[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]
RESPONSIBLY AND PROFESSIONALLY
INVIGORATING DEVELOPMENT
(RAPID) ACT OF 2012
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON COURTS, COMMERCIAL
AND ADMINISTRATIVE LAW
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TWELFTH CONGRESS
SECOND SESSION
ON
H.R. 4377
__________
APRIL 25, 2012
__________
Serial No. 112-99
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
_____
U.S. GOVERNMENT PRINTING OFFICE
73-964 PDF WASHINGTON : 2012
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COMMITTEE ON THE JUDICIARY
LAMAR SMITH, Texas, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin HOWARD L. BERMAN, California
HOWARD COBLE, North Carolina JERROLD NADLER, New York
ELTON GALLEGLY, California ROBERT C. ``BOBBY'' SCOTT,
BOB GOODLATTE, Virginia Virginia
DANIEL E. LUNGREN, California MELVIN L. WATT, North Carolina
STEVE CHABOT, Ohio ZOE LOFGREN, California
DARRELL E. ISSA, California SHEILA JACKSON LEE, Texas
MIKE PENCE, Indiana MAXINE WATERS, California
J. RANDY FORBES, Virginia STEVE COHEN, Tennessee
STEVE KING, Iowa HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona Georgia
LOUIE GOHMERT, Texas PEDRO R. PIERLUISI, Puerto Rico
JIM JORDAN, Ohio MIKE QUIGLEY, Illinois
TED POE, Texas JUDY CHU, California
JASON CHAFFETZ, Utah TED DEUTCH, Florida
TIM GRIFFIN, Arkansas LINDA T. SANCHEZ, California
TOM MARINO, Pennsylvania JARED POLIS, Colorado
TREY GOWDY, South Carolina
DENNIS ROSS, Florida
SANDY ADAMS, Florida
BEN QUAYLE, Arizona
MARK AMODEI, Nevada
Richard Hertling, Staff Director and Chief Counsel
Perry Apelbaum, Minority Staff Director and Chief Counsel
------
Subcommittee on Courts, Commercial and Administrative Law
HOWARD COBLE, North Carolina, Chairman
TREY GOWDY, South Carolina, Vice-Chairman
ELTON GALLEGLY, California STEVE COHEN, Tennessee
TRENT FRANKS, Arizona HENRY C. ``HANK'' JOHNSON, Jr.,
DENNIS ROSS, Florida Georgia
BEN QUAYLE, Arizona MELVIN L. WATT, North Carolina
JARED POLIS, Colorado
Daniel Flores, Chief Counsel
James Park, Minority Counsel
C O N T E N T S
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APRIL 25, 2012
Page
THE BILL
H.R. 4377, the ``Responsibly And Professionally Invigorating
Development (RAPID) Act of 2012''.............................. 4
OPENING STATEMENTS
The Honorable Dennis Ross, a Representative in Congress from the
State of Florida, and acting Chairman, Subcommittee on Courts,
Commercial and Administrative Law.............................. 1
The Honorable Steve Cohen, a Representative in Congress from the
State of Tennessee, and Ranking Member, Subcommittee on Courts,
Commercial and Administrative Law.............................. 37
WITNESSES
William L. Kovacs, Senior Vice President, Environment, Technology
and Regulatory Affairs, U.S. Chamber of Commerce
Oral Testimony................................................. 38
Prepared Statement............................................. 41
Gus Bauman, Esq., Beveridge & Diamond, P.C.
Oral Testimony................................................. 61
Prepared Statement............................................. 63
Thomas Margro, CEO, Transportation Corridor Agencies
Oral Testimony................................................. 67
Prepared Statement............................................. 69
Dinah Bear, Esq., former General Counsel, Council on
Environmental Quality
Oral Testimony................................................. 77
Prepared Statement............................................. 79
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Material submitted by the Honorable Steve Cohen, a Representative
in Congress from the State of Tennessee, and Ranking Member,
Subcommittee on Courts, Commercial and Administrative Law...... 96
APPENDIX
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Steve Cohen, a Representative
in Congress from the State of Tennessee, and Ranking Member,
Subcommittee on Courts, Commercial and Administrative Law...... 103
Prepared Statement of the Honorable John Conyers, Jr., a
Representative in Congress from the State of Michigan, and
Ranking Member, Committee on the Judiciary..................... 104
Attachment to the Prepared Statement of Thomas Margro, CEO,
Transportation Corridor Agencies............................... 106
Letter from Organizations Opposed to the Legislation............. 179
Response to Post-Hearing Questions from William L. Kovacs, Senior
Vice President, Environment, Technology and Regulatory Affairs,
U.S. Chamber of Commerce....................................... 182
Post-Hearing Questions submitted to Gus Bauman, Esq., Beveridge &
Diamond, P.C., and Related E-mail Correspondence............... 185
Response to Post-Hearing Questions from Dinah Bear, Esq., former
General Counsel, Council on Environmental Quality.............. 187
Response to Post-Hearing Questions from Thomas Margro, CEO,
Transportation Corridor Agencies............................... 197
RESPONSIBLY AND PROFESSIONALLY INVIGORATING DEVELOPMENT (RAPID) ACT OF
2012
----------
WEDNESDAY, APRIL 25, 2012
House of Representatives,
Subcommittee on Courts,
Commercial and Administrative Law,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to call, at 12:10 p.m., in
room 2141, Rayburn House Office Building, the Honorable Dennis
A. Ross (acting Chairman of the Subcommittee) presiding.
Present: Representatives Ross, Cohen, and Polis.
Staff Present: (Majority) Daniel Flores, Subcommittee Chief
Counsel; John Hilton, Counsel; Travis Norton, Counsel; Omar
Raschid, Professional Staff Member; Ashley Lewis, Clerk;
(Minority) James Park, Subcommittee Chief Counsel; Susan
Jensen-Lachmann, Counsel; and Rosalind Jackson, Professional
Staff Member.
Mr. Ross. Good afternoon. I now call the Subcommittee on
Courts, Commercial and Administrative Law to order. Just to
give you a quick preface, I am going to go into my opening
statement and introduce the panel. We are still waiting for one
more Member. So I appreciate your indulgence and respect your
schedules as well. Hopefully we will be ready for your
testimony very shortly.
With that, I will begin with my opening statement. Our
economic recovery has been weak, to say the least. The
unemployment rate hasn't been below 8 percent since January
2009, despite the President's assurance that it wouldn't rise
above 8 percent if Congress would pass the $787 billion
spending package. More than just losing a paycheck, millions of
Americans have lost the dignity that comes from earning a
living and supporting a family. No government benefit can
compensate a person for that. Americans are ready to go to
work.
More than any other question, what I consistently hear from
my constituency is, ``Where are the jobs?'' The jobs are here,
as our witnesses today will explain. A study of proposed
projects in just one sector of the economy--the energy sector--
found that if a modest number of these projects were allowed to
go forward and break ground, the direct and indirect economic
benefits would be tremendous: literally, hundreds of thousands
of jobs and billions of dollars annually.
Another of our witnesses describes the transportation
project in Orange County, California, that has been under
review for 15 years. If approved, it would create 13,600 jobs
in Orange County and another 3,800 statewide. Imagine, waiting
15 years to build a 16-mile highway in one of the most
congested traffic areas of the country. And that road is still
not built. If the workers are here and the jobs are here, then
what is keeping the American workers idle? An outdated,
burdensome Federal permitting process that has become more
focused on analysis and process for its own sake than on making
decisions in a reasonable period of time.
