[House Hearing, 118 Congress]
[From the U.S. Government Publishing Office]


            EXAMINING SYSTEMIC GOVERNMENT OVERREACH AT CEQ

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

                           OVERSIGHT HEARING

                               BEFORE THE

              SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS

                                 OF THE

                     COMMITTEE ON NATURAL RESOURCES
                     U.S. HOUSE OF REPRESENTATIVES

                    ONE HUNDRED EIGHTEENTH CONGRESS

                             FIRST SESSION
                               __________

                      Thursday, September 14, 2023
                               __________

                           Serial No. 118-59
                               __________

       Printed for the use of the Committee on Natural Resources
       
       
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        Available via the World Wide Web: http://www.govinfo.gov
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                                   __________

                    U.S. GOVERNMENT PUBLISHING OFFICE
                    
53-402 PDF                    WASHINGTON : 2024         
      

                     COMMITTEE ON NATURAL RESOURCES

                     BRUCE WESTERMAN, AR, Chairman
                    DOUG LAMBORN, CO, Vice Chairman
                  RAUL M. GRIJALVA, AZ, Ranking Member

Doug Lamborn, CO		Grace F. Napolitano, CA
Robert J. Wittman, VA		Gregorio Kilili Camacho Sablan, CNMI
Tom McClintock, CA		Jared Huffman, CA
Paul Gosar, AZ			Ruben Gallego, AZ
Garret Graves, LA		Joe Neguse, CO
Aumua Amata C. Radewagen, AS	Mike Levin, CA
Doug LaMalfa, CA		Katie Porter, CA
Daniel Webster, FL		Teresa Leger Fernandez, NM
Jenniffer Gonzalez-Colon, PR	Melanie A. Stansbury, NM
Russ Fulcher, ID		Mary Sattler Peltola, AK
Pete Stauber, MN		Alexandria Ocasio-Cortez, NY
John R. Curtis, UT		Kevin Mullin, CA
Tom Tiffany, WI			Val T. Hoyle, OR
Jerry Carl, AL			Sydney Kamlager-Dove, CA
Matt Rosendale, MT		Seth Magaziner, RI
Lauren Boebert, CO		Nydia M. Velazquez, NY
Cliff Bentz, OR			Ed Case, HI
Jen Kiggans, VA			Debbie Dingell, MI
Jim Moylan, GU			Susie Lee, NV
Wesley P. Hunt, TX
Mike Collins, GA
Anna Paulina Luna, FL
John Duarte, CA
Harriet M. Hageman, WY

                    Vivian Moeglein, Staff Director
                      Tom Connally, Chief Counsel
                 Lora Snyder, Democratic Staff Director
                   http://naturalresources.house.gov
                                 ------                                

              SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS

                        PAUL GOSAR, AZ, Chairman
                      MIKE COLLINS, GA, Vice Chair
                MELANIE A. STANSBURY, NM, Ranking Member

Matt Rosendale, MT                   Ed Case, HI
Wesley P. Hunt, TX                   Ruben Gallego, AZ
Mike Collins, GA                     Susie Lee, NV
Anna Paulina Luna, FL                Raul M. Grijalva, AZ, ex officio
Bruce Westerman, AR, ex officio
                                 ------                                

                                CONTENTS

                               ----------                              
                                                                   Page

Hearing held on Thursday, September 14, 2023.....................     1

Statement of Members:

    Gosar, Hon. Paul, a Representative in Congress from the State 
      of Arizona.................................................     1
    Stansbury, Hon. Melanie A., a Representative in Congress from 
      the State of New Mexico....................................     3
    Westerman, Hon. Bruce, a Representative in Congress from the 
      State of Arkansas..........................................     4

Statement of Witnesses:

    Loyola, Mario, Research Assistant Professor, Environmental 
      Law, Florida International University, Miami, Florida......     6
        Prepared statement of....................................     8
    Heaps, Jill Witkowski, Senior Attorney, Earthjustice, New 
      York, New York.............................................    13
        Prepared statement of....................................    15
        Questions submitted for the record.......................    21
    Simms, Scott, CEO and Executive Director, Public Power 
      Council, Portland, Oregon..................................    26
        Prepared statement of....................................    28
    Lewis, Marlo, Senior Fellow, Competitive Enterprise 
      Institute, Washington, DC..................................    31
        Prepared statement of....................................    32

Additional Materials Submitted for the Record:

    Submissions for the Record by Representative Stansbury

        Letters from various organizations in support of CEQ's 
          NEPA Phase 2 Rule......................................    58
                                     


 
           OVERSIGHT HEARING ON EXAMINING SYSTEMIC GOVERNMENT
                            OVERREACH AT CEQ

                              ----------                              


                      Thursday, September 14, 2023

                     U.S. House of Representatives

              Subcommittee on Oversight and Investigations

                     Committee on Natural Resources

                             Washington, DC

                              ----------                              

    The Subcommittee met, pursuant to notice, at 10:10 a.m. in 
Room 1324, Longworth House Office Building, Hon. Paul Gosar 
[Chairman of the Subcommittee] presiding.

