for one of the largest dredging projects in the Nation, 
involving 10.3 million cubic yards of material. Wetlands Watch and the 
citizens of that community wanted the project to move to a full 
Environmental Impact Statement, but we did not prevail.
    However, despite our disappointment in the USACE decision to issue 
the permit without full review, in that one evening in West Norfolk, we 
had a small victory. The facts revealed by the NEPA process allowed 
those folks in West Norfolk to compel politicians and corporations to 
come to them and explain themselves.
    I don't know who would want to ``streamline'' or change this 
process. Democracy was well served under NEPA that night. I imagined 
Thomas Jefferson looking down and chuckling at the scene.
    I can cite other examples of NEPA making citizens in this region 
aware of proposed projects looking to take their property or adversely 
affect their quality of life. I can also cite examples of where NEPA 
was not fully followed and we are now paying dearly for it, such as the 
$70 million + restoration effort on the Lynnhaven River.
    The Task Force background material also mentions affordable energy 
and the effects of Hurricane Katrina. The press release issued by the 
Task Force on September 9, 2005, mentions improving NEPA to ``prevent 
these barriers to energy production and development in the Mid-Atlantic 
states.''
    I am aware of proposals to allow the drilling of gas and oil off 
the mid-Atlantic coast, drilling now prohibited by a congressionally 
imposed moratorium and a Presidential executive order. However, lifting 
this moratorium does not involve NEPA, but rather passage of 
legislation and the rescinding of an executive order. This action would 
involve considerable political capital since most of the elected 
officials in the mid-Atlantic region oppose lifting the moratorium.
    This year a bill was passed by the Virginia General Assembly 
endorsing offshore gas and oil drilling. The terms of the legislation 
were not publicly debated during passage due to legislative sleight of 
hand. In fact, the city most affected by this legislation, Virginia 
Beach, did not even know the General Assembly had passed such a bill 
until they were contacted to ask for Governor Warner's veto of the 
bill.
    The only public debate on the terms of this offshore gas and oil 
drilling bill was in the Virginia Beach city council chambers, as 
advocates and opponents had to explain their positions on the bill. The 
Virginia Beach hospitality industry was opposed, as were many citizens 
groups. In the end, Governor Warner vetoed the legislation.
    My point in bringing this up is to illustrate the shortcuts that 
can happen in government processes, shortcuts that exclude regular 
citizens. NEPA provides a safety net, a guarantee that any significant 
federal action, or federal action taken on behalf of private industry, 
will require analysis, public notice, and comment. To ``streamline'' 
NEPA is to threaten the guarantee that our region's citizens, even if 
excluded from legislative decisions affecting our natural resources, as 
they were this year with the natural gas drilling legislation, will 
always be included in the final decision on permitting the use of those 
natural resources.
    Finally, on Hurricane Katrina and the role of NEPA I will comment 
that I think it is more important to fix the problem than fix blame. 
From my perspective, the problem is that the potential damage from a 
storm increases with each acre of wetlands lost, and Louisiana loses 
about 400 acres of wetlands per week. Department of the Interior 
information cites a value for hurricane protection from wetlands in 
Louisiana of between $1600 and $1700 per acre.
    USGS's Louisiana Coast website mentions the threat to oil and gas 
pipelines from the loss of wetlands and barrier islands on the Davis 
Pond website:
    ``This degradation of the landscape not only increases exposure of 
pipelines to the periodic ravages of storms and hurricanes, but to the 
constant erosive force of waves that now travel unimpeded across vast 
stretches of open water that were once sheltered.''
    The point is driven home by this statement, so relevant to today's 
hearing, made by Richard Greene, the Regional Environmental Protection 
Agency Administrator for Region 6, which includes the Gulf Coast:
    ``No other place on Earth is disappearing as quickly as the 
Louisiana coastal ecosystem, where a half-acre of land turns to open 
water every 15 minutes. The impact of such a loss includes destruction 
of nationally important energy production infrastructure and the 
possible relocation of over 2 million people. At risk are approximately 
30,000 oil and gas production wells, some 20,000 miles of offshore 
pipelines, and thousands more miles of pipelines inland. The decline of 
the coastal marshes would dramatically effect the integrity of a 
national energy infrastructure, as well as nationally significant 
commercial fishing, transportation, and recreation industries.''
    So to come full cycle on my remarks today, it seems that the 
conservation and protection of wetlands is one of the most important 
things we can be doing to protect our economy. And that effort involves 
the rigorous application of the National Environmental Policy Act.
    In Hampton Roads, wetlands provide sediment and nutrient reduction 
for free. Once wetlands are removed, we have to pay for the 
environmental services they provided, through increased waste treatment 
fees, loss of water quality-related economic activity, and through 
direct payments for remediation efforts, such as on the Lynnhaven 
River. Nationally, especially in the Gulf Region, wetlands provide 
other services, such as buffering from violent storms. We need to 
conserve and restore wetlands to better avoid the economic shocks such 
as we are experiencing now.
    NEPA forces us to do some of the analyses that insure we adequately 
value wetlands. NEPA requires that we look at ``the relationship 
between local short-term uses of man's environment and the maintenance 
and enhancement of long-term productivity, and any irreversible and 
irretrievable commitments of resources which would be involved in the 
proposed action should it be implemented.''
    I am left to conclude that if we had done all that NEPA required, 
we would have made different decisions along the way--both in our 
region and nationally--that would have lessened the bills we are paying 
today.
    Thank you again for the opportunity to present my views today on 
this very important issue.
                                 ______
                                 
    Ms. McMorris. I just want to thank everyone for being here, 
each of the panelists, for taking the time to put together 
testimony, thoughtful testimony from your experiences and 
backgrounds.
    At this time, we are going to start the question and answer 
period. Just before we do, I want to make a couple of comments.
    In 1970, NEPA was signed by President Nixon into law. It 
was the first of many environmental laws that were passed in 
this country, and today we are simply asking the question, can 
we do better? We all share the goals of having clean air and 
clean water and a healthy environment, and the question before 
us is if we can accomplish those goals in a better way.
