[Senate Hearing 116-44]
[From the U.S. Government Publishing Office]


                                                     S. Hrg. 116-44

       OVERSIGHT OF FEDERAL INFRASTRUCTURE PERMITTING AND FAST-41

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

                                HEARING

                               BEFORE THE

                PERMANENT SUBCOMMITTEE ON INVESTIGATIONS

                                OF THE

                              COMMITTEE ON
               HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
                          UNITED STATES SENATE

                     ONE HUNDRED SIXTEENTH CONGRESS


                             FIRST SESSION

                               ----------                              

                              MAY 2, 2019

                               ----------                              

        Available via the World Wide Web: http://www.govinfo.gov

                       Printed for the use of the
        Committee on Homeland Security and Governmental Affairs
        
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        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

                    RON JOHNSON, Wisconsin, Chairman
ROB PORTMAN, Ohio                    GARY C. PETERS, Michigan
RAND PAUL, Kentucky                  THOMAS R. CARPER, Delaware
JAMES LANKFORD, Oklahoma             MAGGIE HASSAN, New Hampshire
MITT ROMNEY, Utah                    KAMALA D. HARRIS, California
RICK SCOTT, Florida                  KYRSTEN SINEMA, Arizona
MICHAEL B. ENZI, Wyoming             JACKY ROSEN, Nevada
JOSH HAWLEY, Missouri

                Gabrielle D'Adamo Singer, Staff Director
               David M. Weinberg, Minority Staff Director
                     Laura W. Kilbride, Chief Clerk
                      Thomas Spino, Hearing Clerk


                PERMANENT SUBCOMMITTEE ON INVESTIGATIONS

                       ROB PORTMAN, Ohio Chairman
RAND PAUL, Kentucky                  THOMAS R. CARPER, Delaware
JAMES LANKFORD, Oklahoma             MAGGIE HASSAN, New Hampshire
MITT ROMNEY, Utah                    KAMALA D. HARRIS, California
JOSH HAWLEY, Missouri                JACKY ROSEN, Nevada

            Andrew Dockham, Staff Director and Chief Counsel
                   Amanda Neely, Deputy Chief Counsel
                John Kilvington, Minority Staff Director
                      Kate Kielceski, Chief Clerk
                            
                            
                            C O N T E N T S

                                 ------                                
Opening statements:
                                                                   Page
                                                                   
    Senator Portman..............................................     1
    Senator Carper...............................................     4
    Senator Lankford.............................................    22
Prepared statements:
    Senator Portman..............................................    35
    Senator Carper...............................................    40

                               WITNESSES
                         Thursday, May 2, 2019

Alexander Herrgott, Executive Director, Federal Permitting 
  Improvement Steering Council...................................     7
Laura Abram, Director, Project Execution and Public Affairs, 
  First Solar....................................................     9
Michael Knisley, Executive Secretary-Treasurer, Ohio State 
  Building and Construction Trades Council.......................    11
Joseph M. Johnson, Ph.D., Executive Director, Federal Regulatory 
  Process Review and Analysis, Environment, Technology, and 
  Regulatory Affairs, U.S. Chamber of Commerce...................    13
Raul E. Garcia, Senior Legislative Counsel, Policy and 
  Legislation Department, Earthjustice...........................    15

                     Alphabetical List of Witnesses

Abram, Laura:
    Testimony....................................................     9
    Prepared statement...........................................    48
Garcia, Raul E.:
    Testimony....................................................    15
    Prepared statement...........................................    63
Herrgott, Alexander:
    Testimony....................................................     7
    Prepared statement...........................................    43
Johnson, Joseph M.:
    Testimony....................................................    13
    Prepared statement...........................................    58
Knisley, Michael:
    Testimony....................................................    11
    Prepared statement...........................................    54

                                APPENDIX

Responses to post-hearing questions for the Record:
    Mr. Herrgott.................................................    71

 
       OVERSIGHT OF FEDERAL INFRASTRUCTURE PERMITTING AND FAST-41

                              ----------                              


                         THURSDAY, MAY 2, 2019

            U.S. Senate, Permanent Subcommittee on 
                                    Investigations,
   Committee on Homeland Security and Governmental Affairs,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 10:08 a.m., in 
room SD-342, Dirksen Senate Office Building, Hon. Rob Portman, 
Chairman of the Subcommittee, presiding.
    Present: Senators Portman, Lankford, Romney, Hawley, 
Carper, Hassan, and Rosen.

            OPENING STATEMENT OF SENATOR PORTMAN\1\

    Senator Portman. The hearing will come to order. Thank you 
all for being here.
---------------------------------------------------------------------------
    \1\ The prepared statement of Senator Portman appears in the 
Appendix on page 35.
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    Our schedule is a little crazy today. We have votes 
scheduled for 10:30, and there are enough votes that probably 
we will be taking about an hour break. Our hope is to get 
through all of your testimony before we run off to vote, and 
then if you are willing and patient, we would like you to stay 
here, and then we will come back and have the opportunity for 
Q&A.
    I know Senator Carper has some opening comments; I have 
some opening comments. We will go through those quickly, get 
you all sworn in, and then have the opportunity to run to vote 
and come back.
    First of all, thank you for being here and thanks to my 
colleagues for being here. I know a couple others are planning 
to join. This is a very important issue, particularly in light 
of what is going on this week. We had the President and members 
of the House leadership meeting about infrastructure. Everybody 
is looking for more money for infrastructure, right? 
Infrastructure is what really this hearing is about. It is 
about permitting of infrastructure, broadly defined. It is 
about construction projects that play a critical role in all of 
our day-to-day lives. It is about ports and waterways we use 
for international commerce. It is about water resource projects 
to stop flooding from storm surges. It is about energy 
construction to make sure we have the power we need from solar 
power plants that we will hear about today to pipelines to 
nuclear power plant construction. It is about coastal 
restoration that supports the environment. It is also about 
broadband Internet throughout the country, which allows 
Americans to advance their education and rise in the workforce. 
It is about ensuring we can move forward with these projects in 
sensible ways.
    Delays and lack of investment in these infrastructure and 
construction projects have a number of damaging consequences. 
First, it means fewer jobs, and we will hear from Mr. Knisley 
and others about that today. It means a weaker economy and a 
reduced standing in the world. It means we are not making 
progress on major projects and capital is going elsewhere, 
including to other countries. It is hurting our economy and our 
ability to create good-paying jobs. One of the reasons we are 
having so much trouble is this outdated process we have for 
granting permits for large projects, construction projects, and 
infrastructure projects.
    Everyone is desperate to find dollars for infrastructure 
right now, right? This is a way, frankly, for us to ensure that 
we are smarter in stretching the dollars we have further by not 
having those dollars be wasted on the delays and the dollars 
will stay here in this country.
    Right now, the World Bank ranks the United States 26th in 
the world for dealing with construction permits for being able 
to green-light a project. Twenty-sixth in the world. That puts 
us behind Lithuania and Tonga. It is also better than it used 
to be. We were 39th in the world when Fixing America's Surface 
Transportation Act (FAST-41), the legislation we are talking 
about today, was implemented. We have made some progress.
    Similarly, there was the 2017 Infrastructure Report Card, 
the most recent one from the American Society of Civil 
Engineers. They gave the United States a ``cumulative GPA'' of 
D+ ranging ``from a B for Rail to D for roads.'' One reason we 
are so behind is that it takes so long and it is so costly to 
be able to permit a project here in the United States. We can 
do better than this. The rest of the world is doing better, 
other developed countries, and many of the developing 
countries. Otherwise, capital goes elsewhere.
    Let me be clear: We can fix this permitting process without 
changing the underlying environmental and safety standards, and 
that is something we will talk about today. Protecting the 
environment and protecting people who use our infrastructure is 
critical. But we need strong standards. The process that we use 
to meet those standards has simply become too complicated and 
outdated.
    I first got involved with this about 10 years ago when 
American Municipal Power (AMP)--some of you know that group--
came to me. AMP was working on a hydropower project on the Ohio 
River. They told me the agencies reviewing their permit 
applications were not talking to each other, and they told me 
as soon as they finished one permit, there was another permit 
that came up seriatim rather than having anyone be accountable. 
They said there were mistakes, delays, redundancies. It took 
them 10 years to get the permit to put a small hydropower plant 
on the Ohio River. Frankly, I think they wished they had never 
even started on this project because it just became too costly.
    Capital is not that patient. Ten years is just too long, 
and no one wants to invest in a project that is not going to be 
ready for at least a decade.
    I reached out to colleagues, including Senator McCaskill 
from Missouri. We did what legislators are supposed to do: we 
worked on a bipartisan basis with a whole array of stakeholders 
to put together a new process for permitting. We worked with 
environmental groups like the Natural Resources Defense Council 
(NRDC), business groups like National Association of 
Manufacturers, labor groups like the The American Federation of 
Labor and Congress of Industrial Organizations (AFL-CIO) 
Building Trades Council, and we introduced this bipartisan bill 
as part of this effort called the ``Federal Permitting 
Improvement Act.'' It is now part of the highway bill, so it 
became part of the FAST bill, therefore, FAST-41, which is 
Section 41 of FAST.
    Large projects apply to get help from the Council in 
navigating the permitting process. The agencies involved in 
that project have to designate a lead agency so a project 
sponsor can have a single point of contact. One agency is 
accountable. It is very important to have accountability, we 
learned. The agency is responsible for coming up with a 
Coordinated Project Plan (CPP) that they submit to this Federal 
Permitting Improvement Steering Council (FPISC) that we will 
hear from today. The plan sets out each permit, all the studies 
needed, and a timeline for completion. Then, as the process 
moves along, the Council's Executive Director, who is here with 
us today, resolves conflicts that might arise between the 
agencies.
    The law also gives accountability in another way. It gives 
the public more accountability because it requires that 
agencies post a project's plan on the online Permitting 
Dashboard so the public can see, so the transparency is there, 
how that permitting process is going.
    By the way, FAST-41 does not guarantee a project is going 
to get approved. It may or may not get approved. It just helps 
them get the project moving along. It gives them an answer one 
way or the other.
    It also reduces the statute of limitations for lawsuits. 
The National Environmental Policy Act (NEPA) statute of 
limitations for most projects is 6 years. That means that for 6 
years after permits are granted, many projects really do not 
get started--they are waiting because of these lawsuits that 
might pop up.
    For covered projects, under this bill it is a 2-year 
statute of limitations. That was a compromise. We had initially 
asked for 150 days and then 180 days. But some groups wanted to 
be sure it was 2 years. That is still a lot longer than the 150 
days for traditional transportation projects. Both the FAST-41 
2-year limitation and the MAP-21 150-day statute of limitations 
were carefully crafted, bipartisan agreements signed into law 
in the Obama Administration. During the Obama Administration, 
we limited certain transportation projects under our 
transportation bill in a bipartisan way to 150 days, and ours 
is 2 years.
    Finally, good news. FAST-41 is working. Over the past few 
years, the Council has saved projects more than $1 billion in 
avoided delays. There are now 40 major projects on the 
Permitting Dashboard, and new sponsors are interested in 
participating and applying to do so. The Council has helped 
electricity transmission and pipeline projects, as well as 
several major environmental restoration projects and renewable 
energy projects. For instance, today we are going to hear from 
Laura Abram from First Solar about how the Council assisted the 
Desert Quartzite Project move forward with a 450-megawatt solar 
power development in California.
    I am also looking forward to hearing from Mike Knisley, the 
executive secretary and treasurer of the Ohio Building Trades. 
The union has been incredibly supportive of FAST-41, and we are 
grateful for your support, Michael.
    I would also like to say that, after a few years of delays, 

FAST-41 is going full steam ahead. We had difficulty getting an 
Executive Director in place. We now have one, Alex Herrgott. We 
will hear from Alex today. I am really glad he is there. After 
a 21-month gap in an appointed Executive Director, it is good 
to have an enthusiastic and energetic leader in that job. We 
will hear from him today.
    We wanted to make sure it would work, so we put a 7-year 
sunset on the legislation. Now that it is working, Senator 
McCaskill and I introduced a bill last Congress to remove that 
sunset and give the Council's Executive Director the ability to 
give advice to other projects when asked. It also would set a 
2-year goal for agencies to finish the permitting process for 
these projects. Two years. It is not a hard and fast deadline; 
sometimes projects are going to take longer. It is a goal. But 
setting that goal will help inject additional accountability, 
common-sense accountability into this process. Even with its 
slow start, after just 3 years, FAST-41 is now yielding real 
results. These results mean certainty for project sponsors, 
which means more certainty for investors and more certainty for 
projects that they are going to get built. It means more jobs 
for the people who build these projects. It means better roads, 
ports, and energy transmission--all of which spur more economic 
growth. It means being able to move forward faster with much-
needed environmental restoration projects, like the coastline 
restoration projects in Louisiana and the renewable energy 
projects we talked about earlier.
    Finally, again, it enables us to stretch that dollar 
further to be able to do more in terms of infrastructure.
    Thank you all for being here today. I am looking forward to 
hearing from the witnesses how they are improving the process 
and what we can do better going forward. I would ask Senator 
Carper for his comments.