The National Environmental Policy Act of 1969 serves
important goals which should be preserved. Federal agencies
ought to know how their actions affect the environment and this
decision-making process should be transparent to the public.
But today's opaque, unpredictable, nearly interminable
environmental review process does not even remotely resemble
the commonsense one envisioned by the authors of NEPA. As often
happens with government, over the years the machinery has
slowed as more and more steps have been added to the process,
ad infinitum analysis with environmental reviews not uncommonly
taking up to a decade or more to complete; the records of
decision thousands of pages long, incomprehensible to anyone
but a specialist; agencies working at cross-purposes rather
than cooperatively; permit applications suddenly denied by an
agency that had participated seemingly in good faith in the
environmental review; lawsuits brought years later by ``not in
my backyard'' activist organizations that have been eagerly
waiting for an opportunity where an agency forgets to cross a T
or dot an I.
This paralysis costs job creators millions of dollars in
fees to hire consultants and lawyers. But the real losers are
the American workers who could be putting food on the table
while contributing to the country's economic progress.
It his most recent State of the Union speech President
Obama said, ``We don't have to choose between our environment
and our economy.'' I agree wholeheartedly. Far too often
Americans are given a false hope between all of one thing or of
another, with nothing in between. The key is balance. By
striking the right balance between conservation and development
we can preserve the environment for future generations and
ensure that those generations are also able to enjoy the
quality of life that we all too often seem to take for granted.
My bill, the RAPID Act of 2012, aims to restore the balance
between thorough analysis and timely decision-making in the
Federal permitting process. It does not put a thumb on the
scale or try to force agencies to approve more or fewer permit
applications. It simply says: Make a decision, approve or deny
the project. But either way, follow a rational basis and make a
decision in a reasonable, predictable period of time.
Job creators and workers alike deserve to know that a
decision will be made by a date certain. When a project appears
to be stuck in limbo, investors walk and jobs are lost. The
RAPID Act does not bring many or even any really new ideas to
the table. It simply makes the Federal environmental review and
permitting process work like we all know it should.
The RAPID Act is modeled on existing NEPA regulations and
guidance, including guidance from this Administration issued to
agency heads just last month, as well as recommendations for
the President's own Jobs Council and the permit streamlining
section of the transportation bill adopted by Congress in the
109th Congress. The Federal Highway Administration has found
that this legislation cut the time for conducting environmental
reviews on transportation projects nearly in half.
Americans are ready to go back to work. The RAPID Act will
give job creators the confidence to take projects off the
drawing board and onto the work site.
In closing, I want to thank my cosponsors, Chairman Smith,
Mr. Coble, and Mr. Peterson for their support. Thank you
especially to Mr. Coble for calling this hearing and giving me
the opportunity to chair it. And thanks to our witnesses for
attending and sharing their experience with us.
I now reserve the balance of my time. With that, I would
like to take a moment and introduce our panel of witnesses.
And also for the record I would note that when Mr. Cohen
arrives, I will give him 5 minutes for his opening statement as
well.
[The bill, H.R. 4377, follows:]
__________
Mr. Ross. Our first witness that we have today is William
Kovacs of the U.S. Chamber. Mr. Kovacs provides the overall
direction, strategy, and management for the Environment,
Technology, and Regulatory Affairs Division at the U.S. Chamber
of Commerce. Since he joined the Chamber in March 1998, Mr.
Kovacs has transformed a small division concentrated on a
handful of issues in committee meetings into one of the most
significant in the organization. His division initiates and
leads multidimensional national issue campaigns on energy
legislation, complex environmental rulemakings,
telecommunications reform, emerging technologies, and applying
sound science to the Federal regulatory process. Mr. Kovacs
previously served as chief counsel and staff director for the
House Subcommittee on transportation and commerce. He earned
his J.D. from the Ohio State University College of Law and a
bachelor of science degree from the University of Scranton,
magna cum laude. Welcome, Mr. Kovacs. We thank you for being
here.
Gus Bauman. Mr. Bauman is an attorney at the law firm of
Beveridge & Diamond where he focuses on land use and
environmental issues, advising clients on such matters as
comprehensive planning, project development, and natural
resource regulation. He has been deeply involved in the Supreme
Court lands use and wetland cases since 1980. In 2006 and 2007,
Mr. Bauman chaired the joint development task force to reform
the development of the region's Metrorail stations. His
writings have been cited by the Supreme Court in several cases
and his leadership in the field including numerous articles and
conferences on land use, housing, growth management, and
environmental issues has gained him a national reputation in
land use law and policy. He is a highly rated faculty member of
the Annual Land Use Institute for the American Law Institute,
American Bar Association. Mr. Bauman earned a B.A. from Clark
University and a J.D. from Washington University. Mr. Bauman,
thank you for joining us today.
Mr. Thomas Margro joined the Transportation Corridor
Agencies in Irvine, California, as CEO in July 2007. Mr. Margro
has a bachelor of science degree in electrical engineering from
Syracuse University and a master of science degree in
electrical engineering, systems engineering and operations
research from the University of Pennsylvania. Prior to being
selected to head Orange County's 67-mile toll road system, Mr.
Margro was the general manager for the Bay Area Rapid Transit
district, or BART, in Oakland. He began his career at BART in
1990 as assistant general manager for development. Prior to
joining BART, he held the positions of Assistant General
Manager and chief engineer of the Southeastern Pennsylvania
Transportation Authority in Philadelphia. He also served as an
engineer and director of maintenance and engineering services
for the New Jersey Turnpike Authority. We look forward to
hearing from you, Mr. Margro.
Are you a Phillies fan or an A's fan?
Mr. Margro. Phillies fan all the way.
Mr. Ross. Thank you. Our fourth witness is Dinah Bear,
former general counsel on environmental quality. Dinah Bear is
an attorney based in Washington, D.C. She served for 25 years
as general counsel to the Council on Environmental Quality,
which is the environmental agency in the Executive Office of
the President. Ms. Bear has chaired the American Bar
Association standing committee on environmental law and the
District of Columbia Bar Association section on environment and
natural resources. She has received the distinguished service
award from the Sierra Club and an award for distinguished
achievement in environmental law and policy form the American
Bar Association. She currently serves on the boards of
Defenders of Wildlife, the Mount Graham Coalition, and Humane
Borders. Ms. Bear has a bachelor's of journalism from the
University of Missouri and a J.D. from the McGeorge School of
Law. Thank you for your testimony today, Ms. Bear.
And with that, I think we are still going to wait for one
more Member. Thank you.
[Recess.]
Mr. Ross. I will call the Subcommittee back to order and
recognize the distinguished gentleman from Tennessee, the
Ranking Member of the Subcommittee, Mr. Cohen, for an opening.
Mr. Cohen. Thank you, Mr. Chairman. And I apologize for
holding things up. There was a memorial service for the late
and great Donald Payne, a gentleman who cared about helping
people all over the globe. It was important I think that we
attend.
H.R. 4377, the ``Responsibly And Professionally
Invigorating Development Act of 2012,'' better known--or I hope
for it to be better known as RAPID--creates a new subchapter of
the Administrative Procedure Act to prescribe how the
environmental reviews required by the National Environmental
Policy Act, or NEPA, should be conducted for Federal
construction projects. The bill also imposes deadlines for the
granting of permits once the NEPA review process is completed.
NEPA was signed into law by President Nixon. It went into
effect on January 1, 1970. Among other things, NEPA requires
that for proposals for legislation and other Federal actions
significantly affecting the quality of the human environment,
Federal agencies must prepare a detailed environmental review.