    NEPA is the process by which we look in making those 
decisions, and no one is suggesting that we do away with public 
participation. I value public participation. I value local 
input, and encourage people to be involved. I think that the 
best decisions are made when more people are involved.
    The standards, the environmental standards, are actually 
laid out in other laws, whether it is the Endangered Species 
Act, the Clean Water Act or the Clean Air Act. NEPA is simply 
the process by which we take into consideration the impact, the 
environmental impact, and make the best decision possible.
    This has been our fifth field hearing that we have held 
across the country, and it has been disappointing that some--
and it was characterized in the press yesterday that this was 
possibly a dog and pony show. I personally invited Mr. Besa to 
be here today, and at every hearing around the country we have 
invited either the Sierra Club or other environmental groups to 
be participants on this panel. We encourage their 
participation.
    We have also invited people from a whole host of other 
backgrounds and industries that have been impacted by NEPA. We 
have been welcoming that input from everyone.
    Some of our witnesses today suggested that there has been a 
lot of talk about Hurricane Katrina and who is to blame. This 
Task Force has not pointed the finger at anyone. We have 
acknowledged that there are potential roadblocks and 
bureaucratic red tape that NEPA may have created prior to the 
hurricane, but I believe there will be a more appropriate time 
and place for us to explore those issues; and just as some 
legislators must look at what we can do better to respond to a 
disaster, heaven forbid, we also need to look at what we can do 
to better prevent a disaster the next time.
    If I have learned anything through this process, it is that 
NEPA is certainly the law for allowing public input in 
environmental consideration, but it is not the law to be used 
to simply stop or stall projects simply because you disagree 
with it. So that is what we are trying to accomplish. I 
appreciate everyone being here. I appreciate the panels for 
being here.
    I am going to turn it over to Ms. Drake to start the 
questioning. I have to sneak out just for a couple of minutes, 
but I will be back. Thank you very much.
    Ms. Drake. Thank you, Chairman McMorris. First of all, I 
would like to point out to you that there are sheets in the 
room that, if you would like to fill one of these out and give 
us your comments--Otherwise, as Chairman McMorris told us, you 
can submit comments by e-mail, letter, however you would like 
to do it, but this may make it easier for you, if you would 
like to do it today.
    I would like to start with Senator Wagner, because I know 
that he is on a tight timeframe, and I thought we would ask him 
first in case he does need to leave.
    Senator Wagner, can you tell us what took place in the 2005 
General Assembly session regarding the issue of natural gas, if 
there are things you are working on now, and what you think may 
take place in '06?
    Mr. Wagner. Congresswoman Drake, let me----
    Ms. Drake. Oh, you need a mike.
    Mr. Wagner. I need a mike. Let me respond by giving a 
little background on how we came to the 2005 General Assembly 
session. We have a joint commission studying the needs of 
manufacturers throughout Virginia. We felt that was absolutely 
essential, because we have lost 70,000, as Mr. Holloway has 
implied, at the paper mill. We have lost 70,000 manufacturing 
jobs around Virginia.
    Ms. Drake. Senator Wagner, I asked to serve on that, and 
then I ended up in Congress. So I apologize for not being there 
with you.
    Mr. Wagner. Well, we certainly missed your participation, 
Congresswoman Drake, but your support of it while you were 
there was certainly encouraging.
    We all recognize that. We all recognize how important 
manufacturing jobs are. They are the jobs that represent, as I 
put it, with lack of an MBA of turning dirt into money. Most 
people call it value added or those that are not just service 
economy, but actually inject money into the economy of this 
country.
    So when you lose 70,000 jobs in a relatively small 
manufacturing state like Virginia, it causes you a great deal 
of concern. So we delved into the reasons why. Now some of them 
are out of our ability to control, things like furniture and 
textiles. We simply cannot compete against the labor rates that 
we see offshore, particularly in China and certain other places 
in the Orient, India being one of those. However, there are 
several industries that we remain competitive in, and do.
    The other issue we found is that the manufacturing 
industries are heavily reliant, as you might imagine, on 
energy. One of those issues that they are very reliant on, more 
so than perhaps we think of in home heating, is the issue of 
natural gas. It is extremely important in many manufacturing 
processes.
    If you mention the paper and pulp industry, it is heavily 
reliant on natural gas. Anybody involved in the machining and 
tools that involves heat treating processes, very heavily 
reliant on natural gas. In fact, in Hopewell, Virginia, the 
Honeywell plant consumes 50 million cubic feet of natural gas a 
day and produces primary product as nylon and fertilizer.
    For those that may not be aware, natural gas is a basic 
building block, not a heating element but the raw material that 
is ultimately converted into fertilizer through a chemical 
process. So now when we see the exorbitant rates we are seeing 
in natural gas, not only has it affected manufacturing jobs, 
obviously those that rely on heating their homes, but it also 
directly impacts the agricultural community due to the high 
cost of fertilizer, not to mention the high cost of just 
operating machinery to do that.
    As you are aware, Congresswoman Drake, that agricultural 
products represent a significant export from this country. It 
is one of the few areas where we do have a positive balance of 
trade, and it is one of those areas that impacts virtually 
every farmer due to the skyrocketing cost of fertilizer.
    So we felt it was very important to solve, to see what we 
could do in the Commonwealth of Virginia to resolve the issues 
of natural gas or at least to, hopefully, mitigate the prices, 
because it is so essential to so many jobs, as Mr. Holloway has 
already said.
    In the course of our investigation, through the Federal 
Government, Department of Interior conservatively estimates 
there's some 30 trillion cubic feet of natural gas located 
offshore in the Atlantic Basin.
    Then we looked in, is there a precedent? What we found 
already is that Canada is already offshore in the Atlantic 
Basin, successfully recovering 500 million cubic feet of 
natural gas per day, and supplying some of that back to the 
United States, interestingly enough, just off of Nova Scotia, 
just off the, if you will, righthand upper corner of the map 
here.
    Based on that analysis and looking at it, plus what we've 
seen as the outstanding safety record of the offshore industry, 
we submitted legislation, because there is a Federal moratorium 
on the Atlantic Basin in terms of just even surveying, much 
less exploration and development of the resource. Initially, 
the bill was submitted as just conducting the surveying. Can we 
find out if resources are available off there in commercially 
recoverable amounts?