             OPENING STATEMENT OF SENATOR CARPER\1\

    Senator Carper. Thanks. Thanks so much, Mr. Chairman, for 
pulling this together. To our witnesses, thank you for joining 
us today. I apologize also for the votes. When the Chairman and 
I are running the show in the Senate, we will make sure that 
these hearings are scheduled and the votes are scheduled in 
ways that are more accommodating to what we are trying to get 
done here.
---------------------------------------------------------------------------
    \1\ The prepared statement of Senator Carper appears in the 
Appenidx on page 40.
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    Forty-eight hours ago almost to the minute, another meeting 
was convening in the White House, and the President welcomed 10 
of us, House and Senate Members, Democrats, all Democrats, to 
talk about a path forward on infrastructure, broadly--roads, 
highways, bridges, transit, water projects, deployment of 
broadband--and also to talk about how much it should be, how 
vast it should be. We talked about everything except how to pay 
for $2 trillion worth of infrastructure. That will come soon, I 
am hopeful.
    But in the last decade, we have passed some 35 short-term 
fixes for transportation before we were able to finally pass 
the FAST Act, which was, I think, the first long-term bill we 
passed in about a decade.
    However, the FAST Act expires, as you may know, in 
September of next year, and we have a responsibility to avoid 
another series of short-term fixes. They waste money; they 
create uncertainty. They are debilitating and force us to put 
off needed investments. We need to avoid that.
    Numerous studies, as the Chairman knows, tell us that we 
are falling behind other developed countries when it comes to 
making these kinds of investments in our infrastructure, writ 
large. With respect to our roads and highway infrastructure, 
which the Environment and Public Works (EPW) Committee on which 
I serve as Ranking Member examined in a hearing last month, the 
challenge we have before us is clear.
    Listen to this. We have an $800 billion backlog of 
investments that we need to make just in our roads, highways, 
and bridges. An $800 billion backlog. Many of our highways were 
built more than a half-century ago, our bridges, too, and as a 
result they are reaching the end of their useful life. More 
than 47,000 of our bridges are structurally deficient, most of 
them in Delaware and Ohio. There are 235,000 bridges in need of 
repair, replacement, or major rehabilitation.
    The consequences of underinvestment are great, as you know. 
Last year, every American--listen to this. Every American lost 
97 hours due to traffic congestion on average--97 hours. It is 
not just like going along at 5, 10, or 20 miles an hour. 
Sitting still. I have been there and you have, too. But if you 
add up the cost of all that sitting there and doing nothing, it 
comes up to about $87 billion that is estimated nationwide in 
lost productivity. But all of the time that we spent in our 
cars, trucks, or vans in traffic also contributes, as we know, 
to air pollution and increases the cost of goods.
    Underinvestment in roads and highways also has had an 
impact on safety. In 2017, more than 37,000 people died in 
motor vehicle crashes. That is more than the population of 
Dover, Delaware. Pedestrian deaths are now at a 25-year high. 
Think about that. Pedestrian deaths are not going down; they 
are going up. They are at a 25-year high.
    Given all that we need to do to improve and rebuild our 
highways and other infrastructure, I have thought a lot about 
how we can build projects smarter and more cost effectively. As 
our Chairman said, our Committee Members, including at least 
one other recovering Governor here on my left side, I have also 
thought a lot about--in fact, two recovering Governors. I have 
thought a lot about how well the rules and the permitting 
processes that we have in place actually work and how we might 
make them work better. Over the years I have supported 
reasonable changes designed to improve Federal coordination and 
efficiency.
    We have also made a number of changes to permitting and 
project approval procedures in the last three highway bills. 
Before we entertain a whole lot of new ideas, I think it is 
important for us to first determine whether the provisions that 
we have enacted--some 60 in all in the last three 
transportation bills--are being fully implemented and staffed--
Alex and people like 
Alex--and actually paid for. We are trying to make sure that we 
do all of that and follow up. It is not enough just to 
authorize something. It is important that we have the right 
people running the programs, implementing the programs, and 
paying for them.
    I have tried to make it clear in the past, but it bears 
repeating: I am not going to be supporting further weakening of 
environmental protections in the name of accelerating project 
delivery. It is critical that the lion's share of provisions we 
have already enacted in this area be implemented and funded so 
that we can better understand what their impact is before we 
consider adopting a whole lot more. To be able to do that, we 
need effective oversight like we are considering here today, 
and this is an important hearing.
    I believe that all of our witnesses and our stakeholders my 
staff and I have spoken to in preparation for this hearing 
agree that the provisions in FAST-41 do show promise. The 
permitting dashboard, that the Chairman has alluded, in the law 
calls for offers needed transparency into the permitting 
process and should help us hold permitting agencies accountable 
for meeting deadlines. In addition, the Federal Permitting 
Improvement Steering Council offers project sponsors and other 
interested parties a place to turn with questions. The Council 
also creates a venue where the challenges that inevitably arise 
as a major project progresses can be discussed and resolved.
    That said, it seems that the Council and the implementation 
of FAST-41 have been held back at least in part due to a lack 
of funding and a lack of leadership. We hope that is behind us 
now. The Council recently saw a significant increase in its 
budget, but in past years it was barely given enough to get by.
    In addition, until about 4 months ago, the Council lacked a 
permanent director, but that was before President Trump 
appointed our friend, Alex. The Council had been operating with 
an acting director since the end of the Obama Administration 
more than 2 years ago now.
    As a result, we may not have enough information to know 
whether FAST-41 is working as intended, especially with respect 
to some of the most controversial provisions.
    Having said that, I look forward to learning more today 
from all of you, and especially from Alex, and our other 
witnesses, about the Council's work, as well as the other 
issues that Congress should consider as we work in the coming 
months to put together a major, bipartisan infrastructure bill.
    Welcome, everyone. Thank you.
    Senator Portman. Thank you, Senator Carper.
    We will now call on our panel of witnesses for this 
morning's hearing. First, Alexander Herrgott, who, as 
referenced earlier, is Executive Director of the Federal 
Permitting Improvement Council.
    Second, Laura Abram. Ms. Abram is director of Project 
Execution West and Public Affairs of First Solar, Inc.
    Next, Michael Knisley. Michael is Executive Secretary-
Treasurer of the Ohio State Building Trades Council.
    Next, Joseph Johnson, who is executive director for Federal 
Regulatory Process Review and Analysis at the U.S. Chamber of 
Commerce.
    Mr. Raul Garcia, senior legislative counsel at 
Earthjustice.
    I appreciate you all being here today and look forward to 
your testimony. Our rules require us to swear in the witnesses. 
At this time I would ask you to stand and raise your right 
hand, please. Do you swear that the testimony you will give 
before this Subcommittee will be the truth, the whole truth, 
and nothing but the truth, so help you, God?
    Mr. Herrgott. I do.
    Ms. Abram. I do.
    Mr. Knisley. I do.
    Mr. Johnson. I do.
    Mr. Garcia. I do.
    Senator Portman. Let the record reflect that the witnesses 
all answered in the affirmative. We will be using a timing 
system today. I know you are aware of that. All your written 
testimony will be printed in the record in its entirety. We ask 
you to try to keep your oral testimony, though, to 5 minutes.
    Mr. Herrgott, we will hear from you first.