    Present: Representatives Gosar, Rosendale, Hunt, Collins, 
Westerman; and Stansbury.
    Also present: Representatives Bentz, Fulcher, Graves, 
Newhouse; and Huffman.

    Dr. Gosar. The Subcommittee on Oversight and Investigations 
will come to order.
    Without objection, the Chair is authorized to declare a 
recess of the Subcommittee at any time.
    The Subcommittee is meeting today to hear testimony on 
examining systemic government overreach at CEQ.
    I ask unanimous consent that all Members testifying today 
will be allowed to sit with the Subcommittee, give their 
testimony, and participate in the hearing from the dais. First, 
the gentleman from Oregon, Mr. Bentz; the gentleman from 
Louisiana, Mr. Graves; the gentleman here at the dais already 
from California, Mr. Huffman; the gentleman from Idaho, Mr. 
Fulcher; the gentlewoman from Washington, Mrs. McMorris 
Rodgers; and the gentleman from Washington, Mr. Newhouse.
    Without objection, so ordered.
    Under Committee Rule 4(f), any oral opening statements at 
the hearings are limited to the Chairman and the Ranking 
Minority Member. I therefore ask unanimous consent that all 
other Members' opening statements be part of the hearing record 
if they are submitted in accordance with Committee Rule 3(o).
    Without objection, so ordered.
    I am now going to recognize myself for my opening 
statement.

STATEMENT OF THE HON. PAUL GOSAR, A REPRESENTATIVE IN CONGRESS 
                   FROM THE STATE OF ARIZONA

    Dr. Gosar. Thank you, Chairman Westerman, for joining us 
today, and thank you also, Ranking Member Stansbury, for your 
leadership on the Subcommittee. And thank all of the witnesses 
for attending today.
    Sadly, CEQ Chair Brenda Mallory refused to join us here 
today, and she refused to provide the opportunity for someone 
on her staff to testify on her behalf, which, quite honestly, 
could have been a great opportunity. In the words of Supreme 
Court Justice Louis D. Brandeis, ``Sunlight is said to be the 
best of disinfectants.'' But as we have seen from the Biden 
administration time and time again, they would prefer to 
operate in darkness, insisting that Congress and the American 
people take their word for it.
    President Biden has repeatedly insisted that his actions 
and the actions of his family are above reproach. Yet, over the 
last several years, and largely thanks to the work of 
congressional Republicans, we now know nothing can be further 
from the truth. Nonetheless, the personal arrogance and lack of 
accountability from President Biden has infected his entire 
administration.
    CEQ was once a small office charged with ensuring 
compliance for the limited number of agency actions that 
triggered the National Environmental Protection Act of 1969, or 
NEPA. CEQ has a targeted role with a budget to match. Today, 
President Biden has transformed CEQ's role from overseeing 
NEPA's compliance to an agency with both a bloated budget and 
role in government policy-making. It is an entity charged with 
implementing his radical eco-agenda, remaking Federal agencies 
as vehicles of social change, and leading the war on domestic 
energy production.
    As we will hear from some of our witnesses today, CEQ's 
role in implementing Executive Orders and rulemaking vastly 
exceeds the statutory role and prescribed authority. Examples 
of this include: (1) refusing to implement bipartisan NEPA 
reforms from the Fiscal Responsibility Act on a timely basis; 
(2) improperly and arguably illegally imposing greenhouse gas 
reduction requirements that deter investment in American energy 
independence; (3) egregious favoritism toward radical eco-
activists pushing to breach the Lower Snake River Dams; and (4) 
selecting an internal organization funded by one of the largest 
left-leaning dark money groups as the sole arbiter of emission 
reduction mandates for the Federal contractors.
    On what now has become a routine matter, CEQ is ignoring 
the will of Congress, whether it be refusing to provide a 
witness for a hearing or to provide timely answers to routine 
congressional inquiries. No other Federal agency has allowed 
this lack of accountability, and this behavior is unacceptable. 
It is Congress' responsibility to assess whether Federal 
agencies and departments are operating in effective, efficient, 
and economical manners, and to gather information that may 
inform legislation.
    Instead, before he was President, Democrat Woodrow Wilson 
emphasized that Congress' oversight and informing function 
should be preferred even to the lawmaking function. Woodrow 
Wilson also added that unless Congress conducts oversight, the 
country must remain in an embarrassing, crippling ignorance of 
the very affairs which it is the most important that it should 
understand and direct.
    Time and time again, it appears that CEQ hopes that the 
public remains in crippling ignorance of its work. Well, I have 
news for Chair Mallory and President Biden. Not on my watch. We 
will continue to hold CEQ accountable, and we will continue to 
seek answers on the very questions CEQ refuses to answer. We 
will ultimately use every tool at our disposal to obtain the 
information we need from CEQ, including on rulemaking, on NEPA 
reforms, on CEQ's relationships with radical eco-activist 
organizations, and on CEQ's potential abuse of Federal 
solicitation process to curry favor with dark money groups 
supporting Democrats. Despite the best efforts from Chair 
Mallory and President Biden, CEQ will not escape the watchful 
eye of Congress' oversight.
    Thank you to all of you, and I look forward to the hearing.
    I now recognize the Ranking Member Stansbury for her 
opening statement.