    As that bill wound through, through calls I've got from 
Washington, in fact, and from the House Resources Committee 
talking about some proposed legislation in Washington that had 
to do with SEACOR--and the interesting thing about SEACOR, it 
stands for State Enhanced Authority over Coastal and Offshore 
Resources, gave Virginia actually veto power out to, depending 
on the version of the bill you were looking at, 40 to 60 miles, 
including everything. It could veto any type of exploration, 
which is currently a power Virginia doesn't enjoy. Virginia 
enjoys that power out to three miles. Beyond that, Virginia has 
no say. We thought that was probably a good idea that Virginia 
had that say-so.
    The other interesting aspect of that is that royalty 
payments that derive from those that would explore and develop 
those resources that are paid to the Federal Government. For 
the first time the Federal Government said we are willing to 
share those resources with the States, and that represented--A 
conservative estimate from your Committee, Representative 
Drake, was $3.5 billion to the Commonwealth of Virginia over 20 
years.
    We thought that was an interesting proposal, that here we 
have something that is reliant on our manufacturers, that helps 
our agricultural community, that has a proven safety record of 
some of the cleanest--well, the cleanest burning fossil fuel, 
natural gas, may be available in commercially recoverable 
amounts off the coast of Virginia, and provide a new source of 
revenue that doesn't cost the taxpayers any money. We thought 
that was a pretty good win idea.
    We had the legislation modified. It passed the House. It 
passed the Senate. Ultimately, it went on to the Governor where 
the Governor subsequently vetoed it, not because of the 
objection to offshore drilling, I might add, but because, as he 
stated, he wanted to study the issue further and wanted further 
information, and he felt it was inappropriate that the General 
Assembly--The actual bill is directed to the Virginia Liaison 
Office to do that.
    So that was the legislation as it transpired through that. 
I will say that the Governor is continuing with the study. I 
think the results of what the Governor is finding is very 
similar to what our manufacturing committee found. But since 
that time, we have taken a look at, and have been working for a 
number of months pre-Katrina, on legislation that basically was 
a Virginia energy bill.
    We have tried to look at some of the things that we felt we 
read in the Senate--or the Federal energy bill that's recently 
passed, but we are taking a rather unique approach in 2006. We 
are talking about it now.
    The legislation is still in a draft form and being worked 
on at this point in time, but much of what you've heard from 
each and every person up here, I believe, was when the 
applicant applies, when the applicant pushes forward with, when 
the applicant does this.
    One of the approaches that we are looking at here in 
Virginia and taking a very serious look at--and we have heard 
Senator McCain as he talked, and we are certainly one of the 
aspects of this bill, says it is the policy of the Commonwealth 
to support renewable energy. It will be the policy of the 
Commonwealth to support, if you will, nuclear power generation.
    Those types of things will be put in there, but we are 
going to take it a step further, because we feel it is 
important that, if it is a policy of the Commonwealth to 
support renewable energy, that we also come through and 
evaluate Virginia and say where in Virginia we might think that 
is appropriate to establish that, whether it be wave driven 
generation capability, whether it be wind driven generation 
capability, whether it be those types of things.
    We think it is appropriate that we analyze Virginia up 
front as a government, not as a permittee but as a government, 
and come back and say we think these locations are OK. It 
doesn't relieve any applicant from putting them in the permit 
areas, but we will say that Virginia has done a number of 
legwork with the Sierra Club, with the Wetlands Watch to say is 
it appropriate in these areas? Do we want to support it?
    We think it is the policy of the Commonwealth to support 
nuclear power. We have an outstanding track record in Virginia 
at Surrey, North Anna nuclear power plants to do that. We 
recognize that it's zero emissions. We recognize there are some 
problems with it, but given some of the alternatives, that may 
be the way to go.
    If we think that is the right policy decision to do that, 
we ought to step forward in Virginia as our regulators, as our 
government, and say we think it is probably appropriate that, 
if we want to pursue that in Virginia, that you probably ought 
to look at these areas to do it. Doesn't relieve you of any 
permitting requirements. Doesn't relieve you--and we certainly 
can't impact the Federal Government. But as we listened to 
Senator McCain in Washington talk about, and highly supportive 
of--may not support the approach, but saying that 10 to 15 
percent, whatever the policy was, of every utility needs to be 
renewable source energy and, if not, then you are going to come 
up with a quantity of money to pay back to the Department of 
Energy for not meeting that goal.
    We think it is incumbent that, if the Federal Government 
wants to make that policy, the Federal Government also says, 
and here is where you can do it. Here is where we think it is 
appropriate for you to do it.
    I think it is not enough for us policymakers to say you 
will meet these goals, you will meet these criteria, but I 
think in this day and age it is very important that we also 
establish where it is we think we can do it.
    So I'm sorry. It's a bit long-winded answer to your 
question, but I wanted to--It was a multiple answered question, 
and I felt it was appropriate to do that. And I'm sitting back 
one, and I know you know that, and I know everybody here, and I 
can--you know, the make-up of the audience behind us, and I see 
that. But the overriding issue that I am hearing within my 
district right now is the cost of energy, the affordability and 
availability of energy, and the real policy decisions.
    I think we really look forward to a winter of--and I have 
already talked to Dominion Resources. They say that their 
account that they have set aside for money to help the elderly 
and those that can't afford energy is going to be tapped, and 
they don't know if they can replenish the kind of money to 
provide the subsidies. But we are looking forward in the short 
term to a real, real crisis this winter with home heating.
    You have heard some instances on natural gas, the 
availability. Typically, this time of the year they are 
reliquefying it to store it in the northeast to meet the 
demands. That is not ongoing to the tempo that I would like to 
have right now to meet those demands. So we run a serious 
problem, but I would like to close with a question.
    Basically, I have heard from everybody, NEPA is not the 
problem, NEPA is not this. We have a systemic problem. We would 
not have energy prices where they are today. It spiked to 11.50 
per thousand cubic feet post-Katrina, but it had already risen 
from $1.50 to $2.00 or $2.50 per thousand cubic feet in 2000-
2001 to 6.50 prior to Katrina, a threefold increase in 
something that is absolutely essential for our economy, and now 
spiking to 11.50.