NEPA also created the Council on Environmental Quality which
issues regulations and guidance implementing NEPA. While NEPA
itself is a short law, its regulations, which are 40 years of
case law, that they define the details of how environmental
reviews required by NEPA are carried out. H.R. 4377 appears to
codify some of what is already in there in terms of how NEPA
reviews are conducted. In other ways, however, this law appears
to be a significant departure from current practice.
I look forward to our witnesses discussing the subjects and
merits of H.R. 4377. As the Ranking Member of the Subcommittee
with jurisdiction over the APA, however, I do think it is
important to raise one concern at the outset: It is unclear to
me why all changes to our codifications of NEPA practice
contemplated in this RAPID bill belong in the APA. If RAPID's
proponents would like to amend or add to NEPA's environmental
review requirements, they should simply go ahead and amend
NEPA. I am very weary of using the APA as a backdoor way of
amending other statutes or substance of law. And as I have said
many times before, the APA is administrative constitution. And
like the actual Constitution, we should be very careful in
tinkering with it.
I am concerned H.R. 4377 as drafted opens the door to
amending other statutes or substance of law by simply adding
subchapters to the APA. This is not the purpose or function of
the APA, and we ought to guard against that temptation. I look
forward to your comments.
I thank our witnesses for being here today. And in
particular, I would like to acknowledge Gus Bauman, a lifelong
friend, an accomplished lawyer since the days we knew each
other as elementary school mates at Idlewild, a great school in
Memphis Tennessee, and an expert on this subject who has done
much law practice in this area.
I would also like to acknowledge Dinah Bear who served for
a quarter century as the general counsel for the Council on
Environmental Quality and, therefore, knows NEPA and its
associated regulations, case law, and guidance probably as
well, if not better, than anybody else. So I thank you for
appearing also. I welcome all of our witnesses and look forward
to the testimony.
Mr. Ross. Thank you, Mr. Cohen.
I now recognize Mr. Kovacs for opening testimony. Just for
the record, please note that your written testimony has been
submitted. And in the interest of time we would request that
your opening statements be limited to 5 minutes. But we will be
pretty lenient on that.
Mr. Kovacs, you are recognized for 5 minutes.
TESTIMONY OF WILLIAM L. KOVACS, SENIOR VICE PRESIDENT,
ENVIRONMENT, TECHNOLOGY AND REGULATORY AFFAIRS, U.S. CHAMBER OF
COMMERCE
Mr. Kovacs. Thank you, Chairman Ross and Ranking Member
Cohen. It is a pleasure to talk about the RAPID Act. It
addresses the administrative backlogs that have been happening
with environmental reviews through three commonsense ways.
One is it requires the lead agency to actively manage the
process so that we complete the environmental reviews in
specified time frames. It mandates concurrent rather than
sequential reviews, and it conforms the statute of limitation
for bringing lawsuits under NEPA to the general Administrative
Procedure Act criteria which is 6 months, rather than general
statute of limitations under Federal law which is 6 years,
which is one of the reasons the projects expand and go out so
long. These very simple procedural changes will help our
country create millions of jobs and get rid of excessive delay.
Several years ago, the Chamber--when we were talking to our
members and listening to the projects, we did a literature
search to see if there was a study on how many projects were
actually being stopped or delayed and for how long. And there
is very little information. So we undertook a study called
Project No Project, and we focused on electric generating
facilities because it was easier to find the data that we
needed. And we found as of March 2010, there were 351 electric
generating and transmission projects around the country that
were seeking permits but could not secure the permits. Most
surprising, especially at the time when we were trying to
create more green energy, was that 140 of the 351 projects were
renewable projects, and only 111 were coal-fired power plants.
So what we did is, we cataloged all the projects, put the
projects on our Web site. And we did several things. One is, we
tried to do an analysis of how these projects got stuck. And
what we found is that the opponents of the projects brought a
series of administrative and legal challenges against the
projects which stretch out the projects through both sequential
challenges as well as long statute of limitations. And in those
instances, the projects either lost financing or the project
sponsor abandoned the project.
After cataloging the projects, we wanted to determine what
was the economic impact of these 351 projects. We were able to
do a study following traditional Department of Commerce
methodology to find that if these projects had been built,
there would have been direct investment in the 2010 time frame
of $576 billion in direct investment; that trickle-down effect
or the multiplier effect would have been a $1.1 trillion boost
to the economy and it would have created 1.9 million jobs
through the 7 years of construction.
So why does RAPID really take the initiative and streamline
these projects in a way in which we think would be very
successful? First of all, it adopts the proven environmental
streamlining structure that the Congress has already adopted
through SAFETEA-LU which was overwhelmingly approved by the
Congress. And the studies out of the Department of
Transportation show that the time for a NEPA review, based on
the SAFETEA-LU factor, has been cut in half. It has been cut
from 72 months to 36 months.
Second, it tracks really the Administration's efforts on
March 4, 2012, in their guidance document. But there is one big
difference. The Administration is working very hard to try to
get its hands around the permitting business too, and they have
done several things, several Executive orders, a Presidential
memorandum. But all of this as guidance puts us in a position
in which it is not mandatory and it is not followed by the
agencies. By the fact that your bill would actually put hard
deadlines on, you begin to actually move the process forward so
the agencies have to cooperate. It follows the recommendations
of President Obama's Council on Jobs and Competitiveness, which
he issued both in its interim report and its final report very
strong recommendations for permit streamlining.
And finally and I think most importantly, it implements the
original congressional intent. For this hearing, we did a very
close examination of what happened in 1969. And one of the
things you are going to find is the entire purpose of NEPA was
not to have long delays. And in fact, when Congress was
debating the issue, they were talking about time frames like 90
days.
In 1981 CEQ thought that it could all be done in a year.
Well today, with the latest study, the DeWitt study, they find
that the average NEPA goes somewhere from a few months to 18
years, and it is increasing at the rate of about 37 days per
year. And that is really the part of the process that we are
trying to go after. So RAPID is a commonsense, proven solution
that has actually been used in several other ways.
And since I have 20 seconds, similar permit streamlining
was also used in the Stimulus Act, with the Boxer-Barrasso
amendment. And out of the 194,000 projects that went through
the stimulus project, over 184,000 of them went through the
permit streamlining process. So it is a very important bill.
Thank you very much for being able to testify.
Mr. Ross. Thank you Mr. Kovacs. And your timing was
impeccable on that.
[The prepared statement of Mr. Kovacs follows:]
__________
Mr. Ross. Mr. Bauman, you are now recognized for 5 minutes
for an opening.
TESTIMONY OF GUS BAUMAN, ESQ.,
BEVERIDGE & DIAMOND, P.C.
Mr. Bauman. Thank you Mr. Ross and Mr. Cohen, especially.
The remarks that I offer today reflect my personal views
and are not being made on behalf of and are not intended to
reflect the views of Beveridge & Diamond or any other entity.
The National Environmental Policy Act, NEPA, has been with
us for 42 years. The Administrative Procedure Act, APA, has
been with us for 66 years. NEPA is a procedural statute that
requires Federal agencies to pause and take a hard look at the
environmental consequences of their proposed actions. APA is a
procedural statute that regulates the manner and process of
Federal agencies in their rulemaking and decision-making. While
both NEPA and APA are largely procedural in nature, their day-
to-day workings have profound impacts not only on the Nation,
but also on the rights of citizens as well as the authority of
States and localities to perform their governmental functions.