  TESTIMONY OF ALEX HERRGOTT,\1\ EXECUTIVE DIRECTOR, FEDERAL 
            PERMITTING IMPROVEMENT STEERING COUNCIL

    Mr. Herrgott. Alright. Chairman Portman, Ranking Member 
Carper, and Members of the Committee, thank you for the 
opportunity to testify today on how Title 41 of the Fixing 
America's Surface Transportation Act is improving the Federal 
permitting process. As you know, enacted by Congress in 2015, 
FAST-41 established a coordinating framework designed to 
improve the permitting process for a diverse portfolio of 
proposed large-scale, complex infrastructure projects across 
the Nation. A key component of the framework is the Federal 
Permitting Improvement Steering Council, chaired by an 
Executive Director appointed by the President. The Permitting 
Council is an interagency body comprised of 14 Federal 
agencies, the Council on Environmental Quality (CEQ), and the 
Office of Management and Budget (OMB). In the last 4 months 
since I became the Executive Director, we have focused on 
leveraging this interagency body to bring about a new era of 
transparency, efficiency, and accountability. We are actively 
reducing unnecessary red tape, costs, and delays for FAST-41 
projects.
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    \1\ The prepared statement of Mr. Herrgott appears in the Appendix 
on page 43.
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    As you know, today the Federal infrastructure permitting 
process can be very fragmented, unpredictable, and inefficient, 
as you can see by the chart over on the left side of the room. 
There are many Federal statutes that govern infrastructure 
permitting, and they are executed by multiple Federal agencies. 
In addition, there can be significant overlap in statutory 
requirements and significant inconsistency in the application 
of those requirements in the permitting process. FAST-41 
provides an interagency mechanism to coordinate implementation 
of multiple permitting statutes including by providing, very 
importantly, a single unified schedule.
    The permitting process can include compliance not only with 
numerous Federal statutes, but also State and local laws and 
ordinances, and may vary significantly depending on the unique 
nature of infrastructure being proposed, such as its location 
and potential impacts. For example, one FAST-41 project has 19 
cooperating agencies (7 Federal, 3 State, 6 County, and 3 other 
entities), of which 9 Federal permitting actions are tracked on 
the Dashboard. Another FAST-41 project involves over 30 Federal 
permitting actions and over 50 State and local permitting 
actions, one of which could comprise authorization for 611 
water crossings.
    In recognition of these complex permitting challenges, 
FAST-41 established a voluntary program for eligible large, 
complex infrastructure projects for which the Permitting 
Council provides a one-stop shop within the Federal Government 
for coordinating process across all Federal agencies. FAST-41 
does not modify any underlying Federal statutes, regulations, 
or mandatory reviews. In other words, the Office of the 
Executive Director (OED) serves as an impartial third party 
that helps shepherd projects to deliver a definitive beginning 
and a definitive end to the permitting process, something we 
have long desired.
    FAST-41 respects agencies' responsibilities as regulators 
while also serving as a reliable Federal partner to all 
stakeholders--State, local government officials, tribes, the 
public, and all project proponents. FAST-41 project permitting 
durations are, therefore, on average, 2.3 years shorter than 
other Environmental Impact Statements (EISs) prior to the 
commissioning of this Council.
    This year, the Permitting Council has grounded its 
activities on five key principles designed to keep FAST-41 
projects on track and on schedule: first, demystifying the 
permitting process at each agency; two, clarifying roles and 
responsibilities among Federal agencies to avoid issues that 
could derail a project; three, aligning agency roles and 
permitting processes, where possible, in the following ways: 
with joint and programmatic approaches, getting them to 
actually talk to each other in the very beginning, improved 
planning among agencies, and maximization of concurrent 
permitting actions; four, requiring transparency and 
accountability in meeting milestones throughout the process; 
five, sharing lessons learned to facilitate successful adoption 
and implementation of best practices to improve the permitting 
process across all agencies.
    These principles are carried out through four critical 
Permitting Council activities that work together to reduce the 
decisionmaking process without compromising our valued natural, 
community, cultural, and historic resources. These four 
activities include our fiscal year (FY) 2019 best practices, 
which is on our website as of earlier this week. The Office of 
the Executive Director also issues an annual report to Congress 
which it transmitted on April 15 of this year. Three, the 
Office of the Executive Director works in partnership with the 
Council to provide in-person, hands-on facilitation of 
interagency permitting, not just here at headquarters but also 
out in the field. This allows my office to help agencies align 
their permitting processes and develop a prudent, timely, and 
realistic permitting schedule. Should conflicts arise, FAST-41 
provides a formal dispute resolution process to ensure a final 
decision is reached in a timely and efficient manner.
    Finally, as Chair of the Permitting Council, my office is 
actively working with the Permitting Council agencies to help 
support agency field staff responsible for implementing FAST-41 
provisions and managing the permitting process. The inherent 
complexity of these projects combined with the decentralized 
organizational structure of many agencies provides for 
inconsistent interpretation of policies and guidance from the 
headquarters offices. This is the heart of our problem.
    To address this, my office is working with the agency staff 
in the headquarters, regional, and field offices to identify 
how we can best support consistent implementation of FAST-41 
provisions, including on-location meetings with agency staff 
and community stakeholders.
    I look forward to continuing to work with you on 
implementing FAST-41 through the promotion of reliable and 
comprehensive permitting schedules and increased coordination 
and collaboration.
    Thank you again for the opportunity to participate, and I 
look forward to answering any questions.
    Senator Portman. Thank you. Ms. Abram.
    Senator Carper. I think you just set a record for the most 
words in 5 minutes. [Laughter.]
    In my 18 years in the U.S. Senate, Alex.
    Mr. Herrgott. Senator, as you recall, I get paid by the 
word.
    Senator Portman. Ms. Abram.

 TESTIMONY OF LAURA ABRAM,\1\ DIRECTOR, PROJECT EXECUTION AND 
               PUBLIC AFFAIRS, FIRST SOLAR, INC.

    Ms. Abram. Good morning, Chairman Portman, Ranking Member 
Carper----
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    \1\ The prepared statement of Ms. Abram appears in the Appendix on 
page 48.
---------------------------------------------------------------------------
    Senator Carper. This does not count against your time, but 
I have a member of my staff who just briefs me, and she talks 
like a million miles an hour. I am always saying, ``Diane, I 
cannot listen that fast.'' [Laughter.]
    Ms. Abram. OK. Good morning, Chairman Portman, Ranking 
Member Carper, and Members of the Committee on Homeland 
Security and Governmental Affairs (HSGAC) Permanent 
Subcommittee on Investigations (PSI). I am pleased to be here 
today to discuss First Solar's experience with FAST-41, the 
Permitting Council, and recommended solutions to ensure 
successful and timely permitting of energy infrastructure 
projects on Federal lands that will create jobs and economic 
benefits and help our country reach its goal of American energy 
dominance.
    I am the director of Project Execution and Public Affairs 
for First Solar, and I have worked on solar projects on Federal 
lands for the past decade. My testimony today will present 
information from my direct experience, with a focus on 
permitting of the Desert Quartzite Solar Project.
    To begin, I would like to provide you with a high-level 
overview of First Solar. First Solar is an American solar 
manufacturer and the largest U.S. provider of thin-film 
photovoltaic (PV) panels. The company has extensive experience 
and a proven track record developing, constructing, and 
operating the world's largest solar power plants.
    First Solar's world-class 600 megawatt manufacturing 
facility in Perrysburg, Ohio, employs about 1,250 full-time 
associates. Last year, I am excited to say that First Solar 
broke ground on a new 1.2-gigawatt manufacturing facility in 
Ohio which will directly employ over 500 full-time associates. 
We have shipped over 20 gigawatts worldwide, have 6,000 
megawatts in the United States, and 2,500 megawatts in 
operation or development on Federal land.
    The messages I hope to leave with you today are these:
    Number one, photovoltaic solar is one of the lowest-cost 
energy resources today and is an important part of America's 
energy mix.
    Number two, Federal lands are ideal for responsible solar 
development, yet we face challenges to utilizing Federal lands, 
including rents that are not competitive with private lands.
    Number three, FAST-41 and the Permitting Council have 
played an important role in addressing timely permitting of 
infrastructure projects and should expand its role to further 
improve interagency collaboration and streamlining of the 
environmental review and approval process.
    FAST-41 and the Permitting Council have supported First 
Solar in expediting permitting on two projects, including the 
100 megawatt Aiya Solar Project, located on tribal land in 
Nevada, and the 450-megawatt Desert Quartzite Solar Project, 
located in Riverside County, California.
    The Desert Quartzite Project has been in active development 
for approximately 5 years, and permitting is expected to be 
complete in October 2019. The project has faced many permitting 
challenges that have caused up to 2 years in delays; however, 
FAST-41 and the Permitting Council have provided First Solar 
with support in helping to navigate the various issues and to 
assist in keeping the project on schedule. Although First Solar 
did not have many interagency issues, the Permitting Council 
did play a key role in supporting us in coordinating across 
local, State, and Federal levels within the Bureau of Land 
Management (BLM). First Solar has also received support from 
the Department of Interior (DOI), which has been responsive to 
concerns and continues to help facilitate resolution of issues 
on Desert Quartzite and other solar issues we are working on.
    Based on our direct experience, First Solar recommends that 
FAST-41 and the Permitting Council play an active role in the 
permitting process from the beginning and assist not only to 
keep the project on schedule, but to serve as a central point 
of contact for project proponents to help navigate the complex 
issues and intergovernmental challenges that can cause project 
delays. In fact, Desert Quartzite is currently on pause, and 
close collaboration between FAST-41, BLM, and DOI can help 
address issues and get the project back on schedule.
    In conclusion, responsible construction of solar 
infrastructure on Federal lands can and should be a bipartisan 
priority. Many of the challenges can be addressed by FAST-41 
and the Permitting Council, but it is important to understand 
that streamlining alone will not ensure successful development 
of energy infrastructure projects. It is important to implement 
more flexible approaches to land availability, ensure rents are 
competitive with private land markets, and provide adequate 
staffing.
    Thank you very much for the opportunity to testify here 
today. I would be happy to answer any questions you may have.
    Senator Portman. Thank you, Ms. Abram.
    Mr. Knisley.

  TESTIMONY OF MICHAEL KNISLEY,\1\ SECRETARY-TREASURER, OHIO 
         STATE BUILDING AND CONSTRUCTION TRADES COUNCIL

    Mr. Knisley. Good morning, Senator Portman and Members of 
the committee. Thank you for your leadership on this issue and 
for inviting me to testify during this hearing on Title 41 of 
the Fixing America's Surface Transportation Act. As secretary-
treasurer of the Ohio State Building and Construction Trades 
Council, and on behalf of the 100,000 union construction 
workers in Ohio that I proudly represent, I am pleased to have 
the opportunity to appear before this Committee to testify on 
the outcomes of FAST-41 and its benefits to the Ohio 
construction industry and those regions in our State which 
depend on much-needed infrastructure projects for economic 
survival.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Knisley appears in the Appendix 
on page 54.
---------------------------------------------------------------------------
    On behalf of the working Ohioans and signatory contractors 
of the Ohio State Building and Construction Trades, I want to 
express our gratitude to Senator Portman and Senator Carper and 
the Members of this Subcommittee for your efforts to modernize 
the permitting process for major U.S. infrastructure projects. 
The Committee's commitment to reforming the permitting process 
through FAST-41 expedites the groundbreaking of major U.S. 
infrastructure projects, putting tens of thousands of Ohio 
Building Tradespeople safely and responsibly to work in a 
timely manner.
    Ohio labor leaders, contractors, and project owners 
strongly support and are grateful for the permitting reforms 
implemented by FAST-41. To echo Sean McGarvey, president of 
North America's Building Trades Unions, who testified before 
the Committee in June 2018, the ``permitting process for 
Federal infrastructure projects must be continually modernized 
to ensure efficiency, safety, accountability, and 
transparency.''
    FAST-41 works for Ohio and the wider Midwestern region our 
tradespeople serve insofar as it provides increased 
predictability of project timetables, facilitates coordination 
between agencies and solves interagency conflicts, sets 
reasonable deadlines in the permitting process, and reduces 
drawn-out litigation timeframes. As an organization driven by 
clear standards and safe, efficient processes, we applaud this.
    On behalf of the members and contractors of the Ohio State 
Building and Construction Trades, we commend the forward-
looking approach that this Committee, as well as the current 
and previous Administrations, have taken to reform the Federal 
project permitting system while maintaining responsible 
regulations that protect workers, our communities, and our 
environment. FAST-41 demonstrates that our government can come 
together in a bipartisan way to reform a broken permitting 
process without compromising the underlying regulations that 
keep American workers and their communities safe and healthy.
    In Ohio, we see firsthand how crucial such balanced reform 
measures are--not only for our economic growth and stability, 
but for the very social fabric of our communities. Particularly 
in southern Ohio's Appalachian communities, where local 
economies depend on a major project moving forward, it is very 
emotional for community members to endure the uncertainty of a 
broken permitting process.
    A project like the American Municipal Power's R.C. Byrd 
Hydropower development would bring thousands of middle-class 
construction jobs to the southern Ohio region and spur much-
needed economic growth. Before that project was included as a 
Federal Permitting Improvement Steering Council project, it was 
held captive by a 10-year licensing process. Redundancies and 
interagency disputes cost project owner AMP millions of 
dollars. The dollar figure does not account for the lost 
opportunity cost caused by a delayed project groundbreaking. 
When our workers are bringing home a steady paycheck from major 
projects, their entire communities feel the economic benefits 
of those earnings. But when communities wait for years and 
years for a major project to break ground, local businesses and 
the organizations funded by the tax revenues from these 
developments also suffer. A stagnant Federal permitting process 
prolongs economic stagnation in our communities.
    It is my professional opinion that had FAST-41 been in 
place when the R.C. Byrd Hydropower development was proposed in 
2007, this project would be well underway. Hundreds of union 
construction workers from depressed areas of Ohio would be on 
the job daily, and those union construction wages would flow 
back into Appalachia's depressed local economies.
    I have attended numerous community debates and agency 
hearings across the State of Ohio for projects similar to the 
R.C. Byrd Hydropower development. Let me tell you, it is 
emotional for a community to endure the planning necessary to 
break ground on a major infrastructure project. Differing 
factions in a community debate their economic and environmental 
concerns. Conflict among permitting agencies exacerbates that 
conflict, fueling misinformation over major projects and 
pitting neighbor against neighbor through years of uncertainty. 
This is how real Ohioans experience a dysfunctional permitting 
process. We see value in stabilizing the public sentiment for 
development projects, labor, contractors, and owners. When 
there is delay, and uncertainty, it is felt by our members in 
the community.
    All of you here in Washington have the power to relieve 
some of that conflict for hard-working people and their local 
governments. I urge the Federal Government to continue the 
progress that FAST-41 has started. I urge this body to make 
permanent the reforms of FAST-41, to strengthen its provisions, 
and to expand its application to more projects.
    The Nexus Pipeline is an example of the real benefits FAST-
41 reforms have brought to Ohio. The Enbridge gas transmission 
pipeline improves regional access to clean-burning fuels and 
was among the initial Fast-41 projects. Ohio Building 
Tradespeople across numerous communities and local union 
jurisdictions built the pipeline, which spans from northern 
Ohio to the western Toledo region. When I spoke with the owners 
of the pipeline, they felt strongly that FAST-41 brought strong 
value to the project due to the streamlined permitting 
processes and Federal interagency collaboration. In contrast to 
the decade-long R.C. Byrd permitting process, the Nexus 
Enbridge permitting took only 3 years. Since ground was broken 
on the pipeline, the project has created more than 6,800 
middle-class construction jobs with $650 million in wages plus 
benefits, the majority of which have been in Ohio. One Ohio 
school district expects to net $25 million in property taxes 
over the next 5 years as a direct result of that project being 
moved in a timely manner.
    The owners of this project and the Ohio Building Trades 
applaud this Committee and the sponsors of FAST-41 for removing 
the barriers to the project's success. One of the few 
bottlenecks in the Nexus Pipeline's development was the 
slowdown caused by a lack of quorum at the Federal Energy 
Regulatory Commission (FERC) in the final permitting. As a 
result of the unfilled positions in FERC, 4 to 8 months of 
delay were added to the pipeline.
    The owners have asked me to convey to you their desire to 
see continued modernization and streamlining through a 
permanent FAST-41 program. We ask the Committee to reinforce 
interagency collaboration, and we implore our agencies to 
strive every day to work more efficiently. The one thing that 
owners need is certainty in the permitting process. If owners 
know the timelines, they can work with that information. It is 
the uncertainty that gives them pause in proceeding with major 
projects because there is a lot at stake for the owners, 
contractors, and working people.
    I am going to stop right there and thank you for allowing 
me to voice the Ohio State Building and Construction Trade 
Council's support for FAST-41. We know there is room for 
progress, and we applaud this bipartisan proposal to strengthen 
and expand the FAST-41 policies permanently.
    Senator Portman. Thank you, Mr. Knisley.
    Dr. Johnson.