    We have a problem. Is NEPA part of it? May be. Probably. I 
hear no. I hear no, but I also hear the same objections. We 
have worked at length on the King William Reservoir, for 
instance, a vitally needed water supply project. You have heard 
some talk about that. I am not going to debate it, but there 
are certain things we have to do, and the constituents 
understand there is a problem now.
    They understand there is a serious energy problem in this 
country, and it needs to be solved short term, and we need to 
look at the longer term, some of the things we've talked about, 
about a hydrogen economy, moving toward hydrogen cells and 
those types of things.
    We had the ability to solve it. We had the resources. We 
had the technology. We knew how to do it.
    Ms. McMorris. Sorry, let me take--The question and answer 
period is really between Ms. Drake and myself, and we will 
continue as long as we would like.
    Mr. Wagner. Thank you. So I don't want to go on, you know. 
Obviously, the audience is just not in the mood to hear some of 
the facts. Thank you.
    Ms. McMorris. Thank you.
    Ms. Drake. Well, Senator Wagner, before you finish up--
Madam Chairman, if it is all right--looking at Hurricane 
Katrina and some of the other hurricanes that have moved 
through the Gulf Coast, would you say that today's offshore 
production is certainly much more environmentally acceptable 
and that there was very, very little damage to our environment 
with it?
    Mr. Wagner. Well, I have heard when the bill was going 
through, when we started in Virginia Beach there were several--
you know, you are going to have oil spills on the beach, and 
you are going to have those types of things. The data that I 
have received from the platforms, the platforms stood up very 
well as designed. There were some problems in close to shore, 
interestingly enough, but there was no spills that I'm aware 
of.
    I know the pipelines were done. They worked as advertised. 
They were shut down at the bottom of the ocean. The shutdown 
worked. I understand there are some pipeline problems, and they 
don't want to bring those pipelines--bring the product to shore 
along the pipeline from the platforms. They want to bring those 
pipelines on line again until they are sure they are intact.
    I will say there were significant spills associated with 
Hurricane Katrina. I understand it is in the range of 44 
million gallons. All that I am aware of that were caused were 
from shoreside storage facilities, due to either levee breaks 
or due to just a failure under the wind storms. The last data I 
got was an e-mail stating--I think there were some 44 million 
gallons from some 47 different sites, I think 10 or 11 I am 
recalling from memory, where they considered major, in excess 
of 100,000 gallons. But all that I saw were from shore products 
and shoreside storage facilities.
    You know, one of the considerations we may want to consider 
if we are going site additional shoreside facilities, we might 
want to pipe it inland and get it significantly away from the 
shoreside, because the vulnerability of being so close where 
there is a potential for flooding makes that a fairly likely 
event, and one of the considerations that may want to go into 
the policy is, when you do site new storage facilities, that 
you site them amply afar away. It is easy enough to pipe a 
product underground to a storage facility significantly inland 
so you can avoid those types of problems in the future, and 
look as we rebuild some of the infrastructure to perhaps 
looking with that eye. But I understand that the spills are 
fairly well contained and clean enough.
    Ms. Drake. Thank you, Senator Wagner. I appreciate your 
answers. Appreciate your being here. I thought it was 
interesting you brought to our attention what we all did in the 
early Seventies, which was the wood stoves and the fireplaces. 
I got pretty darn good at those wood stoves, banking them down 
to make them go all night. I would prefer not to do that again, 
and I don't have a fireplace anymore. So we are going to listen 
to you and watch you.
    Mr. Wagner. Well, I can just--If it is an unaffordable 
product or people are having trouble affording it, apparently, 
as I read the newspaper, it would be the natural human reaction 
to go out and start to buy the firewood, and then we need to 
start asking ourselves as a policy, does a million fireplaces 
produce more pollution in the air than a well regulated plant 
that would not cause those to come on line and have to have 
those million fireplaces?
    Ms. Drake. Thank you.
    Mr. Wagner. And I thank you again. And again, Madam 
Chairman, I apologize. I have something else on my schedule, 
and I need to go.
    Ms. McMorris. Yes, I understand.
    Mr. Wagner. Thank you so much.
    Ms. McMorris. Thanks for being here.
    Ms. Drake. Madam Chairman, I will yield back to you.
    Ms. McMorris. Very good. I would just remind the audience, 
this is a Congressional hearing, and everyone deserves the 
respect that you would like to see afforded if you were sitting 
right up here also. So I would just ask you to keep that into 
consideration.
    I wanted to--Feel free to excuse yourself whenever you need 
to go, Senator Wagner. I wanted to move to Mr. Shafer. 
Appreciate you being here from Louisiana. I wanted--You laid 
out some recommendations, very specific recommendations as to--
in your testimony as to how you felt the NEPA process could be 
improved.
    I wanted just to ask you a simple question as to the impact 
that you thought any of those recommendations may have on 
public participation, if any of those recommendations would in 
any way gut public participation.
    Mr. Shafer. Not at all.
    Ms. McMorris. OK. Second, could you just talk to us about 
the time involved in developing an EIS and permitting a new 
pipeline, and how long does it actually take to build on after 
the permitting process is completed?
    Mr. Shafer. I'll be glad to. Most of the major projects 
take at least a year and a half to two years on the planning 
side up front. That is before--And basically, usually the 
applicant will go out and hold its own open houses, touch base 
with the public in the area, you know, look at different 
engineering scenarios that might satisfy the movement of the 
product through the area.
    So we look at various, oh, potential corridors, and it is 
done in different ways by different companies. But essentially 
that kind of flows into what you hear referred to at the 
Federal Energy Regulatory Commission as the pre-NEPA and a 
collaborative, cooperative approach.
    Some of my suggestions that asked the Task Force to take a 
look at would, I think, further streamline that and improve 
that. It is not taking away from the public participation at 
all. In fact, the team permitting idea actually opens it up 
even more.
    I have participated in a very large product where team 
permitting was used, and it was used very effectively. We did 
the entire EIS process in about 18 months, because we worked 
two years up front using a team permitting. So I think there 
are ways to look at it, not diminish it at all, but look at 
opportunities and avenues.