The problem at hand is the increasingly undue length of
time it takes to conduct a NEPA review of a proposed project,
be it public or private, that relies on Federal funds or
approval of some kind.
A 1994 GAO report found that NEPA review of a highway
project, for example, took an average 4.4 years to complete. If
an Army Corps section 404 permit was involved because of the
presence of waters of the United States, then NEPA review took
an average 5.6 years to complete. Since that GAO report,
nothing has gotten any simpler. Indeed, a 2005 study of NEPA
reviews of Oregon highway projects presented to the
Transportation Research Board of the National Academy of
Sciences by Dr. J. Dill of Portland State University, found it
took an average 6.1 years to complete. Of course litigation, or
just its threat, stretches the process much further,
exacerbating the costs of delay for needed projects.
According to the 2007 CRS Report for Congress, called
Streamlining NEPA, in 2004, 170 NEPA cases were filed in court
to stop a project. Just 6 percent of them resulted in an
injunction. I am firmly convinced from professional experience,
having worked in and out of government, that the Congress and
President of 1969 never intended that an environmental impact
statement process--a statement, mind you--the more expansive
terms ``report'' or ``study'' were not even used--would devolve
over time into a multiyear incredibly arcane thicket of rules,
huge reports, and constant court fights in which any project of
importance to the Nation or a State that has some kind of
Federal hook attached would likely be delayed.
Key elements of this RAPID bill would restore to NEPA a
more rational and manageable process without undercutting the
law's environmental review elements. Under the bill, the
agencies participating in the review of a proposed construction
project would have to work concurrently rather than, as is
often the case, consecutively. They would have to follow an
agreed-upon schedule with deadlines. If an agency chooses to
file comments late in the agreed-upon schedule when the
decisions have been assessed, then reached and relied upon, the
lead agency shall not regard such late commentary.
Additionally, an environmental impact statement shall be done
within 2 years; an environmental assessment within 1 year.
Extensions of time are allowed for good cause.
These basic reforms, taken together, would force all the
agencies to hear each other out from the get-go, would deter an
agency from holding back its views until late in the process,
and would enforce a rigor of review and comment where too often
little exists today.
The streamlining bill also introduces the helpful concept
that agencies put forward issues of concern as early as
practicable so that they may be assessed and resolved; and once
resolved, not reopened. And where resolution is not achieved,
the lead agency shall notify the heads of the participating
agencies as well as the Council on Environmental Quality. In
that way, when reviews get bogged down and inordinately
stretched out by lower-level agency people who sometimes refuse
to see the forest for the trees, elevation of an issue can
bring needed national or State perspective to the table. And
requiring an annual report to the Congress on the workings of
NEPA, including the status of litigation, is an excellent way
to keep our elected representatives on top of the NEPA process.
Finally, the streamlining bill takes the 180-day statute of
limitations established in the Transportation Act of 2005,
called SAFETEA-LU, and extends it to all NEPA claims seeking
judicial review of an approved construction project. Now this
makes eminent sense. No project sponsor, having endured the
entire NEPA process with all that that entails, given the
myriad statutory and regulatory requirements culminating in the
final agency action, should have to wonder beyond 6 months of
time if someone might appeal the project decision to court.
Thank you.
Mr. Ross. Thank you Mr. Bauman.
[The statement Mr. Bauman follows:]
__________
Mr. Ross. Mr. Margro, you are now recognized for 5 minutes.
TESTIMONY OF THOMAS MARGRO, CEO,
TRANSPORTATION CORRIDOR AGENCIES
Mr. Margro. Thank you, Mr. Chairman and Congressman Cohen.
My name is Tom Margro. I am the chief executive officer of the
Transportation Corridor Agencies. We are two joint powers
authorities formed by the California Legislature to plan,
finance, construct and operate toll roads in Orange County,
California.
Thank you for the opportunity to speak before you today to
discuss our agency's ongoing challenges over more than 15 years
to secure the Federal approvals needed to complete the 241 toll
road. Not only is this project critical to alleviating
congestion in Orange County, but it will create over 17,000
jobs and requires no Federal, State, or local funding.
TCA recently retained the firm of Beacon Economics to do an
economic benefits analysis of our project for the purposes of
highlighting the importance of the project to the region and
the State. The report found that designing and building this
$1.7 billion project will create more than 13,600 jobs in
Orange County alone, and an additional 3,800 jobs statewide. It
will also generate more than $3 billion in economic output in
California and create almost $160 million annually in local and
State tax revenues. The recession has severely impacted our
local economy. And the Orange County and L.A. Building and
Construction Trades Council is reporting unemployment rates of
40 to 65 percent for their members.
I commend Congressman Ross for introducing H.R. 4377 and
the Subcommittee for holding this hearing. I have reviewed the
bill, and I believe it makes important reforms that will allow
critical projects like ours to move forward expeditiously
without compromising environmental protections and the public
input.
The TCA completed the first 51 miles of our planned 67-mile
toll road system in 12 years. However, the last 16 miles has
been mired in the Federal environmental review and permitting
process for over 15 years. The project was intended to be a
model for improving the complex Federal environmental process
by integrating reviews under the NEPA Act, the Clean Water Act,
the Endangered Species Act, and other Federal environmental
laws.
The review process was undertaken through the formation of
a voluntary collaborative of State and Federal agencies,
working through a memorandum of understanding among the Federal
Highway Administration, the EPA, the Army Corps of Engineers,
and the U.S. Fish & Wildlife Service, with Federal highways
being the lead agency. Key provisions of this MOU were the
commitment by all agencies to reach consensus at key decision
points and included language precluding agencies from
revisiting their concurrence, except in very limited
circumstances.
This process actually involved two stages. In the first
stage, the collaborative developed the Purpose and Need
Statement and identified 24 alternatives for initial
evaluation. This took 4 years. The second stage took 6 years,
during which technical studies were performed, and these
alternatives were refined, developed, and evaluated to arrive
at the final 10 alternatives that would be carried forward in
full analysis in the environmental impact statement.
The last steps of stage two included the identification by
the collaborative of agencies of an environmentally preferred
alternative which is designated for corps purposes as the
preliminary LEDPA, or least environmentally damaging
practicable alternative.
Having been part of the collaborative process, the U.S.
Fish & Wildlife Service could now complete their evaluation
within the mandated 135 days. However, it still took an
additional 3 years to receive our biological opinion which,
fortunately, came out to be one of no jeopardy.
When the TCA applied for the consistency certification
under the Coastal Zone Management Act, project opponents
objected to the project and produced a study disputing the
previous 10 years of analysis by the collaborative. At this
point, both the EPA and Army Corps questioned the preferred
alternative that they had previously selected and asserted the
need for additional environmental studies and reopened the
debate concerning other alternatives.
Our experience with this voluntary collaborative
demonstrates that the Federal environmental process needs
fundamental reform. Despite over a decade of effort by these
agencies and the expenditure of over $20 million by the project
sponsor, ourselves, this voluntary collaborative process failed
as there was no agreement on a preferred alternative. The TCA
is committed to working with all stakeholders to complete the
project in an environmentally responsible manner while creating
new jobs. The current process, however, serves as a
disincentive for project opponents to work cooperatively with
project sponsors to address issues, since opponents can delay
or stop projects under the current process without any
repercussions.
Unfortunately, projects around the country have faced
similar delays because of this unwieldy process which allows an
endless and duplicative review of alternatives, with regulatory
agencies getting numerous bites at the apple. This results in
added costs and stops, or delays projects that would provide
much-needed economic benefits and congestion relief.