 TESTIMONY OF JOSEPH M. JOHNSON, PH.D.,\1\ EXECUTIVE DIRECTOR, 
       ECONOMIC POLICY DIVISION, U.S. CHAMBER OF COMMERCE

    Mr. Johnson. Good morning, Chairman Portman and Ranking 
Member Carper. Thank you for the opportunity to discuss this 
important issue today. The Chamber applauds your interest and 
continued efforts to promote and support common-sense Federal 
permitting reform.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Johnson appears in the Appendix 
on page 58.
---------------------------------------------------------------------------
    My statement today details the Chamber's support for the 
Federal permit streamlining provisions of FAST-41 and important 
next steps that are needed to help us modernize America's 
infrastructure.
    FAST-41 established a straightforward process to speed up 
permit decisions without risking the necessary health and 
environmental protections afforded by the underlying statutes. 
It included designation of a lead agency, timetables for 
projects, coordination between agencies, dispute resolution 
mechanisms, and judicial review reforms. Importantly, it 
created the Federal Permitting Improvement Steering Council, 
the multiagency body that is responsible for leading the 
process and doing the hard work of ensuring that the process 
works as intended by the statute.
    The Chamber has long stressed the need to streamline the 
Federal permitting process and was a supporter of FAST-41 from 
the very beginning because the benefits of permitting reform 
are overwhelming.
    First, as a general principle, government should operate in 
an open, transparent, accountable manner, and FAST-41 finally 
delivers this with the environmental review and permitting 
process where these attributes had historically been lacking.
    The Council has worked hard to make certain that agencies 
set a permitting timetable and stick to it. This effort also 
helps to ensure a more fair permitting process. Permit 
applicants deserve to get a decision in a timely manner, not to 
face an open-ended process fraught with uncertainty. Reducing 
uncertainty and expediting the permit review process are at the 
heart of why FAST-41 produces real, measurable benefits. 
Reducing uncertainty spurs investment, which helps more 
projects get access to capital and obtain it at a lower cost. 
Both uncertainty and slow progress reduce expected return on 
investment, taking many potentially profitable projects off the 
table due solely to the uncertainty created by the permitting 
process.
    FAST-41 goes a long way to curing this by significantly 
reducing uncertainty and speeding up the permitting process. 
Under FAST-41, project sponsors are better able to line up 
investment on the front end because they know that there will 
be a clear project timeline, and that even if unexpected delays 
do crop up, which they inevitably do on such large, complex 
projects, the Council will work hard to ensure that they are 
minimized and keep the process on schedule. The end result is 
that more projects get funded and at lower capital cost, and 
that helps grow the economy and create jobs.
    Getting more projects funded and moving forward is good for 
the economy, but it is also crucial for renewing our aging 
infrastructure. FAST-41 is a necessary element in modernizing 
America's infrastructure. To that end, the Chamber strongly 
supports the Federal Permitting Reform and Jobs Act. This bill 
takes necessary steps to strengthen FAST-41 that are needed for 
infrastructure renewal.
    First, it eliminates the 7-year sunset in FAST-41, ensuring 
that FAST-41 can continue to smooth and expedite permitting for 
major infrastructure modernization projects into the future.
    Second, it expands the range of eligible projects, 
including to more transportation infrastructure projects, which 
is also critical for modernizing our infrastructure.
    Finally, it sets a 2-year goal for permitting covered 
projects by requiring agencies to submit a plan to the Council 
that adheres to that timetable.
    The Chamber firmly believes there is no good reason why any 
Federal permit should ever take longer than 2 years to get a 
decision on.
    The Chamber has produced a four-point plan to modernize 
America's infrastructure, of which enhancing the usage and 
effectiveness of FAST-41 is a key component. We believe that 
the additional steps in the Federal Permitting Reform and Jobs 
Act are necessary to achieve that goal and should be included 
in any highway or infrastructure package considered in this 
Congress. Modernizing America's infrastructure is a truly 
bipartisan issue, and we urge you to take action on it this 
year.
    We look forward to working with this Committee to ensure 
that we have the necessary permitting reforms in place to 
modernize America's infrastructure. Thank you, and I look 
forward to your questions.
    Senator Portman. Thank you, Dr. Johnson.
    Mr. Garcia.