    I do have a--If I might show you a display. I've got a 
chart.
    Ms. McMorris. OK.
    Mr. Shafer. This kind of gives you a visual impact. This is 
a Millennium project, Millennium Pipeline. It actually starts 
in 1997 and goes through year 2006. This project--What it is 
reflecting here is basically the entire environmental approach, 
not just the NEPA. But the NEPA approach is in here.
    So just to give you an idea, you asked about timeframes, 
and this gives you an idea of what we go through. We just 
filed--On Millennium we just filed a--made an amended filing, 
and it took up pretty much, just that filing alone, the trunk 
of a car just to haul one set. So it's just a huge volume of 
material and data.
    Part of what our suggestions are, at least INGAA's 
suggestions--Part of our suggestions deal a lot more with 
taking a look at this collaborative and cooperative approach, 
and see if there aren't some ways that, even at the Federal 
level--and I know the FERC has made great strides in promoting 
this, but getting all the agencies to look at--and I mentioned 
it in my oral presentation--more of a simultaneous look, which 
is the way NEPA was originally written, not a sequential where 
a lead agency would get the material and then have to farm it 
out to another agency, and it takes time for those comments to 
come back, and people comment. Then it goes out to another 
agency and then back to the lead agency.
    What the FERC has promoted is there is a simultaneous look. 
So we get all the issues out on the table. They are identified. 
There are sensitive issues that can be addressed. Mitigation 
can--Appropriate mitigation can be called for, and that's fine. 
I think then we move forward.
    Ms. McMorris. Would you talk to us a little bit about 
natural gas prices? I understand we are going to be seeing some 
significant increases. I've heard 71 percent type increases in 
natural gas prices. Can you talk to us about Hurricane 
Katrina's impact on gas storage?
    Mr. Shafer. I can. It is steadily improving. What we saw 
just a few days ago was delays in getting gas to underground 
storage, but the reports that I had the middle of this week was 
that that is improving, and that is why I said in my oral 
presentation that those delays are basically going away pretty 
quickly.
    So I just haven't seen any in the past day or two.
    Ms. McMorris. OK. Then a quick question of Mr. Holloway. 
Would you talk about what you may feel the increase in natural 
gas prices may mean to the Franklin paper mill?
    Mr. Holloway. Yes. It has a big impact on the Franklin 
mill, because as you know, if natural gas increased, it will 
cause us to have to have our company to pay out more income for 
purchasing gas and energy. Therefore, it will take away the 
profit that it will have and for employment with the people 
that were employed here.
    So, therefore, I feel that natural gas is a big--would have 
a big impact, and also if it gets so tremendous, our companies 
close. That would be a terrible impact for the City of Franklin 
and the entire Tidewater area and North Carolina. So I do feel 
that it would be a big block impact on what could happen with 
us and our company.
    Ms. McMorris. OK. Very good. Ms. Drake?
    Ms. Drake. Thank you, Ms. Chairwoman. Mr. Kelman, you 
suggest in your testimony that there is nothing in NEPA that 
requires these hug encyclopedia type documents for NEPA. We 
just heard from Mr. Shafer about one copy filling a trunk.
    Through the hearings across the nation, we have heard from 
many agencies. I mean, they will hold their hands up to take 
pictures beside the documents. So if you don't think there is 
anything that requires it, why do they spend so much time 
preparing these documents?
    Mr. Kelman. Well, you have to look at the project. I mean, 
some projects are simple. When I fill out my income tax, it 
might be two pages, because I have a simple situation. When 
General Motors fills out theirs, it could take several vans 
worth of tax information. It is the same thing about 
environmental assessments.
    When you are doing an environmental impact statement or 
environmental assessment, it depends on how complicated the 
project is. If it is a simple project, you are going to have a 
simple statement. If it is a complex project, then I think we 
owe it to the public to bring out all the environmental issues 
involved.
    Ms. Drake. Do you think--You mentioned also about judicial 
review. Do you think one of the reasons that there is so much 
documentation and so much is required is simply to defend a 
project within court, because people could very easily end up 
in court through this process, and not because of an underlying 
law, as we heard Chairman McMorris talk about, and I think Mr. 
Stiles referred to that as well, that--He mentioned--I wondered 
exactly what you were referring to, but if people are suing 
under NEPA rather than under Clean Water, Clean Air, Endangered 
Species, if that's what all those documents are all about.
    Mr. Kelman. They might be the feeling of the attorneys for 
those places that there are needs. They have to put all their 
ducks in a row in anticipation of judicial review, but I'm not 
an attorney. So I really can't----
    Ms. Drake. Because this particular paragraph says that it 
should normally be less than 300 pages, and that is really not 
what we've seen, both from Mr. Shafer or from other people. But 
let me finish with Mr. Stiles, because I took a note when you 
said that, that you said--I interpreted what you said to be 
people are suing under NEPA rather than under an underlying 
Act.
    I think it is important to clarify that NEPA, as Ms. 
McMorris said, was passed first, and there have been many 
environmental laws since. So I would wonder why--maybe I 
misunderstood you--why you would sue under NEPA rather than 
under the Act that you feel has been violated. That is the way 
I interpreted it.
    Mr. Stiles. It's sort of like the analogy that I gave about 
a boxing match being fought under the Marquis of Queensberry 
Rules. NEPA provides the rules and standards as implemented 
through agency regulations, and the disputes frequently are an 
interpretation, say, of the Clean Water Act and its 
definitions. But the way you get there is by using the 
Queensberry Rules, by using the NEPA rules, but the actual 
problem is in some cases an inconsistency in the original Act 
or a changed definition--a changed interpretation of the 
definition in the original Act itself.
    So you sue under NEPA to get to the original Act, but the 
actual problem is in the original Act, in some cases.
    Ms. Drake. And why wouldn't you just sue under the original 
Act?
    Mr. Stiles. NEPA sets the standards. Again, the decisions 
are made within the agencies under the standards as implemented 
through the agencies and their regulations. So when someone--
When the Corps of Engineers is making a decision under Section 
404 of the Clean Water Act, for example, those determinations 
are set by these Queensberry Rules, by NEPA.