Based on our experience and frustration with the NEPA
review and permitting process for our project, we strongly
support the provisions in Congressman Ross' RAPID Act of 2012.
Thank you.
Mr. Ross. Thank you Mr. Margro.
[The prepared statement of Mr. Margro follows:]*
---------------------------------------------------------------------------
*See Appendix for the attachment submitted with this statement.
__________
Mr. Ross. Ms. Bear, you are recognized for 5 minutes. Thank
you.
STATEMENT DINAH BEAR, ESQ., FORMER GENERAL COUNSEL, COUNCIL ON
ENVIRONMENTAL QUALITY
Ms. Bear. Thank you very much, Mr. Chairman and Ranking
Member Cohen. My name is Dinah Bear. I have had 25 years of
experience serving at CEQ, helping to oversee the National
Environmental Policy Act. The purpose of NEPA is not to promote
or stop projects, but rather to provide information to the
decision maker and to involve the public in that process. There
are delays caused by the NEPA process, and I want to talk about
delays for a few minutes here, not very long.
There are some delays that are warranted. They are
consistent and add value to the purpose of NEPA because they
involve important issues that the public and the decision maker
need to understand. And in that regard, I would like to quote
from a transcript from the House Armed Services Committee,
April 28, 1992, from Admiral James Watkins when he was serving
as Secretary of Energy. When he came in as Secretary of Energy,
I can tell you from personal experience that he was not a fan
of NEPA. But after going through the process for a complicated
decision involving the production and construction of
facilities for tritium, he had this to say at this
congressional hearing in front of the House Armed Services
Committee, ``And looking back on it, thank God for NEPA,
because there were so many pressures to make a selection for a
technology that it might have been forced upon us, and that
would have been wrong for the country because as the stockpile
requirements come down in tritium, you change technologies,
perhaps. The old technologies, the heavy water reactor, the
modular high-temperature gas-cooled reactor, may not be the
best technologies for a quarter of the original goal of
tritium. And that is what it is all about,'' speaking of the
NEPA process.
There are delays that are caused by extraneous factors that
are not within the agency's control. There are also delays that
are caused by internal circumstances in the agencies. It is
true that, as Mr. Kovacs said in his written testimony, CEQ did
say in 1981 that many EISs could be produced within 12 months.
That statement was made in guidance issued in January 1981.
Later in that year, we saw two trends starting to develop that
really were at odds with each other. One very serious trend
that has had a very deleterious effect on agencies' ability to
comply with NEPA and other environmental laws in a timely
manner is a dramatic decrease in internal agency resources.
When I first started at CEQ in early 1981, there were
several agencies and departments that had well-staffed offices
for NEPA compliance, and those offices no longer exist today.
There are many situations where agencies are using staff that
are not well trained in NEPA. Many training elements of agency
programs have been eliminated over the years. And this is on a
bipartisan basis, I might add.
And as a result of the reduction in much of the staff doing
NEPA, a number of EISs--particularly EISs for large
construction projects--are done by consultants or contractors.
In my--and I mean absolutely no disrespect to contractors or
consultants. There are many, many fine consultants in the
field. But in my experience, the fastest EISs are done in-house
by agencies. I have seen EISs done in less than 12 months. But
every time I have seen that happen, it has been done by staff
within the agency. When you have a consultant involved, it just
adds an extra layer of time where the consultant has to get
approvals and consult with the agency and that inevitably takes
a longer time.
At the same time that agencies were getting this reduction
in staff, which hampered their ability to carry out NEPA and
shifting much of the NEPA compliance to consultants, CEQ and
many others involved in the NEPA process began promoting much
more heavily the integration of all other environmental
compliance laws within the NEPA framework. For a number of
reasons, that makes a lot of sense. But it also makes it harder
to meet shorter timelines and shorter page limits, for that
matter. Both of those trends have continued since 1981.
Let me take a minute or two and talk about concerns with
the bill. I have serious concerns about eliminating CEQ's
conflict-of-interest provisions for projects at the EIS level.
I think it is extremely bad policy. I have concerns with the
project default provisions in the bill, the approval default. I
have concerns with the omission of all involvement of county
governments and tribal governments in this bill. The bill does
not codify the recent CEQ guidance, as has been suggested. It
picks up many of the same themes in kind of bullet point, but
the details are quite different. SAFETEA-LU was written
specifically for highways, which has some very unique
constructs on how NEPA is done in the highway situation and
cannot easily be translated to many other agencies, including
independent regulatory agencies and agencies with an
administrative appeals process. And there are a number of
ambiguities in the bill that make it difficult to understand
how it would actually work.
I see my time is out. Thank you very much. I would be happy
to answer any questions.
Mr. Ross. Thank you Ms. Bear.
[The prepared statement of Ms. Bear follows:]
Prepared Statement of Dinah Bear, Esq., former General Counsel,
Council on Environmental Quality
__________
Mr. Ross. And I will now recognize myself for 5 minutes of
questions.
Ms. Bear are you suggesting then that the status quo is
okay?
Ms. Bear. No, I am not suggesting that the status quo is
okay. First of all, I think it is imperative to give agencies
adequate resources to actually comply with environmental laws.
Mr. Ross. And those are the same agencies that would issue
their EISs within 12 months?
Ms. Bear. Yes. And in fact, I think one thing that several
of the witnesses here, including myself, agree on is that
SAFETEA-LU has made some improvements in the process.
Mr. Ross. In fact you hit on something right there.
Process. I think what we are lacking ultimately now is any due
process for resolution of these permitting projects.
Ms. Bear. Right. But one of the innovations that has taken
place in the highway field--and I don't remember if it was Mr.
Kovacs or Mr. Bauman who talked about the reduction in time--
one of the innovations in the highway situation has been
provisions allowing the highway agencies to fund additional
staff for the resource agencies so that they can work on those
permits.
Mr. Ross. And wouldn't concurrent as opposed to sequential
review assist in that regard?
Ms. Bear. Yes.
Mr. Ross. And in fact, wouldn't sharing data also be
something that should be done? And it is not being done now?
Ms. Bear. Yes. Concurrent review and sharing data is
already part of the CEQ regulations. But you have to have
somebody at the desk and at the phone to do that. So sharing
the funding has helped the highway situation.
Mr. Ross. Mr. Bauman, it is interesting, as a lawyer, I
think that the process is real important. I guess my concern
here is that under the current structure that we have today,
there appears to be no process, no due process available to
someone seeking to have a project permitted at--I guess there
is no recourse other than if you want to stand on the sidelines
and 6 years later object and file suit. I mean, doesn't this
RAPID Act at least provide the procedural infrastructure that
is necessary in order to expedite the permitting process?
Mr. Bauman. Right. Well, what it does--and I was speaking
to the core of it, that so many people who have to deal with
this every day have always advocated is that it would require
everyone to stick to a schedule. Everyone knows what the
deadlines are. And then if someone is unhappy, then you go to
court. But then that is done within just a few years--not to
have many years go by before the person goes to court to
contest the final decision. It is that enormous time that goes
by now. Either way, you are going to go to court relatively
soon or much, much later. If it is much, much later, the delays
that then go on extend onward. That is the reality of what
happens.
Mr. Ross. And the ripple effect of that is that the
investment is not made, the jobs are not created.
Mr. Bauman. Right.
Mr. Ross. And if the developer or whomever it is that is
putting their capital at risk can't use this process, they will
go elsewhere.