  TESTIMONY OF RAUL E. GARCIA,\1\ SENIOR LEGISLATIVE COUNSEL, 
                          EARTHJUSTICE

    Mr. Garcia. Thank you, Chairman Portman, Ranking Member 
Carper, and Members of the Committee for inviting me to testify 
today. My name is Raul Garcia, senior legislative counsel at 
Earthjustice.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Garcia appears in the Appendix on 
page 63.
---------------------------------------------------------------------------
    NEPA is a tool that gives communities a voice in the 
development of our national infrastructure. All stakeholders, 
including industry, labor unions, and, most importantly, front-
line American communities, can use NEPA to advance their 
priorities. NEPA stands for the common-sense principle that we 
all learn as children: Look both ways before you cross the 
street. That is what NEPA is. It allows us to examine the 
impacts of our actions to see the best way to build a project 
and not get run over.
    Moreover, contrary to what you have heard here today, NEPA 
is not the source of delay in infrastructure development. 
Countless studies by the Government Accountability Office (GAO) 
and the Congressional Research Service (CRS) all say that the 
primary causes of infrastructure delays are lack of funding and 
changes in project design.
    You have already heard today about some of the good things 
that FAST-41 brings to the table. The existence of the 
Permitting Council itself will increase coordination between 
agencies, project sponsors, and, when implemented properly, 
front-line communities. The Dashboard creates more 
transparency. We would encourage further investment into this 
tool so that the public knows the status of those projects in 
their communities.
    Nonetheless, the conversation here today and the ones 
happening within the Council itself are incomplete. The text of 
FAST-41 does, in fact, curtail environmental and public input 
protections. For example, provisions in FAST-41 arbitrarily 
shorten the public comment period for NEPA reviews. This is 
particularly problematic because we are dealing with the most 
complex projects in our country. Other provisions attack 
alternatives offered by the public as well as public access to 
the courts.
    To put things in perspective, though, we have to talk about 
the everyday person who has to take care of their family, who 
has to hold down one or more jobs, read the most complex 
environmental review documents in the country, and then come up 
with comments, all within 45 to 60 days. Oh, and if they cannot 
get that done, FAST-41 eliminates their right to stop any 
potentially illegal project in court, projects that can have 
significant impacts on the very families that they care for.
    Make no mistake. These provisions are an attack on 
communities, their health, safety, and their voice. They should 
be stripped away or allowed to sunset.
    Turning to the implementation of FAST-41, it is at best 
inadequate, delayed, and incomplete. The Council went almost 2 
years without a Chair when the President did not even need 
Senate confirmation in order to appoint somebody. Throughout 
this Administration, it has lacked funding and staff. In fact, 
instead of providing a Chair and resources for the Council, the 
Administration increased delays by creating a duplicate council 
within the Department of Commerce that subtracted importance 
and resources from the FAST-41 Council. Most importantly, 
although front-line communities will inevitably bear the 
impacts of FAST-41 projects, the Council is systematically 
excluding their voices from the process.
    Last Tuesday, the Council held its only stakeholder hearing 
so far. In panel after panel, we heard how the Council worked 
for projects sponsors, but there was almost no discussion of 
how community stakeholders could reach the Council. After 
attending, I can certainly understand why a project sponsor 
would want to partake in FAST-41, but never heard about how 
local communities could do the same.
    Overall, there is a particular lack of engagement with 
communities of color and low-income neighborhoods. Crucially, 
most projects with negative impacts are usually built within 
these communities. It is alarming to see that their input is 
excluded by the Council.
    On Tuesday, not one panel--not one--mentioned communities 
of color or low-income in their prepared remarks. To the best 
of my knowledge, not a single member of these communities spoke 
on the panels. The Council should be a tool for everyone to get 
information and guidance to navigate the permitting process. 
Profit-driven project sponsors should not be the only ones with 
access to this entity.
    To be clear, profits for project sponsors should never come 
at the expense of the health and safety of the communities our 
infrastructure needs to serve. Under its current form, we have 
to ask ourselves: Who does the implementation of FAST-41 
actually benefit?
    Taking all these factors into consideration, I have two 
asks from Earthjustice. Congress should strip the provisions 
that limit public input, judicial review, and alternative 
analysis from FAST-41. FAST-41 should be adequately and 
equitably implemented and its impact studied before Congress 
considers making it permanent.
    Thank you very much for your attention, and I look forward 
to your questions.
    Senator Portman. Thank you.
    We are going to literally make a run for the vote. We will 
be back as soon as we can, and I think it will be about 45 to 
50 minutes. I appreciate Senator Hawley being here. I think we 
have three votes. OK, so less time than that. I thought we had 
four. We will see you shortly, and I appreciate Senator Hawley 
being here, and I hope you will be able to come back to ask 
questions as well. I will prioritize you over me.
    Thank you all.
    [Recess.]
    Thank you all for your patience. I appreciate it. I thank 
Senator Carper for rushing back as well. We have some other 
colleagues who have told me they are going to try to get here 
for questions, and if they cannot get here, they would like to 
submit some questions for the record, which is, I hope, 
something you all will respond to.
    On FAST-41, the key is that we have a process that works, 
and I expressed my frustration, as some of you know, during 
that 21-month hiatus when we did not have an Executive 
Director. I am glad, again, we have somebody in place now. I am 
really impressed with the report and the fact that we are able 
to say that we have saved about $1 billion in avoided costs for 
FAST-41 projects. That is the kind of----
    Senator Carper. Real money.
    Senator Portman. Real money--results that we are looking 
for. We still have a process in place to make sure that more 
people know about this, that projects can apply. We need to get 
information out. We had a good stakeholders' meeting--Alex, 
when was that? The day before yesterday--the General Services 
Administration (GSA), and there were about 250 people there, 
including a lot of agency representatives. It was open to 
everybody. In other words, there were people there from 
environmental groups. Raul, I do not know if you were there or 
not. You were there? There were people there from business 
groups, there were people there from labor groups who were kind 
of just doing a check-in. I was delighted to go and just talk 
about what the intention was initially, what our legislative 
intent was, how this had been bipartisan from the start, and 
how we spent a couple years putting together what we thought 
was a fair way to try to streamline these major projects.
    I guess what I would first do is I would just like to ask 
you, Mr. Herrgott, since you are the Executive Director now in 
place, what progress have you made in the last year in helping 
projects move forward in the permitting process? How would you 
describe it?
    Mr. Herrgott. Thank you, Senator Portman. Just to be very 
clear, the world that existed prior to the Council was a 
legacy, paper-based, opaque process. It existed in the Dark 
Ages. In many cases, when a project was ready for a major 
environmental impact statement, the notice of intent is 
published in the Federal Register. It could be buried within 
10,000 pages. What the Council primarily does, and what I 
believe it does in its truest form, is increases engagement at 
all levels, because this Dashboard right next to us is the 
single point of contact that lists in real time, immediately, 
all facets and all dependencies within that project throughout 
the entire 2-, 3-, 4-year process so that the entire world can 
see.
    All you need to do is Google the project name, and the 
Permitting Dashboard will be called up, and then you can see 
anything that would potentially impact your community, as 
opposed to where we were before where you might have a NEPA 
public meeting that is at 11 o'clock on a Wednesday that was 
very difficult to get to and it was very difficult to discern 
what was actually going to happen to your community, to your 
State, to your county, or to your private property. Now we have 
an unprecedented level of transparency and accountability at 
all levels, not just on State/county officials but also on the 
Federal Government that makes it much easier to make informed 
decisions, because at the very base of NEPA it is to use all 
relevant information to bring it to the surface so that we can 
make informed decisions as policymakers while engaging all 
facets of the community. What that has done for us is ensure 
that these projects are inoculated from criticism that we did 
not engage fully at all levels. Because what we have seen, and 
what is borne out in facts and not theoretical criticisms, is 
that the projects that are on this Dashboard are of a nature in 
which I do not believe, at their conclusion, there will ever be 
any doubt that they fulfilled the entire spirit and the intent 
of what was intended, not only by NEPA but by the spirit of 
FAST-41. In no way are any of these projects curtailing any 
engagement at any level. In fact, it is the way we always 
should have been doing business, and I am proud to ensure that 
we continue to bring all folks in as ensuring that folks that 
come to the Council, that elect to be part of this Dashboard, 
are getting the kind of service from their government that they 
deserve.
    Senator Carper. Could I just say something?
    Senator Portman. Yes.
    Senator Carper. I will say this to Senator Lankford. I was 
kidding Alex earlier when he gave his opening statement. I said 
he crammed more words into a 5-minute statement than----
    Senator Lankford. He gets paid by the word.
    Senator Carper. That is what he said. I just want to say, 
Alex, that was great.
    Senator Portman. How many projects are currently on the 
Dashboard?
    Mr. Herrgott. Thank you. We have 18 completed projects. We 
have 17 active. We have about two planned. On the phone during 
your break, we were talking to two potential project sponsors 
that are looking to join the Council. Part of the reason we had 
the stakeholder engagement on Tuesday was to ensure that those 
that are actually putting capital at risk--mayors, Governors, 
and stakeholders--know that this service exists. At the end of 
the day, those are our customers.
    Senator Portman. How can the public access this Dashboard?
    Mr. Herrgott. All they need to do is go to 
permits.performance.gov and email us, [email protected].
    Senator Portman. Performance.gov.
    Mr. Herrgott. Permits.performance.gov. When we say the one-
stop shop, the user interface, as I always said, if an eighth 
grader cannot understand it, then it is too complicated. That 
is a systemic problem with most environmental documents. 
However, when you go to the Dashboard, anybody can readily 
understand whether a project is affecting them.
    Senator Portman. Which goes to the transparency, but also 
accessibility and inclusion.
    Senator Lankford is here, and I want to get to his 
questions, so I am going to stop here and come back and ask 
questions of everybody. Again, thank you for your patience. 
Senator Carper.
    Senator Carper. If Senator Lankford is ready to ask 
questions, I would be happy to yield to him.
    Senator Lankford. Clearly you are the senior Member, so 
feel free to ask your questions--I am going to stick around--
because I want to hear your questions, anyway.
    Senator Carper. Alright. Great.
    Alex, a first question for you. In Delaware, we have many 
people who spell their last name H-E-R-R-G-O-T. We pronounce 
their name ``ergo,'' like Monsieur Herrgott. How do you 
pronounce your name?
    Mr. Herrgott.``Her-got.''
    Senator Carper. Why? [Laughter.]
    Mr. Herrgott. I often say the second ``T'' is silent, but I 
guess that is what my father always called me.
    Senator Carper. OK.
    Mr. Herrgott. But a Jesuit priest in my upbringing used to 
call me ``Mister Got'' as that is the definition in German.
    Senator Carper. Fair enough. Everybody, thank you again for 
coming today and for your testimonies and for your patience 
with us. Mr. Herrgott, you mentioned to our staff this week, I 
think both Senator Portman's staff and mine, that the lack of 
resources and other constraints have limited the Council's 
ability to focus on more than maybe 10 or so projects that it 
has seen through the permitting process to date. Could you just 
take a minute and elaborate and talk a bit about the resources 
you believe that you and the Council need to ramp up the work 
you are actually able to do? There is a lot out there, as you 
know.
    Mr. Herrgott. Sure, and I think it is important to set the 
record straight. Much of the $1 billion in additional avoidance 
costs happened prior to me actually being appointed to the 
Council. In fact, although it has been----
    Senator Carper. Sure you want to give credit to somebody 
else?
    Mr. Herrgott. My team behind me--in fact, I have many 
detailees from other agencies----
    Senator Carper. Would the team and the detailees raise your 
hands? Alright, good.
    Mr. Herrgott. It is important to recognize that I have not 
cornered the market on good ideas, and that in order to solve 
many of these problems, you have to look through a 
practitioner's mind-set. These are the individuals out in the 
field that have actually done EISs, who have actually solved 
problems. That is why operationalizing the FAST-41, the 
virtues, and realigning everyone's definition of success is 
very much a behavioral and cultural issue out within the 
agencies, and you can do no better than having extremely 
skilled senior-level executives within the agencies out in the 
field touting what we actually are able to accomplish.
    But to be very clear, the Council has been working for 2 to 
2\1/2\ years, as was intended. Just because I was appointed 
does not mean that all of a sudden we started at a new 
beginning. In fact, what we are doing now is broadening our 
marketing to ensure that the entire world knows that this 
service is being offered. We have close to $175 billion----
    Senator Carper. Let me interrupt. I want to come back to my 
question.
    Mr. Herrgott. Yes.
    Senator Carper. I was not there, but my staff tells me that 
you mentioned to them that a lack of resources and other 
constraints have limited the Council's ability to focus on more 
than 10 or so projects that it has seen to date. I just wanted 
you to talk about the resources that have been provided and 
their adequacy or maybe inadequacy. Just focus on that, please.
    Mr. Herrgott. Sure. In recognition of----
    Senator Carper. Just do it slowly.
    Mr. Herrgott. In recognition of the imperative of the 
Council, in this year's appropriations bill Congress awarded us 
with $6 million, which more than quadruples our current funding 
level. With that, we have been able to acquire reimbursable 
agreements where we are actually paying agencies to bring on 
these detailees behind you. We expect, as the Council continues 
to grow, that we are going to have more than the nine projects 
that we have acquired voluntarily over the last year and a half 
and that we fully expect to be up at 15, 20, or 25 additional 
projects over the next year, year and a half. The $6 million, 
the resource constraints we had previously had now have been 
augmented so that we can address the challenges in the future.
    Senator Carper. Alright. Thank you.
    Mr. Garcia, thanks again for being here today and for your 
help. You have talked in the past--and here today as well--
about some of the provisions in FAST-41 that concern you and, I 
know, others and that you think the Congress ought to 
reconsider. You seem to agree, though, with most of this panel, 
however, that Mr. Herrgott's Council plays a positive role in 
the permitting process. What do you think that you and your 
organization would need to see to be able to say that the 
Council should be maybe extended or even made permanent?
    Mr. Garcia. Yes, I think that we have to decouple the 
provisions of Title 41. There are some that are extremely well 
thought out and are going to have very good impacts when 
implemented properly, and then others that do attack 
environmental protections, and that means attacking public 
health protections. But in terms of the Council itself, we 
think it is generally a great idea. We encourage conversations 
to happen early and often. I think that our ask is to make sure 
that these conversations are not just happening between project 
sponsors and agencies, but that communities on the ground are 
being met at their level. That means going out into the 
community and actually asking communities on the ground what is 
needed, what infrastructure actually makes sense in their own 
towns and their own back yards.
    Senator Carper. Thank you. This is an issue we want to 
explore with you further as we go along.
    The Federal Permitting Improvement Steering Council has 
been working with temporary leadership and a limited budget, 
Alex, until you were named the Executive Director a couple of 
months ago. Would you take another minute or so and just talk 
about the steps you have taken since you started in your 
current role to ramp up the Council's activities? You mentioned 
some of the human beings that are sitting right there behind 
you. Going forward, this is really a key question. How do you 
measure success? I love to ask that question: Well, how do you 
measure success? But just talk about that.
    Mr. Herrgott. That is a very good point, and I think what 
some of the project sponsors and others have mentioned is in 
the absence of the Council, in the absence of having a reliable 
Federal partner, much of which is not seen are the projects 
that would have not otherwise happened, go/no-go decisions, in 
particular, since many of these projects are based on the 
possibility of raising additional tax revenue or going to the 
debt and equity markets. In the absence of having the 
predictability provided by this Council, we would never have 
these projects. That is somewhat of a subjective positive, that 
is not necessarily encapsulated in the $1 billion in savings, 
and that is very important that we point out.
    I spent about 3 weeks traveling to about 40 cities in 25 
days--cities that I did not even know existed--on outreach out 
in the West, ensuring that I was going to field offices and 
engaging directly with the public, with tribes, and with low-
income and disparate populations to ensure that they understood 
that we existed and that we were a transparency tool, to help 
explain that this is an unprecedented level of accountability 
that the government has not traditionally had. I think as we 
continue to gear up and we continue now that we have 
demonstrable results at headquarters, as we push this out to 
the field, since many of these project managers are at field 
offices, those are the ones that have the fiduciary and 
regulatory responsibility to sign on the dotted line. Those are 
the ones that we need to get to to ensure that they are 
engaging at the very front end of the process with these 
coordinated project plans, which require full community 
engagement. The project sponsor, and all of the relevant 
Federal agencies on day one actually sit across from each 
other, not just passing emails back and forth but sit across 
from each other and establish their roles and responsibilities 
to solve problems. At the end of the day, I always say we are 
not trying to force yeses, we are just trying to force 
decisions. That is where I think, as we continue to gear up and 
build on the successes of the past, that our incubation of this 
methodology and the existence and the recognition that we exist 
and we are here to serve you is going to be essential to our 
continued success.
    Senator Carper. Maybe that could be part of our guidelines 
here. We are not trying to force yeses; we are trying to 
enforce decisions. That is good. Thank you. Thank you all.
    Senator Portman. Senator Lankford.