    So the problem is in the statute, but the problem--The way 
you get at it is through the rules--through the standards in 
NEPA.
    Ms. Drake. My understanding of NEPA, if that's all right, 
is that it provides for input and interaction within government 
agencies, Federal agencies. It allows for public input, and it 
requires that there be alternatives. But you are saying it is 
also being used--Is it easier--So it is obviously easier to sue 
under NEPA than under what you feel has been violated.
    Mr. Stiles. Well, you challenge the Clean War Act, for 
example, because of a standard that NEPA has set--well, a 
standard that the Corps of Engineers has set in their becoming 
compliant with NEPA. In other words, NEPA itself is, as you 
know, one of these sort of elegant, three-paragraph statutes 
that really doesn't give you a whole lot of detail.
    Ms. Drake. It is a process.
    Mr. Stiles. Yes. The way it is implemented is each of the 
agencies is required in their activities to meet the standards 
that NEPA has set forth. In fact, the Council on Environmental 
Quality has set standards that each of the agencies then has to 
implement. So it's sort of down to the agency when they are 
making the determination on Section 404 of the Clean Water Act. 
They are doing it in accordance with these Queensberry Rules, 
with the NEPA standards that have been set.
    So you are suing--You are using NEPA to challenge the Clean 
Water Act is what you are doing. But the problem itself is in 
the way that the definitions in the Clean Water Act have been 
implemented.
    Ms. Drake. Thank you for that explanation. I just have one 
last question for him. That is: Your Wetlands Watch website 
states, ``The regulatory system is set up to be adversarial. 
While this may seem unfortunate, it's the way that it is.''
    Since we have just had this discussion about NEPA being a 
process, don't you think that that in itself would ask for 
reform, that it should not be an adversarial process within 
NEPA?
    Mr. Stiles. Well, I think that any regulatory process, 
because it involves the balancing of a current economic need 
with some future environmental impact, is always going to be a 
conflict; because what you are doing, in effect, is you are 
taking future costs that are somewhat unknowable and frequently 
have been disregarded, but you are taking those future 
environmental costs, and you are bringing them into the current 
regulatory decision.
    For example, some estimates by the Department of Interior 
say that the hurricane prevention potential of an acre of 
wetland is 1600 bucks. Well, what the regulatory process does 
is it goes out and it does those kinds of analyses, and it 
says, OK, you want to disturb a wetland. Ordinarily, there is 
no value associated with it, but wait, now we know that there 
is a potential hurricane potential. We know that it is a 
recruitment ground for a number of fisheries.
    You know, you begin to put value on the wetlands, and what 
the regulatory process does is it says to the person, even the 
Federal agency or the individual who is seeking the permit--It 
says, well, you are going to make some economic gain off of 
this, but we as a society are going to lose these future 
economic benefits. So we have to balance them out.
    So the conflict comes, because I'm an applicant, I am 
going--I want to put a pipeline in. You are telling me I got to 
worry about these other economic benefits or these 
environmental benefits.
    That's where the conflict comes, because that's what NEPA 
does. It basically balances the--It's a cost/benefit entry in 
many cases, and it balances current gain against future losses, 
especially where there are irreparable damages to the 
environment, and it is necessarily a conflict, because if I am 
a profit making operation, I want to put my project in, and yet 
you have to take all the societal costs into account in issuing 
a permit. That's the way the law was written.
    Ms. Drake. I will yield back.
    Ms. McMorris. OK. Thank you. I wanted to go to Mr. Besa 
next.
    We have heard concerns dealing with NEPA. You made the 
statement that NEPA doesn't stop projects. We have talked to 
folks from transportation departments across the country, 
public works. And although you didn't mention it in your 
remarks, the Sierra Club is often concerned about urban sprawl 
and urban growth issues.
    It is not unusual for transportation projects from planning 
to actual time when the road is built for it to be years and 
years, and in that period there's been many examples where the 
Federal Highway Administration's NEPA analysis will be upheld 
ultimately, but yet during all of the litigation that takes 
place, roads are not built, projects do not move forward.
    So isn't that in essence stopping the project?
    Mr. Besa. Well, I don't think you would consider it 
stopping the project when basically this process is set up to 
evaluate, as Mr. Stiles said, the various competing interests. 
That's really what is involved here, and it does take some 
time. Democracy takes time.
    You know, when you've got a complicated--It may seem simple 
out building a road, but when you figure that a road, for one 
thing, may destroy wetlands that have value in terms of flood 
impacts, when you consider that a road has secondary impacts in 
terms of stimulating development that may make a demand on 
local governments in terms of schools and police protection and 
a variety of other things, there really gets to a real 
balancing act involved.
    It's not just simply building a road. It is considering all 
the impacts the road has on the environment, on the economy, on 
the communities.
    I think all we need to do is look back to before NEPA 
during the time where we started building the Federal highway 
system, and recognize the devastation it caused to our cities. 
I think everyone who knows the way that we walled off certain 
communities that we wanted to separate, the way we destroyed 
other communities completely.
    There's got to be a recognition that we really need to 
study the problems, because if you look at what happened in the 
way of road construction before NEPA, we've got lots of 
examples of it in a lot of our urban cities where roads 
destroyed communities which have still never recovered.
    Ms. McMorris. I am not for a moment suggesting that we go 
back to before NEPA. I am only asking if there is a better way 
that we can, as we move forward, look at the environmental 
impacts.
    Just continuing with this example, what about those 
examples when there may be numerous cases and action taken 
against a particular project, and there's the examples when you 
might lose time after time after time, and in that meantime we 
have traffic congestion, we have air pollution, and what about 
that impact on the environment?
    Mr. Besa. Well, you are asking a very complicated question 
here, and I think it goes well beyond the bounds of NEPA. I 
mean, we've got a situation in this country where suburban 
sprawl, as you mentioned, and it has been a concern of the 
Sierra Club, is a real problem for folks.
    I would suspect that, if you talk with your constituents, 
they are oftentimes very concerned about development that is 
occurring somewhere where it hadn't before, and I don't know 
that NEPA really plays into that problem.