Mr. Bauman. Well, the people who make a lot of money on
this process are the environmental consulting companies and the
lawyers.
Mr. Ross. Mr. Kovacs, you describe in your written
testimony how NEPA does not function as it was designed to
function when it was adopted in 1969. In your opinion what has
caused the environmental review process to get so far out of
hand? And how will the RAPID Act help get things back on track?
Mr. Kovacs. Well, when Congress passed NEPA in 1970 it was
a very straightforward statute that expected there to be a
review of the environmental issues and for those issues to be
balanced by the agencies and to take any mitigating action.
Congress in fact, even in the original NEPA, did not even have
a private cause of action and never anticipated any of this
litigation. And if you go back and you read what Scoop Jackson
or Ed Muskie were saying, they were talking about a process
where the agencies were not doing any environmental review, and
they needed to have that environmental review forced on them.
Congress did a wonderful job of doing that.
What seemed to happen after that is the courts took control
of the process, and then I believe it was Judge Skelly Wright
recognized for the first time that there was a private cause of
action because Congress actually did not delegate the absolute
discretion to the agencies. And from that point, it just
exploded. It was this little tiny ball with one lawsuit. And
now it is one of these issues where there is complete
uncertainty because you never know if you have examined enough
issues and enough alternatives to satisfy the courts. So what
happens is, because you don't know how to satisfy the courts
and you don't know what the next alternative is going to be,
you do study after study. And that is what brings the
uncertainty into the process.
Mr. Ross. The Project No Project report that you did that I
had a chance to review is nondiscriminatory. It addressed
energy projects that are not only carbon-based and contemporary
but also renewable green energy projects that could not pass
this permitting process and then would give it up. I mean, this
has an impact on everything that we want to do in terms of the
permitting process regardless of how good the idea is.
Mr. Kovacs. That is correct. We did not. We could have done
big box stores. We could have done cell towers. There were a
lot of things. They are all having the same problems. So it is
not just even energy facilities. We did not discriminate. And
in fact, as I mentioned, I think the biggest surprise we had is
that far more renewable projects were actually caught up in
this process. And if you just look at Cape Wind, for example,
they are now on I think their 11th year, and they have had the
Federal Government approve the permit several times and they
still can't get the permit through.
Mr. Ross. Amazing. Thank you. I see my time is up. I will
recognize the Ranking Member from Tennessee, Mr. Cohen for 5
minutes.
Mr. Cohen. Thank you, Mr. Ross. Ms. Bear, you seem to have
a lot of information and not enough time. Before I ask you just
a general question, you mentioned something about a conflict-
of-interest provision. Can you explain that to me and why you
think that is a problem?
Ms. Bear. Yes. Under the current CEQ regulations,
consultants or contractors hired to prepare environmental
impact statements have to sign a disclosure statement avowing
that they have no financial or other interest in the outcome of
the project. This is because these are the projects with the
most serious environmental impacts, and the feeling has always
been that the public and decision makers need to have that
information from a source that is both unbiased and has the
appearance of not being biased. H.R. 4377 allows the project
sponsor themselves--whether it is a private sponsor or a public
agency--to actually prepare the environmental impact statement.
Obviously a private sponsor has a financial interest in the
project.
Mr. Cohen. That would kind of be like having TransCanada do
the impact statement for the Keystone XL pipeline?
Ms. Bear. Precisely.
Mr. Cohen. Wow. That wouldn't be too unbiased, would it?
Ms. Bear. Not in my view.
Mr. Cohen. For the other three panelists, how do you
explain that? Is that not an inherent conflict? Mr. Bauman.
Mr. Bauman. Mr. Cohen, that provision is in there. I didn't
write the bill. It is in the bill. I didn't speak to that. To
me, it is completely unnecessary to the issue of inordinate
delay that we did speak to. That is a separate issue. I don't
disagree with the Congressman's question about it.
Mr. Cohen. Mr. Kovacs, do you think that is a good idea to
just eliminate the conflict of interest and let the project
folk hire their guns?
Mr. Kovacs. I think before we throw out the entire
provision, I think when you get to the conflict of interest--
first of all, there should be conflict-of-interest provisions.
I have no problems with that. But I think that the overall
writing provision that I think Ms. Bear is addressing is the
fact that a sponsor, for example, could actually either pay for
the EIS or actually make a voluntary contribution. There are
States like California that do that. I mean you can't keep
continuously talking about a lack of resources but then not
find some way in which to get the person responsible for it to
pay for it.
For example, in my very young days I was chairman of the
Virginia Hazardous Waste Siting Board, and the actual
applicants paid for the application itself for us to process,
so that there was some financial ability for the State to carry
on this kind of an argument.
So you have two things in the bill: One is, you have the
project sponsor to pay for it. But if you read further down,
there are provisions where the agency must exercise independent
judgment and it must evaluate it independently. Well, I would
suggest, Congressman, that virtually every agency from EPA down
uses outside sources of information when they are doing a rule.
The rule isn't that they can't do it or that they can't adopt
this by reference or take someone else's study. They have to
exercise independent judgment. So this just tracks that. And
the second thing is in terms of voluntary contributions; if you
are upset with the project sponsor doing it, then ask for a
voluntary contribution so that the agency can handle it and get
the proper staff.
Mr. Cohen. Does the voluntary contribution in itself raise
some issue about conflict? I mean, who pays--you work for the
Chamber.
Mr. Kovacs. That is correct.
Mr. Cohen. So you have got certain perspectives that are
the Chamber's perspectives. But if you worked for the Sierra
Club and they paid your salary, I am sure you would be just as
good an advocate. So it does make a difference on who pays.
Mr. Kovacs. I think the question is--and it seems to be the
legal standard. I will let the real practicing lawyers answer
that.
The standard is, is the agency exercising independent
judgment? And the courts review this all the time. If the
agency just adopts it without looking at it, the courts are
probably going to set it aside. But the question is independent
judgment and control; not necessarily is the process wrong.
Mr. Cohen. Ms. Bear, have you been won over by Mr. Kovacs'
arguments and now think this is a great idea?
Ms. Bear. No.
Mr. Cohen. Surprise, surprise.
Ms. Bear. I know you are shocked.
First of all, agencies--because of the constraint on agency
resources, it is already the case that many EISs are paid for
by the project applicants. For example, their processes are
generally referred to as the third-party process, where the
applicant pays for a consultant who is chosen by the lead
agency and who works under the direction of the lead agency as
opposed to the proponent. And in those situations, there is
usually either an MOU or a memorandum of agreement or a
memorandum of understanding setting out constraints between
communications between the applicant and the EIS consultant,
because the EIS consultant, even though the firm is being paid
for by the applicant, is actually working for the agency.
But there is one other thing I want to clarify here. While
the bill does have a provision where agencies could directly
accept a series apparently of voluntary contributions from the
applicant, it also specifically says, ``Upon the request of any
project sponsor to the lead agency, the project sponsor shall
be authorized to prepare the document.'' So they can both
prepare the document directly or they can offer these payments
directly to the agency, which most of the time, agencies cannot
do today--that is true.
There are prohibitions in appropriations laws and a variety
of other laws, including I believe some ethics constraints
about agencies taking money directly from the private sector.
Mr. Cohen. Thank you. Mr. Ross, I would like to ask
unanimous consent that a letter I have here from Ms. Nancy
Sutley, who is the chair of the Council on Environmental
Quality, be entered into the record.
Mr. Ross. Without objection, so ordered.