             OPENING STATEMENT OF SENATOR LANKFORD

    Senator Lankford. Mr. Chairman, thank you.
    I would say the number one thing I hear from most folks 
that deal with the Federal Government, whether that is a 
constituent calling me about an issue with VA or Social 
Security or their Federal retirement, or that is a business 
owner who is in the process of expansion, is: ``I just need an 
answer.''
    Mr. Herrgott. Yes.
    Senator Lankford. Almost every constituent call that we get 
on all of our casework is not about ``I need preference for one 
way or the other.'' It is just, ``I cannot get an answer.'' To 
talk about a process that has been created, that is being 
tested and evaluated, that hopefully we are learning from to 
try to develop a process to where the Federal Government gets 
to an answer is one of the things that my constituents in 
Oklahoma are screaming for. I am grateful to see that there is 
an ongoing experiment to see how this is working.
    Let me run a couple of questions past you, Alex. One is: 
What have you seen so far in going through this process 
multiple times that we need to revisit that is a barrier to 
collaboration, a barrier to getting to decisions, whatever that 
decision is, that if this is reauthorized we need to address in 
the next reauthorization?
    Mr. Herrgott. Thank you for that. As was mentioned earlier, 
the Council does sunset in 2022, 7 years after it was enabled 
by the FAST Act. We have already seen from project sponsors 
that have a 3-to 4-year horizon on delivering their projects, 
they are already concerned about whether or not the Council 
will be in existence 2 to 3 years from now. It is already 
having a cooling effect on the excitement of projects that are 
a year out.
    The other challenge is in our ability to coordinate at all 
levels of government. As you might imagine, there are more than 
30 Corps offices across the country, 50 different forest 
supervisors, all of which have a responsibility. It is going to 
be a challenge for us as we continue to enable and empower 
these chief environmental review and permitting officers 
(CERPOs), which are the certified environmental specialists 
that are one under the Deputy Cabinet Secretary which are a 
member of our Council, to ensure that they are able to drive 
the milestones and drive the timelines throughout their agency.
    I think in the past not many folks within the agencies 
understood what the Council was about. We are not an accusatory 
entity. We are a facilitator. Our power is in the power to 
convene. I think that now that we have the resources to fully 
enable the vision that we have, that as we continue to make our 
way as we take this to the field, it is going to be extremely 
important, because that is what the project sponsors are asking 
for. That is what they have determined gives us value for them 
to join.
    Senator Lankford. I am trying to read between the lines 
here. One of the things you are saying that may be a problem is 
we get another year or two down the road, the Council is not 
going to be as effective because more people are not going to 
use them because they do not know if they are going to outlive 
the Council. Action from Congress to decide----
    Mr. Herrgott. Yes.
    Senator Lankford [continuing]. If this is going to continue 
needs to be sooner rather than later.
    Mr. Herrgott. Yes.
    Senator Lankford. Which is a challenge for us to be able to 
get to decisions as well one way or the other, which also 
bleeds over into everything else. I think that is what Senator 
Carper was alluding to as well. That is one of the things that 
we need often, is a nudge to be able to get to that decision 
faster.
    Is this an area that should be expanded to other programs? 
Are folks coming to the Council saying, ``Why don't you do this 
for this?'' Is that coming up or not?
    Mr. Herrgott. It is, and we do have a process. We will be 
having a Council meeting, which, as I mentioned, is the Deputy 
Secretaries of all the Cabinet members. We will be sitting down 
in a meeting where we could potentially add new sectors. We 
have the ability to do that. However, I must point out that 
FAST-41 is not just about highways and bridges. We are 
broadband, we are hydroelectric, we are transmission lines. The 
full breadth of the projects that we have brought in, I do not 
think, has fully maximized or optimized what we currently are 
able to do. I think that we could do far more now that we have 
the resources.
    The question is not do we need to add new sectors, but what 
we need to do is convince project sponsors that we exist and 
that the water is warm and that they should join the Dashboard.
    Senator Lankford. Ms. Abram sitting next to you can 
definitely testify that it is not just about highways and 
bridges.
    Mr. Herrgott. Yes.
    Senator Lankford. It is solar power as well and electricity 
generation. Let me ask you an unfair question, but it is PSI so 
we get to ask unfair questions. Which agencies are not working 
with you well?
    Mr. Herrgott. I think all agencies have their challenges. I 
think the largest agency----
    Senator Lankford. Which agencies are not working with you 
well?
    Mr. Herrgott. They are all working with us well within the 
constraints of what I think they can do. However, I will point 
out that agencies like the Department of Interior and others 
that have a diffuse network of responsibilities and legal 
responsibilities spread across five different agencies within 
the overarching Interior Department, that is where much of the 
coordination and what we have seen has the greatest room for 
improvement.
    Senator Lankford. OK. What areas of concurrent permitting 
are working? What areas of concurrent permitting are not?
    Mr. Herrgott. That is a good question. I would have to 
think about that one. I think that what is happening is in many 