    What you are suggesting is that the delay in building a 
road may exacerbate pollution problems or congestion. I would 
suggest to you that what is being debated, really, is a public 
policy question--maybe again NEPA is what's involved here--
relative to whether a road gets built or whether we consider 
mass transit.
    Whether a road is actually in effect future land use 
policies because, as we say, if you build it, they will come, 
and in many instances a lot of road projects--no disrespect to 
the Congress--are looked upon as pork barrel projects that open 
up a lot of vacant land, a lot of farm land to development that 
doesn't serve the environment and doesn't serve those local 
economies very well.
    Ms. McMorris. Thank you. Mr. Spainhour, I wanted to talk a 
little bit more about the aggregate industry, and if you could 
just give me a sense as to the type of regulations that you 
deal with and where you feel NEPA may be duplicating efforts.
    Mr. Spainhour. OK. Most of our operations--and I will speak 
for Vulcan Materials Company. Most of our operations are 
heavily regulated at the state and local level. Most of the 
permits that we have to operate, that we have to have before we 
can construct our plants, before we can operate them, are 
usually state permits, depending on the state.
    California is the best example. California has a series of 
overlapping regulations at the regional level, State level and 
local level. The involvement with NEPA is really when we get 
into an action that's going to involve a Federal agency 
decision.
    One of the common examples would be if you have Federal 
lands that you are actually wanting to go onto and mine and 
recover the aggregates from. One of the anomalies of our 
industry--You know, aggregates are not available everywhere. 
You have to go to where the rock is. You have to go to where 
the sand and gravel is.
    The Gulf Coast is a good example of that. Vulcan has a 
number of operations in Mississippi, Louisiana, and Alabama, 
coastline operations that are essentially yards. We don't 
produce the rock there, but we ship it in from other locations 
and distribute it to the local marketplace to help in the 
construction activities; because the aggregate resources are--
at least for our company, are limited in that area.
    So you want to be able to develop the resources where the 
resources are located. Now when the resources happen to 
coincide with Forest Service land or other Federal lands, that 
is going to activate the NEPA process. If they happen to be in 
areas where you have other concerns like endangered species or 
wetlands, that is going to usually activate a Corps of 
Engineers or EPA or Fish and Wildlife Service decisionmaking 
process that could trigger NEPA.
    You know, Vulcan is very proud of our environmental 
efforts. So we want to protect endangered species. We want to 
protect wetlands. We want to do things the right way. So we 
want that process to work effectively to protect the 
environment, but where it really impacts us is where you have 
different directions and different positions and policies and 
ways that the actual requirements within the different agencies 
are implemented and enforced; and it creates uncertainty when a 
company like Vulcan goes into an area and we know we are going 
to activate Corps of Engineers permitting or we know we are 
going to be on Federal lands, understanding exactly how that 
area, that agency, is going to--what they are going to require, 
what we are going to have to put together as far as supporting 
information to support environment assessment or environmental 
impact statement.
    To a company like Vulcan, we want to have some assurance 
that we understand that process, we are going to be able to 
work within that process to accomplish a common goal of 
protecting the environment, as well as developing the necessary 
resource. That is where a lot of the problems come in.
    There are differences in approaches within different 
agencies, different areas, and you run the risk of sometimes 
having specific agendas within given agencies that can affect 
your process also. We have had some processes where we have 
been involved in that go multiple years, that we have to go 
through multiple alternatives' analysis.
    We tried to design our projects in a way--The West Coast is 
the best example. We like to design our projects in a way that 
minimize the impacts to the environment and are designed in a 
way that we can effectively work through the process. But when 
there's uncertainty out there, sometimes we are not able to do 
that.
    Ms. McMorris. OK. Thank you. Ms. Drake?
    Ms. Drake. Just to wrap up--Thank you, Chairwoman--Mr. 
Besa, I think where Chairwoman McMorris was going when she 
asked you about the impact of not doing a project--Maybe since 
NEPA, part of NEPA, is alternatives. You know, what are other 
sites? Maybe one of the things we should look at is that: What 
is the impact of doing nothing?
    I can tell you, the biggest concern in Virginia right now 
that for all of us here across the State is transportation, and 
I think it is a frightening thing to think we wouldn't have the 
highways we have today if they weren't built a long time ago. 
Not that that means we want to do them in any way other than 
the most environmentally friendly, but I can't imagine Virginia 
without the roads that we currently have today. But don't you 
think that could be a suggestion that comes out of this 
commission, is to look at what happens if you do nothing?
    Mr. Besa. Well, actually, there is a ``No Go'' alternative. 
So there is a review of what happens in the event of doing 
nothing. It's called the ``No Go'' alternative.
    I think that we have to consider transportation and energy 
policy together here, because, obviously, the serious problems 
we are having here now associated with energy demand relates 
directly to our transportation policy in part, and recognizing 
our increased dependence on oil and foreign oil is a result of 
a transportation policy that spreads this out further and 
further and further.
    Now I think that, if we are going to get serious about 
energy and serious about transportation, then we need to 
basically start to be better planners, because when we just 
decide that we can run a road here or run a road there and not 
really worry about the consequences in terms of not only 
transportation but in terms of energy demand, particularly 
today when we see--These gentlemen who are involved in energy 
know about the concept of peak oil.
    Really, they aren't making any new oil, and in 10 years or 
15 years, I suspect that we are going to be on the downward 
side, and that means that, obviously, we are going to have to 
really look at the way we move ourselves around. So, 
consequently, I--I may not have answered your question 
directly, but I did my best.
    Ms. Drake. Well, would it surprise you that the Canadian 
government believes that North America can meet her energy 
needs in North America, the North American continent, with 
Mexico, Canada and the U.S. working together with resources 
that we currently have?
    What you just said--You kept talking about relying on 
foreign oil, but the information we have is there are a lot of 
resources within this continent.
    Mr. Besa. Well, there certainly are, and those all involve 
significantly increased costs in terms of money. So you are 
going to raise the price if you are starting to go into coal 
bed methane, for example, or other forms of production. So it 
is going to raise the price, because those are hard to get at.
