[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


                                _____

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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

                              ----------                              

                             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





                                 
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