cases--to give you an example, Fish and Wildlife Service (FWS) 
has jurisdiction over trout. The Department of Commerce, the 
National Marine Fisheries, has jurisdiction over salmon. The 
fact that we would have two biological opinions paid for by 
taxpayers for two different analyses done by the same Ph.D. 
biologists on the same project at the same time sequentially by 
missing a spawning period, the fact that that has happened up 
until about 6 months ago. Now we are forcing a recognition of 
the importance of staging resources in a constrained 
environment within agencies to do things rationally and 
prudently to ensure that we are giving the best rate of return 
on the permitting dollar, and that is really what is not 
necessarily seen from the outside. We are finally getting 
agencies to look at their competencies and align them together 
so that we can make sure that the administrative record is as 
strong as possible while recognizing that all environmental 
statutes were met.
    Senator Lankford. Absolutely it is not a question on trying 
to be able to hit all those. Some of those concurrent things, 
though, build on one another. While we are trying to be able to 
work through concurrent permitting on that, that sounds great 
in theory. I guess my question is: Are you finding an area in 
practice where you really need this complete before this can be 
done, they really cannot be concurrent----
    Mr. Herrgott. Let me just take the Army Corps 404 process, 
which you know all too well. Even though on the Dashboard it 
used to show--or you would get a call saying, ``My 404 permit 
has not been issued.'' Now on the Dashboard, when you click on 
the 404, it will show that there is a responsibility and a 
requirement from the Environment Protection Agency (EPA), also 
from the U.S. Fish and Wildlife Service, and then also from a 
separate side of the Corps, on the 408, which is the 
engineering side. Before, you would just be blaming the Corps 
for not getting your 404. Now all the dependencies are out 
there for the world to see, and so that concurrence is now 
facilitated in a way where we can actually trouble-shoot where 
the problem is. Instead of having agencies pointing fingers at 
each other, we can actually fix the problem. That did not exist 
up until a year or two ago.
    Senator Lankford. That is a huge asset. I would tell you, 
one of the frustrations that I get from tribes consistently on 
any major project that they do, especially from the tribes, is 
that they are required to do a NEPA evaluation at the 
beginning. Great. They do it. Then it drags on through the 
process so long, it expires. They do another one, and then it 
drags on forever again. Then at the very end, they come back 
and say, ``We need you to do that one more time.''
    Mr. Herrgott. That is a good point, and I----
    Senator Lankford. They have never minded doing it. They 
hate doing it three times.
    Mr. Herrgott. Well, and I will point out that although we 
have talked about NEPA and the environmental impact statements, 
there are up to 50 other Federal permits and authorizations 
that could be required after your record of decision. 
Typically, agencies--it is a lead agency. Their job is done 
after the record of decision, and then you are walked off a 
cliff of uncertainty where you have to hire consultants and 
others to try and figure out where your disparate permits are 
in different stages and/or call your legislative members.
    That is not what we do. We have everything on the front end 
so that you can figure out where all those issues are on the 
back end so we can bring them to the front end and ensure an 
end-to-end solution. That is at the heart of what we are doing.
    Senator Lankford. Great. Thank you.
    Mr. Chairman, thank you.
    Senator Portman. Thank you. Really good questions. I 
mentioned earlier I got involved in this initially with a 
hydroelectric project on the Ohio River. Yes, we have moving 
water on the Ohio River, and it is great for hydro. It was a 
lock and distributor and manufacturer. And, 10 years to get 
through this process. At that point they wished they had never 
even entered into it. Incredible costs and delays. This is for 
a small municipality who was trying to figure out away to get 
in this case, cleaner energy.
    Ms. Abram, I thought that the question that was asked about 
the sunset was really important, and I want to ask you--I do 
not know what your answer is going to be. If you were to think 
about another project today, knowing that the current sunset 
expires in 2022, would you submit that project if it was a 
complicated project, say one of your big ones in Nevada or 
California, to the Council? Or would you be concerned that 2022 
is coming too quickly and that it might be a waste of time for 
you to engage with the Council?
    Ms. Abram. Thank you for your question. Yes, first of all, 
I would want to submit that for FAST-41 because I do think 
there is tremendous potential, and I think we are just getting 
started. If I were to submit a project and I knew it was going 
to sunset and I would be in the middle and could not take 
advantage of that, that would be problematic.
    I think it is really important to continue this. As I said, 
I think we are just getting going. I think it can bring 
tremendous benefit, particularly in just helping to facilitate 
even within the Department of Interior. I mentioned that in my 
comments between Federal, local, and State levels, just to work 
through issues. Keeping to schedule is one thing, but problems 
come up. Working through those and being able to do those 
quickly and efficiently and getting the help really just to 
facilitate that, I think getting engaged there--and it is, as 
you said, not to oversee or--it is really just to help everyone 
work better together and faster, and that is something I would 
like to see more of. I would like to see you let more companies 
besides us know about this. People have asked me questions, and 
they are very interested.
    Senator Portman. With regard to the sunset, maybe to you 
and the other members, what would it mean for a project sponsor 
being interested in using FAST-41 if there was not a 7-year 
sunset and instead there was permanence? What would that mean 
to a project sponsor like you? What would it mean to your 
building trades guys, Michael. Go ahead.
    Ms. Abram. Yes, for me what it would mean is that I would 
have more certainty that I would be able to get a project 
hopefully through the permitting process faster. I also want to 
emphasize that it is not to short-cut the important 
environmental review and also community engagement. I want to 
make that point because, for myself personally, for First Solar 
and the work I have done over this decade, I am really proud of 
our engagement. We engage early and often with communities, 
with environmental groups, and with tribes to really understand 
what the concerns are and to be able to--I have changed project 
footprints and reduced them and moved them to be able to 
account for that.
    I just wanted to make that point, but to have the ability--
--
    Senator Portman. FAST-41--sorry to interrupt, but FAST-41, 
our intent was to provide a more transparent way for precisely 
that kind of outreach, and the previous system for these major 
projects was much more opaque. Now you have the ability, as you 
can see on that Dashboard--well, you cannot see it because the 
writing is too small, but you could see if you got up close 
that, you have the ability now to access online through 
electronic means the progress and to have your input be 
recorded.
    Ms. Abram. That is right. I think that that helps a lot. 
The NEPA process itself requires that kind of engagement and 
output, and the FAST-41 just makes it easier, I think, to 
access it for folks. It is also important for project sponsors 
like First Solar to be actively engaged and to listen, and it 
makes our projects better.
    Senator Portman. Yes. Mr. Knisley, can you explain why it 
is important for building trades folks you work with to have 
some certainty in the permitting process?
    Mr. Knisley. Absolutely. Chairman Portman, when I look at 
the sunset provision, if this would happen, on a simpler note 
it looks like you just gave up, this Committee, the government, 
that you have put forth all these efforts and you have seen it 
has made efficiencies, transparencies, and taken project 
timelines. We look at the Byrd project, 10 years. When I first 
saw that--the information was given to me by AMP--I was 
astounded. Then you go to the Nexus Pipeline Project, less than 
3 years with that.
    To our members, they look at this, too, this would be 
devastating. It would be devastating to the communities. It 
would send a strong message, because in Ohio we have a lot of 
multinational corporations. I look at my hometown in Lima, 
Ohio, with Husky Energy from Canada. It sends the wrong message 
even to international corporations. You know that investment 
dollars are very fluid, and they can go anywhere. They look at 
what is the best place we want to do our business.
    I cannot emphasize enough that we need to keep this going, 
remove the sunset provision, and allow this to keep working. It 
has already shown you have a new Director. I just met Alex 
today, and he looks like a fine young man who is going to make 
strides with this thing. Just keep the process going. Do not 
give up on it.
    Senator Portman. Do you think he talks fast enough? 
[Laughter.]
    Mr. Knisley. Maybe. I do not know where Alex is from. In 
the Midwest, we are little slower. You could see by my 
comments. I went into overtime with that.
    Senator Portman. You did fine, Mike.
    Mr. Knisley. If I could, because in my comments I talked 
about the local communities, how devastating this is. I come 
from a small town, Lima, Ohio, about the same size as Senator 
Carper's town of Dover. In fact, I have an older brother that 
works for Christiana Care up in Wilmington, and his family is 
down in the Dover area. These towns, they just hook their 
wagons onto what the government is doing. When a press release 
comes out and it says--and I will use Shadyside, Ohio, the $10 
billion ethane cracker project, they look at this thing. This 
community is devastated not because of policies on coal, just 
cheap natural gas. They were a one-trick pony. If you did not 
mine it, if you did not haul it, if you did not work in the 
building trades, if you did not work at the power plants, there 
was no diversification like we have in Lima, Ohio, even 
Columbus where we reside now. They hang on every word that 
comes out of the government, every word that comes out of the 
press.
    I remember in Lima, Ohio, in 2005 we had an ethanol plant 
coming in, and it was called the ``Indiana bat,'' and it lived 
in one tree----
    Senator Carper. Indiana what?
    Mr. Knisley. Indiana bat, a bat that flies around. It lived 
in one tree on this site of land that they needed for this. 
Because of environmental regulations and different groups, that 
ethanol plant that was well over a $150 million investment to 
the Lima community almost stopped dead in its tracks. The 
community, I watched it just hang on this thing, on every word: 
Is it going to go? Is it not going to go? I know maybe I am a 
little bit emotional, but because I travel around the State of 
Ohio and we have areas that are doing very well, and then in 
southeastern Ohio, I am watching the population just leave. 
They hang on every word here. They watch what the government is 
doing. Can we do it better? Could we just get this thing going?
    I implore you, do not sunset this. Let the kid do his job, 
and just keep making it better.
    Mr. Herrgott. If I may point out, on the Nexus project 
alone, we saved 6 months and $300 million, and I think 
oftentimes what individuals forget, that is either borne by the 
taxpayer or by the ratepayer. It is not done in a vacuum. Those 
are real savings. Those avoidance costs bear out in the cost of 
electricity.
    Senator Portman. Yes. I want to quickly get back to the 
discussion about covered projects because you talked about some 
energy projects that are important, and you talked about the 
need to expand what the Council does.
    Here is what the legislation language says and what we 
intended: Authorization of Environmental Review by a Federal 
Agency: Construction of infrastructure for renewable or 
conventional 
energy production, electricity transmission, surface 
transportation--which is huge--aviation, ports and waterways, 
water resource projects--and there are a number of them; we 
talked about the flooding earlier, mitigating flooding--
broadband, huge potential there in the rural areas of Ohio and 
around the country. Pipelines we have talked about. 
Manufacturing, and there really are not any manufacturing 
projects right now as far as I know, Alex, on the Dashboard. 
And any other sector as determined by a majority vote of the 
Council.
    There is potential to do more. If we can show continued 
progress and if we can get rid of this arbitrary deadline, 
which is going to lead major projects to be hesitant to join, 
because in 2022 they might think this thing is going away, I 
think we can have even a bigger impact on more jobs. Yes, doing 
it safely, following the rules, and being sure that we were 
taking care of the environmental concerns, the safety concerns, 
but getting the United States in a position where we are global 
leader rather than one of the countries that is toward the back 
of the line in terms of providing a green light for good 
projects. Senator Carper.
    Senator Carper. Thank you.
    On Tuesday, Tuesday of this week, about 25 hours ago, I was 
sitting in the White House with the President and a bunch of my 
colleagues, and we were talking about infrastructure, and we 
were talking about what should it cover, how broad. The 
President, he is one person who goes in a lot of different 
directions, and some people say he has a little bit of a short 
attention span. Maybe we all do. One of the areas we went off 
into was the United States-Mexico-Canada Agreement (USMCA), the 
follow-on to The North American Free Trade Agreement (NAFTA), 
NAFTA 2.0. He mentioned that it had good environmental 
protections and labor provisions, which were appealing to both 
Democrats and Republicans, but we said it is not enough just to 
have the language, the boilerplate language in the agreement, 
but the enforceability was really important. We came back to it 
again and again. I think he got the point. That probably is a 
point that is germane here as well.
    The other thing I would say, I was a naval flight officer 
(NFO), went to Ohio State, Navy The Reserve Officers' Training 
Corps (ROTC) midshipman, and went off right at the height of 
the Vietnam War, graduated, ended up three tours in Southeast 
Asia, and when the war was winding down, came back to the 
United States and moved to Delaware. I used to think Delaware 
was a little town just north of Columbus. Later on I found out 
that it was a whole State and they might need a treasurer, 
Congressman, Governor, and Senator. I showed up and volunteered 
there.
    I went to business school at Delaware, and one of the 
courses I took in my last year in business school was we had to 
pick a product to manufacture, not literally, physically, but 
to come up with on a paper a way to manufacture a product. I 
chose solar panels in 1975. I think I was ahead of my time. I 
have been hugely interested in cost-effective energy but also 
energy that is good for our environment. I applaud the work 
that you are doing. You introduced in your testimony some 
interesting thoughts and approaches to these issues that we are 
considering, so thank you for that.
    Ms. Abram, as we prepared for this hearing, I think you 
indicated to our staffs that staff turnover and the lack of 
resources at the agencies, your company he works with have 
played a role in delaying the permitting process for your solar 
projects. You mentioned that a little bit earlier, but could 
you take a minute or two and talk about how staffing and 
resource constraints have held you back in the past and made 
the permitting process longer or maybe more burdensome? What 
can the Council do to help in this area?
    Ms. Abram. Yes, thank you for your question. It is really 
very important to have staffing and resources at the local 
level, in particular where you have people that are doing the 
archaeology or you have biologists reviewing things. As well as 
we may do on keeping on schedule, if we do not have the budget 
to staff adequately--we used to have these ``RECO,'' we call 
them--renewable energy offices, but just have energy offices 
that can be focused on renewables and make sure--or other types 
of energy, whatever it may be, but make sure they are focused 
and that they are staffed well so that they can expedite 
quickly. We can say, ``Hey, we are falling behind,'' or, ``We 
need to focus on this or that.'' But if we do not have the 
resources to do that, we will not be able to get there.
    In terms of turnover, what we saw with the Desert Quartzite 
Project is we were 2 years into the project, we were ready to 
get our draft out, and then there were changes at the local 
office. There was a while where I was not sure who was on point 
or to be responsible. Changes happen. I understand that. 
However, when those changes occurred, there was also a change 
in how they were approaching the draft, and people had 
different opinions. At that time, too, there was something 
called the ``Desert Renewable Energy Conservation Plan,'' which 
looked at where solar should go, but it also had conservation 
management actions.
    We were expressly exempt from that, and we felt that the 
draft we did complied with what we needed to. However, the BLM 