    Then you've also got the environmental impacts of these, 
because in many instances it's very little oil spread over a 
large area, and it involve extraction of tremendous tons of 
minerals or whatever to get at the oil. Then, of course, we 
haven't discussed the issue of global warming which, in light 
of the debate that seems to be clearly indicating that is a 
problem, that we need to think and, I'm sure, rethink our use 
of fossil fuels.
    Ms. Drake. I just have one last comment, and that is in 
other hearings we have heard from people, one woman in 
particular, how the company that she is with has been trying 
for 20 years to open a mine in Arizona. At the same time, her 
company went to Chile, opened a mine in three years.
    So when we start talking about offshoring of jobs--and I 
see Mr. Holloway shaking his head, because as a union 
representative, he understands that's probably the biggest 
reason we lose jobs rather than cheap labor, like people like 
to say. But I would like to know from Mr. Shafer or Mr. 
Spainhour, could you give us an average amount of time it takes 
you to get through the process, just to know that average 
amount of time? And that woman who was at 20 years had not even 
been to court yet in any cases, but she was up and running in 
Chile in three years, and that predictability, I think, is huge 
for our business community. Mr. Shafer, and then I'm done. I'm 
sorry.
    Mr. Shafer. I had spoken a little earlier about the 
planning process. My experience gives me these numbers I am 
going to give you, which would be an average, which would be 
what I would consider a major project, major large diameter, 
high pressure, natural gas transmission pipeline, not projects 
like the Alaska gas which we need desperately from the North 
Slope and that kind of thing. But a year and a half to two 
years in the planning process, and then about 18 months to work 
through that process, if you use the pre-NEPA filing, 
collaborative approach, kind of the quasi-team permitting 
approach.
    Then if you have no legal actions to work through, it would 
take you at least a couple of years to build it. So you are 
talking about five, six years.
    Ms. Drake. OK. Mr. Spainhour?
    Mr. Spainhour. On the aggregate facility side, it varies 
tremendously based on what part of the country you are in. 
California is probably our worst case scenario as far as 
timing. In California the planning process really has to start 
several years before you plan on beginning operation.
    Part of that, as I mentioned, is the definition of the 
project, the design of the project. A lot of work goes into not 
just determining where your resource is, but also laying out 
how your facility will be designed, how it will be operated 
throughout its life cycle, and understanding how the property 
will be used at the end. So you convert it into a usable 
resource, whether that is commercial development sites or 
recreational development, whatever it may be.
    So that process takes you a while to work through. Then 
when you get involved with the regulatory agencies in siting, 
it is a multi-year process. Now our folks have told me when you 
add NEPA on top of that, you are adding probably another year 
to 18 months to two years on top of the existing process out 
there.
    The biggest burden that we have as far as timing outside of 
California will be based on local issues, really, based on the 
supportive of the community and the amount of concern the 
community expresses about the location of the mine site.
    You know, we try to work in a way that we are viewed as 
good citizens of the community, but folks aren't always happy 
to have the mine site or sand and gravel operation next-door. 
So we have to work through those issues and make our way 
through that.
    Ms. Drake. Thank you very much. I yield back.
    Ms. McMorris. OK. You know, one of what I perceive to be 
the challenges of NEPA is that, when you look at the law, 
nearly every word of NEPA has been litigated. You know, what is 
the definition of significant? What is the definition of 
impact? You know, just on and on.
    Instead of clarifying through the years, it has only making 
it more--In my opinion, it is more tangled, because every year 
there's hundreds and hundreds of cases pending across this 
country that are further clarifying and defining and making it 
more and more cumbersome.
    The question is, Mr. Spainhour, if you would just answer 
the question as to what types of criteria are used to define 
major Federal action?
    Mr. Spainhour. Well, my understanding, it really depends on 
the agency you are dealing with. You know, I can--Probably the 
best examples I can give are projects that we have been 
involved in. In cases where we have planned on developing a 
mine site or extracting reserves from Federal property like 
Forest Service property, for example, that is usually going to 
be viewed as a Federal action.
    Activities with dredge and fill permitting, those type of 
activities--that's usually going to be viewed as Federal 
action. We are involved with a project right now where we are 
developing a rail line, and it is under Surface Transportation 
Board. So we are going through the environmental impact process 
right now assessing that.
    That's the best--I can only really give you examples I have 
experience with. So those are the kind of examples we deal 
with.
    Ms. McMorris. OK. Very good. At this time, I think we have 
completed the questions, unless you have any other questions.
    I again just want to thank each of you for being here. We 
value your input, and we may have some further questions for 
you. We would submit those to you in writing and ask you to 
respond also in writing.
    I understand that everyone has busy schedules. We do have 
the website up and going, and continue to ask folks to submit 
their comments to us. This has been a process of listening to a 
whole host of people all across this country as to how they 
interact with NEPA, and today we have heard from people 
representing three different states, and it is all helpful.
    I would also like just again to thank my colleague, Thelma 
Drake, for inviting us to be here today. It has been great to 
be here, and if you have anything else you would like to say, I 
will give you that opportunity.
    Ms. Drake. Well, Congresswoman McMorris, I would like to 
thank you for coming. She did drive down from Washington. So 
she got to see how beautiful our area is as you enter through 
the Hampton Roads Bridge-Tunnel. So she will go back to 
Washington and talk about what a beautiful area that we have.
    I would like to thank Dr. Runte and Old Dominion again for 
allowing us to be here. I would like to thank all of you for 
taking your time and for working with us as we continue to work 
through this process.
    I don't think there is anyone in the room that doesn't 
support the intent of NEPA No one would want to limit public 
input. We all believe that more interaction with agencies is 
better and that Federal agencies should be able to weigh in on 
projects, and we do think we should look at alternatives to 
projects.
    So we truly support NEPA. We just feel, after 35 years, 
that we should be looking at what is reality. We are hearing 
from people, there's way too much documentation. We are hearing 
from other people there really isn't any. So we are sort of 
back and forth, and we are really trying to find that balance 
of how do we protect our environment and meet our needs as a 
great nation as well. So thank you for your part in that.
    Ms. McMorris. Thank you. With that, the meeting is 
adjourned.
    [Whereupon, at 2:54 p.m., the Task Force adjourned.]
    [NOTE: Information submitted for the record has been 
retained in the Committee's official files.]

                                 
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