[The letter referred to follows:]
----------
Mr. Cohen. And I yield back the balance of my time. Or the
proverbial ``my time is out,'' and I yield back.
Mr. Ross. Thank you. The distinguished gentleman from
Colorado, Mr. Polis, is recognized for 5 minutes.
Mr. Polis. I thank the Chair. I appreciate the hearing on
this important topic. My constituents have certainly voiced to
me a frustration with an open-ended and often interminable NEPA
project for--whether it is transportation or infrastructure
projects or renewable energy projects that have strong support
on the ground.
And I was enheartened in part by the 2006 NEPA task force
and also by President Obama's Council on Competitiveness
recommendations around streamlining. And I think it is critical
to strike the right balance in this regard. So hopefully we can
find a way to accelerate an often interminable process.
I want to ask about some of the differences between the
2006 task force and this proposed bill. It is my understanding
that the task force recommended that there be a timeline;
namely, that the agencies have 18 months to complete EIS and 9
months to complete an EA. And I don't know what the right time
should or shouldn't be. But it is my understanding that the
mechanism in this bill is actually automatic approval if the
timeline isn't met, versus simply requiring that a certain
timeline is met.
Is there any problem with requiring under statute a certain
timeline that is met rather than holding a gun to the head and
saying it is automatically approved if it is not met? Is there
a distinction between those two? Or do you think it would be
consistent with meeting the needs of this legislation if we
simply require the agencies to meet a timeline without getting
into what the timeline is? I will address that to Mr. Bauman.
Mr. Bauman. I would take anything that Congress could do
just to say there shall be a schedule, there shall be
deadlines. You can set them out. You have done it in other
environmental statutes, like the Clean Air Act. So just doing
that, you would be shocked at how behavior would change and the
NEPA process, which goes on interminably and is used and abused
by many folks--Dinah is right. No one ever intended that NEPA
would turn into what it has become. The only way it is going to
reform itself is if you put in these basic reforms, then the
agencies will follow. So you don't need the automatic--it is
deemed approved, I think, to change the behavior of ``get the
process done.'' Thank you.
Mr. Polis. Reclaiming my time, the main issues that I have
had have been less around outcomes or changes; more around the
interminable timeline of approval. And again, a lack of
certainty around what that timeline is.
Mr. Bauman alluded to the history of NEPA. And I would like
to address this to Ms. Bear as well. As general counsel under
the Reagan administration, you had a lot of oversight over the
implementation of NEPA. I would like you to address how this
bill will impact the existing NEPA framework that has been in
place for 40 years, and also significant changes, and why are
we hearing more about this now, for instance, than we did in
prior incarnations?
Ms. Bear. Okay. A complete answer would be very lengthy. So
let me hit a few points and then I would be happy to submit
additional thoughts for the record.
First, just for a minute, I want to address the issue of
schedules, which is part of your question, although I realize
your question goes much further than that. But I want to note
that when CEQ issued the regulations that are binding on
Federal agencies for the NEPA process in 1979, the single most
requested provisions by industry representatives, including I
believe the Chamber, but many other industry business
representatives, was a provision to allow the proponent to ask
the agency to set a time schedule, and that the agency, upon
that request, would have to set a time schedule.
In 25 years being general counsel, deputy general counsel
at CEQ, no industry representative ever came to me and said,
``I asked an agency to set a time schedule and they didn't.''
Or ``I asked an agency to set a time schedule. They did, and
they are not complying with it.'' And in fact to the best of my
knowledge, the only person who has ever used that provision on
behalf of their clients is the attorney who was actually
responsible for writing the regulation.
Mr. Polis. Since we have limited time, is there any way
that we can make that exemption perhaps less cumbersome or
easier to use? Because perhaps one of the reasons it is so
rarely used is it is too difficult to use.
Ms. Bear. All they have to do is ask. I am not quite sure
what the difficulty is.
Mr. Polis. So it is fairly easy to ask for the timeline?
Ms. Bear. Yes. I think so.
Mr. Polis. Is it more a mater of educating those who are
applying that that should be something they ask for?
Ms. Bear Yes. And I have spoken about this in front of a
number of industry groups.
Mr. Polis. It would be a bit of a moral hazard there,
because as was alluded to, many of the attorneys involved with
the process might actually profit more from an ongoing delayed
process, versus the principals who would profit from a short
process.
Ms. Bear. Too many attorneys on this panel to----
Mr. Polis. Present company excepted, of course.
I would just ask for an additional minute to allow her to
finish her answer, if that is all right, Mr. Chair.
Mr. Ross. Without objection, please go ahead.
Ms. Bear. Okay. I don't believe you were here when I was
giving my 5-minute summary. But one of the difficulties that I
think is affecting the timing of the NEPA process or how long
it takes are agency resources. And I started CEQ in 1981. As I
mentioned, there were departments and agencies that had whole
offices devoted to complying with NEPA, with well-trained
staff. Many of those offices are no longer there.
The NEPA process, particularly for contractor--for project
proponent proposals coming from outside of the Federal
Government, many EISs are done by consultants for a number of
reasons. And this is not a slam at consultants. There are some
very good ones out there. But it tends to slow the process
down. The EISs I have seen that are done within a 12-month
period are done in-house by internal agency staff, but the
capabilities of agencies for doing that is vastly diminished.
So that is one very important area I think that needs to be
addressed.
I think schedules are good. I think dispute resolution
processes are good. I have no concerns about the dispute
resolution process, for example, in the SAFETEA-LU bill. I am
concerned that this bill, as you said, creates a scheme that
is--well, you didn't say this, but I will--a scheme that is
different in many fundamental ways from the CEQ regulations.
First of all, it carves out one segment of the NEPA process,
which is construction projects. NEPA applies to a lot of other
things. So you have automatically two different processes. But
within this process, in my view, some of the most serious
problems are, as was just discussed, eliminating the conflict-
of-interest provision, allowing private project proponents to
prepare environmental impact statements themselves, as well as
giving funding directly to agencies. The default----
Mr. Ross. Ms. Bear, I unfortunately have got to wrap it up
here. I apologize. And I don't mean to cut you off. We have a
fullCommittee hearing here in 5 minutes. And believe me, I
would love to explore more. I think this panel would too.
And Mr. Margro, I have got questions I would like to ask
you. Unfortunately, due to the fact that we have to be out of
this room in 5 minutes, we are going to have to adjourn our
hearing. But I do want to state for the record that all Members
will have 5 legislative days to submit to the Chair additional
written questions for the witnesses which we will forward and
ask the witnesses to respond as promptly as they can so that
their answers will be a part of the record.
Without objection, Members will also have 5 legislative
days to submit any additional materials for including in the
record.
I want to thank the witnesses for being here. I apologize
for the delay, but I think it was very good for us to have
this. I wish you all well. And this hearing is now adjourned.
[Whereupon, at 1:25 p.m., theCommittee was adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Steve Cohen, a Representative in
Congress from the State of Tennessee, and Ranking Member, Subcommittee
on Courts, Commercial and Administrative Law
H.R. 4377, the ``Responsibly and Professionally Invigorating
Development Act of 2012,'' or ``RAPID'' Act, creates a new subchapter
of the Administrative Procedure Act to prescribe how the environmental
reviews required by the National Environmental Policy Act, or ``NEPA,''
should be conducted for federal construction projects.
The bill also imposes deadlines for the granting of permits once
the NEPA review process is complete.