that came in disagreed with that. It took 2 years to work 
through that before we could come out with--they came out with 
a third alternative. We had an alternative, but they came out 
with a third one that was more----
    Senator Carper. A third what?
    Ms. Abram. A third project alternative. As part of the NEPA 
process, you have to have different alternatives to consider. 
That was why the delay was caused. I think if we had someone 
like Alex more involved or, someone that helped to facilitate 
some of those discussions, perhaps that could have been short-
cut.
    Senator Carper. OK, thanks. Anyone else on the panel, Dr. 
Johnson or anyone else want to comment on this same issue? If 
you do not want to, that is quite all right, but if you do, 
speak now or forever hold your peace.
    [No response.]
    OK. Mr. Garcia, Mr. Herrgott seems to be interested in 
having the public and some of the communities you have spoken 
about participate in this Council's activities. What advice 
would you give to him and to us as we try to bring low-income 
communities to the table and others into the process and give 
them a say as decisions are made on some of these major 
projects?
    Mr. Garcia. Thank you, Senator. We have to meet them where 
they are. We have to get to know them in their language. It was 
not until recently that the Citizens Guide for NEPA was 
translated into Spanish, for example. If we are going to have a 
project that is----
    Senator Carper. Would that be from Greek? No, I am just 
kidding.
    Mr. Garcia. Right. That document only exists right now in 
English and Spanish, so how many other languages are being 
excluded from that publicly available document that should be 
available for everybody in the country to understand and 
partake in this process.
    It also means being culturally sensitive, right? The idea 
of having a hearing in the middle of a work day sometimes 
simply does not work for people who have to go to work and they 
have to have that job. Making sure that that happens also after 
hours, that the agency is able to talk and that there are 
avenues for the public to call them up. Just like any project 
sponsors can call up two of the staffers in the Council, making 
sure that the public can call up the Council. That requires, 
for example, in terms of resources, having staff there to take 
those calls and having staff that is culturally competent to 
answer those calls and be able to speak in the language of the 
communities on the ground themselves.
    That also lends certainty and it lends buy-in for a project 
to have support and build consensus so that it is not an 
antagonistic relationship. We heard from the panel. The goal is 
not to curtail environmental and human health protections. Then 
let us strip that out. Let us strip that out. Let us let the 
Council do its work. Let us fund it. Let us see what it 
actually does full-fledged and funded, and then let us see what 
the actual impacts on the ground are going to be. Then we are 
happy to have that conversation.
    Senator Carper. Good. Thank you. That was very helpful.
    Let me just say to you, to Michael, do people ever 
mispronounce your last name?
    Mr. Knisley. ``Nice-lee.''
    Senator Carper. Knisley. Do they mispronounce it nicely?
    Mr. Knisley. For the last 58 years they have, Senator. But 
I am OK with that. [Laughter.]
    Senator Carper. Alex? Monsieur Herrgott?
    Mr. Herrgott. Actually, we would like to point out----
    Senator Carper. Go ahead.
    Mr. Herrgott. First of all, we have an open door to figure 
out how to get this right, to ensure that all affected 
individuals are adequately consulted.
    I will also point out part of the statute and a more 
accurate reading is that these extensions of comment periods 
are extended on a routine basis, and even in the statute, there 
is an ``or.'' There is not a mandatory restriction on the 
comment period. It says, ``For good cause, at any point a lead 
agency, in concurrence with other agencies, may extend the 
comment period.'' However, I will point out the fact pattern 
with the projects that have been on the Council is that this 
has not been an issue; and should it become an issue, we would 
be more than willing to change it. It is not an attempt to 
attack alternatives or to restrict a process. We believe that 
with this transparency that we are night and day from where we 
were 3 years ago on engaging the public. However, we are trying 
to bring all vested interests along in this process. This is 
not an opportunity to strong-arm to deliver projects.
    Keep in mind that more than half of these projects on the 
Dashboard are renewable energy, and that is something where we 
are agnostic. We are politically agnostic, and we are just 
trying to ensure that the process--not the policy because we do 
not make policy--the process is robust. In doing so, we have to 
bring everyone along, which is why the door is always open to 
take criticism and to change the process and to advocate for 
what makes the most sense for everybody.
    Senator Carper. Our colleagues and our staffs have heard me 
say many times, ``Find out what works, do more of that.'' The 
other thing is I would just urge you and maybe Mr. Garcia to 
exchange contact information, if you have not done that 
already, so that this dialogue can continue. I think that might 
be real productive for everybody. Thank you.
    Mr. Chairman, it was a good hearing. I want to thank our 
staffs for pulling these folks together. Now that I have 
learned how to pronounce their names, the next time I see they 
will be more familiar. Thank you very much.
    Senator Portman. I have a couple more questions regarding 
some of the issues that were raised. I think Senator Carper may 
have to leave us. Do you have any closing comments you would 
like to make?
    Senator Carper. Believe it or not, we have a Bible study 
that meets once a week at this time. It is Democrats and 
Republicans. We meet with the Senate Chaplain, Barry Black, a 
retired Navy admiral who is now the Senate Chaplain. Usually 
seven or eight of us show up, like we need the most help. But 
we are going to pray for wisdom, and so maybe some of the 
wisdom has been imparted to us by all of you. This is something 
I will take with me and pray on it. Thank you very much, all of 
you.
    Senator Portman. Thank you for including us in your prayers 
this afternoon.
    Senator Carper. I will also say to Alex, my wife has said 
to me for years, ``Talk slower. Talk slower.'' I try to talk 
slower now, and I have gotten elected 14 times now that I talk 
slower. But you answered the questions great.
    Mr. Herrgott. I will try.
    Senator Portman. One of the issues that has been raised 
today is the statute of limitations, and we mentioned earlier, 
when I was talking about some of the projects that came to me, 
that got me started on this whole exercise, was people saying, 
``We go through the NEPA process. It takes forever. We finally 
get our permits.'' By the way, for some environmental projects 
or energy projects, prior to the Council, for major projects, 
and continuing for those that are not part of this process, it 
is permit after permit, so it is seriatim. In other words, it 
is not concurrent. I remember one person coming to me from Ohio 
had an energy project and said there are now 35 different 
Federal permits that we can count that we have to go through. 
As was said by Senator Lankford, sometimes you get to the end 
of the process, and now it is time to go back through the 
process again because you had a change in leadership or you 
have just expired your existing permit.
    Obviously, there is a need for this. I do not know how 
anybody could argue that that system is not absurd. But they 
also said the statute of limitations issue, if you have a 6-
year statute of limitations in bringing a lawsuit, in many 
cases the project does not get going when you get the permit 
because you have to worry about a lawsuit.
    Dr. Johnson, you have not had the opportunity to answer a 
question today, so maybe I will ask you this. It may not be 
your expertise, and maybe others can chime in. But have you 
heard that, that because of the statute of limitations, which 
we went from 6 years down to 2 years in the statute, so that is 
what it is for these projects. We initially wanted 180 days. I 
mentioned that under the bipartisan MAP-21, it is 180 days, 
which is for a sort of traditional transportation project that 
was done in the Obama Administration. But here we went down to 
2 years because working with some of the environmental groups, 
including NRDC, they wanted a longer period. But it is not 6 
years, which is a big improvement.
    Can you speak to that, Dr. Johnson, why that is important?
    Mr. Johnson. Absolutely. Thank you, Senator. It is not my 
area of expertise, as you mentioned, but I will give an opinion 
on it nevertheless. We have heard a lot about the statute of 
limitations, and certainly as you said, it was one of the 
biggest complaints that we heard from project sponsors and just 
individuals involved when we first started looking into this 
issue.
    My fellow panelist earlier mentioned that GAO found that 
access to capital or lack of funding was the primary impediment 
to getting projects done. What he failed to say was that one of 
the primary reasons that people could not get their projects 
sponsored was because of the permitting process, and the 
incessant drag-on of the potential for lawsuits was a part of 
that. We were looking at projects that were delayed 10 years, 
and when you think of it, 6-year statute of limitations, that 
is a substantial part of that potential delay, and adding to 
that the sequential nature that you have noted about how 
permits sometimes keep dragging on in the approval process. You 
really run into a problem where you cannot get a permit in a 
reasonable amount of time that allows you to also attract 
funding. No one wants to fund a project--whether it is a civic 
project or whether it is an energy project or whether it is an 
environmental renewal project, no one wants to fund a project 
that they are not going to see any kind of payback on for an 
undefined and potentially very long period of time.
    The statute of limitations plays specifically to that issue 
and shortens the amount of time. It gives certainty. Having a 
deadline that is not too far off in the future is certainly 
important. Frankly, yes, I think we would like to see the 
matching statute of limitations of 180 days to the MAP-21 
process. But 2 years is better than 6 years.
    Senator Portman. Do you have any examples of that?
    Mr. Herrgott. I would just like to point out that NEPA and 
the associated regulations were written in a time before the 
Internet, and the access to the information was inhibited by 
the access to understanding where these complicated 
environmental documents were. The recognition in 2012 when I 
was helping at that time as a staffer to craft that language 
and then again in 2015 while working on the Environment and 
Public Works Committee, in concert with Senator Boxer, who was 
the Ranking Member at that time, was that there needed to be 
some sort of reasonability, and that at some point you should 
not have to wait 6 years for the clock to expire to put a 
shovel in the ground, and that at some point there has to be an 
end to the process to give certainty. Two years was what was 
agreed upon by the trial bar, the environmental community, and 
all those parties engaged. To date, we have seen that there has 
been no issue in which that has prevented any additional 
challenge, whether it be in the courts or otherwise, for 
appropriate risk.
    Senator Portman. Mr. Garcia, do you want to comment on 
that? Because earlier you talked about the statute of 
limitations.
    Mr. Garcia. Yes, absolutely. This is my area of expertise, 
and I can tell you that actually having a limitation on the 
ability to sue can actually backfire and cause more delays, 
because instead of plaintiffs waiting to see whether they 
actually have a claim or not against a project, they would sue 
trying to get their foot in the door in court before the 
statute of limitations runs out. That could actually backfire 
on a practical level.
    But on a more pragmatic level, we are talking about 
challenges to potentially illegal projects. Those are projects 
that could harm the community and that are done in violation of 
the law. I think we should all agree that illegal projects 
should not move forward, and that is what the judicial review 
process is meant to address.
    I also have to say that when we talk about certainty, we 
have to provide certainty not just for project sponsors. We 
need to provide certainty for the communities on the ground. I 
would say the communities on the ground would really care about 
certainty that a pipeline being built was properly analyzed and 
that it is not going to leak or explode in their back yards.
    When we talk about certainty, I think that we also have to 
include the public here. I understand the challenges that 
project sponsors have, and I can say that if working with the 
community--and I think the solar projects are a good example--
that if you work with the community, you actually reduce the 
risk of any litigation because you are building consensus. 
Again, regarding legal challenges, there is no other way to 
stop an illegal project than to go to court. If we take that 
away, we are essentially taking away the right of communities 
on the ground to do that.
    Senator Portman. Just to be clear, nobody is taking it 
away. The question is why you apparently do not support the 
bipartisan agreement in the Obama Administration with Senator 
Boxer and others for 150 days for MAP-21. We are just talking 
about 2 years, after going through the whole process where 
every consideration you just talked about is essentially worked 
out in advance. I mean, that is the idea. That is why you have 
to go through the NEPA process. But, I would hope you would 
support us for 2 years because that was the compromise we made 
with the environmental community at the outset, not 150 days, 
which is what we had in our legislation, our bipartisan 
legislation, but 2 years, which is certainly plenty of time, 
and no one should be filing a preemptive lawsuit to ensure that 
they cannot do something in 2 years. That is after the whole 
permitting process is finished.
    Anyway, thank you all, every one of you, for your testimony 
today. I really appreciate it. I think this is an opportunity 
for us to review where we are, but also talk about how to 
ensure we can get rid of the sunset, because if we do not, I 
fear that very soon you are going to see a lot of major 
projects just saying, ``Why would I enter into this thing when 
I know that it is going to end in 2022?'' The way Congress 
operates, it is hard to give them much certainty unless we show 
there is a bipartisan interest in extending it. One reason I 
wanted to have this hearing was the opportunity to talk about 
that.
    I want to thank my colleagues who showed up. Some of them 
told me that they wanted to ask questions, so some may submit 
some questions for the record to each of the five of you.
    I want to really thank the witnesses for being here. I 
thought it was very helpful. I am encouraged. I am encouraged 
by the progress. As I said when I spoke to the group on 
Tuesday, I am encouraged that it is starting to work precisely 
the way we had talked about in terms of more input, more 
transparency, but getting to a decision yes or no, and I think 
we can make many more strides. I talked about the broad range 
of projects that are eligible. And, the Council can add even 
more with a majority vote, but the broad range that are not 
currently making application to become part of that Dashboard, 
so I think there is a great opportunity. I am glad that you, 
Mr. Herrgott, are out there doing the awareness raising as 
well, just to let people know what is available here. I am glad 
that you are doing the outreach, too, because I agree with what 
Mr. Garcia said, you are going to avoid a lot of problems by 
doing the outreach early on and ensuring that you do not have 
lawsuits filed or have other permitting problems.
    There is a lot more we can do to make the process more 
efficient and more effective. I look to this report from the 
World Bank. The United States is still ranked 26th in the world 
in dealing with construction projects. That is a lot of 
countries that are developing countries that are ahead of us, 
and most developed countries, because they have figured out it 
makes more sense for them to figure out a cost-effective, 
efficient way to get to a decision because that way they will 
get more capital into infrastructure and construction permits 
and construction projects.
    There is more to do. There remains unnecessary red tape. 
There remains bureaucracy. There remains duplication. There 
remain delays. Some of them lead to the projects never being 
started in the first place, so we do not even know the impact 
of that. Others lead to more costs in those projects, which is 
leading to taxpayer costs, project costs, fewer jobs, and we 
are just looking for a way to green-light projects in a 
responsible way and one that I think the Council has already 
made a lot of progress toward.
    The Subcommittee is going to continue to be interested in 
this, seek ways to support the efforts of the Council. You have 
to let us know how we can be helpful.
    The hearing record will remain open for 15 days, so if you 
have any additional input, we are happy to get it from you. 
With that, thank you for your patience today.
    This hearing is adjourned.
    [Whereupon, at 12:36 p.m., the Subcommittee was adjourned.]

                            A P P E N D I X

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