NEPA was signed into law by President Richard Nixon and went into
effect on January 1, 1970. Among other things, NEPA requires that ``for
proposals for legislation and other major Federal actions significantly
affecting the quality of the human environment,'' federal agencies must
prepare a detailed environmental review. NEPA also created the Council
on Environmental Quality, which issued regulations and guidance
implementing NEPA.
While NEPA itself is short, it is these regulations, plus 40 years
worth of case law, that define the details of how the environmental
reviews required by NEPA are carried out. H.R. 4377 appears to codify
some of what is already out there in terms of how NEPA reviews are
conducted. In other ways, however, H.R. 4377 appears to be a
significant departure from current practice.
I will leave it to our witnesses to discuss the substantive merits
of H.R. 4377. As the Ranking Member of the Subcommittee with
jurisdiction over the APA, however, I do think it important to raise
one concern at the outset.
It is unclear to me why all the changes to or codifications of NEPA
practice contemplated in H.R. 4377 belong in the APA. If H.R. 4377's
proponents would like to amend or add to NEPA's environmental review
requirements, they should simply go ahead and amend NEPA.
I am very wary of using the APA as a back door way of amending
other statutes or substantive law. As I have said many times before,
the APA is our ``administrative Constitution.''
And like the actual Constitution, we should be very careful in
tinkering with it. I am concerned that H.R. 4377, as drafted, opens the
door to amending other statutes or substantive law by simply adding
subchapters to the APA. This is not the purpose or function of the APA,
and we ought to guard against that temptation.
I thank our witnesses for being here today. In particular, I would
like to acknowledge Gus Bauman, an accomplished lawyer and an old
acquaintance of mine from Memphis.
I would also like to acknowledge Dinah Bear, who served for a
quarter century as the General Counsel for the Council on Environmental
Quality and, therefore, knows NEPA and its associated regulations, case
law, and guidance better than almost anyone else.
I welcome all of our witnesses and look forward to their testimony.
Prepared Statement of the Honorable John Conyers, Jr., a Representative
in Congress from the State of Michigan, and Ranking Member, Committee
on the Judiciary
The title of H.R. 4377, namely, the ``Responsibly and
Professionally Invigorating Development Act of 2012,'' or ``RAPID
Act,'' unfortunately is misleading.
Rather than effectuating real reforms to the process by which
federal agencies undertake environmental impact reviews as required by
the National Environmental Policy Act, or NEPA, this legislation will
actually result in increasing, not expediting this process.
And, it inexplicably only addresses a subset of these reviews:
those that pertain to construction projects that are federally-funded
or that require federal approval.
But, more importantly, this bill is yet another effort by my
friends on the other side of the aisle to undermine regulatory
protections.
In fact, this is the thirteenth hearing at which we have considered
an anti-regulatory measure this Congress.
As with all the other bills, H.R. 4377 is a thinly disguised effort
to hobble the ability of federal agencies to be able to do the work
that we in Congress have assigned them to do.
H.R. 4377 very much embodies many themes reflected in other anti-
regulatory bills that we have considered this Congress, but at least
three concerns stand out.
First, this bill--like other measures that we have previously
considered--is a solution in search of a problem. It is unclear what
exactly is the problem H.R. 4377 seeks to address.
While the NEPA environmental review process may not be perfect, it
still remains a model for other countries throughout the world for
establishing a systemic foundation for facilitating interagency
collaboration, integrated decisionmaking, and public input on
environmental impact statements and assessments.
Like the Administrative Procedure Act, NEPA provides a flexible
review framework for all federal projects--not just construction
projects--that require federal approval pursuant to other federal
statutes like the Clean Air Act.
NEPA appropriately leaves it to individual agencies to craft
regulations implementing the Act's environmental review requirement in
recognition of that fact that such reviews must be tailored to specific
types of projects.
H.R. 4377 instead uses a one-size fits all approach that
incorporates numerous specific procedural steps that may or may not
work well in all instances. This is an undertaking that we should be
very wary of taking.
In response to the complaint of H.R. 4377's proponents that NEPA
reviews sometimes take too long, I say that the real problem is not
with the requirements of the review process--which may vary from
project to project or from agency to agency--but with the lack of
resources that we give to agencies.
An agency can only move so quickly to review project proposals when
it has ever-shrinking appropriations to obtain competent staff and
other resources.
Yet I am willing to bet that some of the proponents of this bill
would also strenuously oppose increasing funding for agencies, which
would certainly help to speed up the review process.
Second, it is clear that the real motivation underlying H.R. 4377
is to shift power away from a government accountable to the public and
hand it to politically unaccountable industry so that it can run
roughshod over everyone else.
This general tack is highlighted by a number of the bill's
provisions.
For example, H.R. 4377 facilitates potential corruption or, at a
minimum, encourages an unseemly relationship between industry and
regulators by allowing a lead agency to accept ``voluntary
contributions'' from a project sponsor, which the agency must use to
undertake an environmental review.
In its most gross context, this provision seems to authorize a
bribe. Under current law, it is a crime to give an item of value to a
federal entity in exchange for an official act.
While H.R. 4377's authorization of ``voluntary contributions''
perhaps may not fall squarely within the statutory definition of a
bribe, this provision fails to delineate any brightlines between the
two.
Even if not a bribe, such contributions could unduly taint the
environmental review process and create the appearance of a conflict of
interest for agencies. At a minimum, cash-strapped agencies, in
particular, may prioritize reviews of projects for which sponsors have
paid for the review and ignore those for which no payment was offered.
In addition, the bill appears intended to limit the opportunity for
public participation and impose deadlines that may be unrealistic under
certain circumstances.
Third, H.R. 4377 would create a parallel environmental review
process that would only lead to confusion, delay, and litigation.
As I noted at the outset, the changes to the NEPA review process
contemplated by H.R. 4377 apply only to proposed federal construction
projects.
NEPA, however, applies to a broad panoply of federal actions,
including fishing, hunting, and grazing permits, land management plans,
Base Realignment and Closure activities, and treaties. In contrast,
H.R. 4377 applies only to a subset of federal activities.
In fact, even this subset is ill-defined under H.R. 4377, as the
bill has no definition for what actually would constitute a
construction project.
This could lead to two different environmental review processes for
the same project. For example, H.R. 4377's requirements would apply to
the construction of a nuclear reactor, but not to its decommissioning
or to the transportation and storage of its spent fuel.
Rather than streamlining the NEPA process, H.R. 4377 only adds
complication, confusion, and potential litigation to the process.
I appreciate that the supporters of this bill have tried to reach
out to the Committee minority to try to garner support. Unfortunately,
I am not able to lend my support for this bill as it raises too many
concerns for me.
I think the testimony of Dinah Bear, who served as the General
Counsel of the Council for Environmental Quality at the White House
under both Republican and Democratic administrations for a total of 25
years, will be particularly instructive.
I thank her and the other witnesses for agreeing to participate in
today's hearing.
Attachment to the Prepared Statement of Thomas Margro, CEO,
Transportation Corridor Agencies
Letter from Organizations Opposed to the Legislation
Response to Post-Hearing Questions from William L. Kovacs, Senior Vice
President, Environment, Technology and Regulatory Affairs, U.S. Chamber
of Commerce
Post-Hearing Questions submitted to Gus Bauman, Esq.,
Beveridge & Diamond, P.C., and Related E-mail Correspondence
Response to Post-Hearing Questions from Dinah Bear, Esq.,
former General Counsel, Council on Environmental Quality
Response to Post-Hearing Questions from Thomas Margro, CEO,
Transportation Corridor Agencies