STATEMENT OF THE HON. MELANIE A. STANSBURY, A REPRESENTATIVE IN 
             CONGRESS FROM THE STATE OF NEW MEXICO

    Ms. Stansbury. Good morning, and I want to just start by 
welcoming all of our witnesses who are here to testify today. 
And thank you to our Chair and to all of our colleagues who are 
here today.
    It is interesting to always have these debates, and to 
discuss differing views of the world and how we see what is 
happening in the world. And I think today really paints a stark 
picture in the differences in how we view what is occurring on 
our planet and in our country right now.
    In the 1970s, in the late 1960s and 1970s, as they dawned, 
our country had come to understand some of the damage that it 
had inflicted upon itself. The Cuyahoga River was on fire. 
Iconic rivers across the West were being dammed and causing 
catastrophic results for communities that had relied on them 
since time immemorial, tribal lands were being physically 
damaged. Mines and other projects were being permitted in 
proximity to vulnerable communities, and our food, water, and 
air, which we thought, of course, would always be there to 
sustain us, were in jeopardy.
    And because of this, our nation came together and, in 1969, 
passed one of the most fundamental bedrock environmental laws. 
The National Environmental Policy Act was passed and signed 
into law by Republican President Nixon on January 1, 1970, and 
it was dubbed the Magna Carta of Environmental Laws as a direct 
response to the environmental crises of the 1960s and 1970s 
that was occurring.
    Now, indeed, our planet, our country, our communities are 
facing another crisis as we sit here today, and stands at 
another global precipice. Last summer was the warmest summer in 
recorded history. We are seeing tropical storms and hurricanes 
stronger than ever, with flooding that is occurring all across 
the planet, including in Libya, where over 5,000 people were 
killed this last week and another 10,000 are missing. We are 
seeing wildfires that are the worst wildfires ever in the 
history of our planet that can be seen from space. And we are 
seeing some of the biggest impacts of drought that we have ever 
seen, including in my home state of New Mexico, where our 
river, the Rio Grande, ran dry again this past week.
    These are exactly the kinds of crises that Republicans and 
Democrats had in mind when they came together and passed NEPA 
on a bipartisan basis, because they understood that if we did 
not empower our communities and stop the damage that we were 
doing to our environment, that we could cause catastrophic 
impacts for our communities. And that is the purpose for why we 
passed NEPA.
    But yet, here we are once again in this Committee, holding 
another oversight hearing on the implementation of this 
critical bedrock legislation at a time that our country is 
standing at a precipice. And I will remind folks that this is 
the third hearing that we have had on this specific topic.
    But it is important to note that the President and 
Democrats last Congress rose to the occasion. We are working 
every single day to try to address this crisis. Last year, we 
passed the largest and most significant legislation ever in the 
history of the planet to address climate change with the 
passage of the Inflation Reduction Act. Across the country, the 
President, his cabinet, and Democrats are rolling out projects, 
including in my home state in New Mexico, where we just started 
and dug ground and cut ribbon on three new projects, including 
one of the largest wind turbine factories in the United States, 
the first solar manufacturer to repatriate to the United States 
since the passage of the Inflation Reduction Act, and we cut 
ribbon on the largest wind project in North America in the 
Western Hemisphere just 2 weeks ago.
    We are at the forefront of the clean energy revolution, and 
understand that if we do not take urgent action now it will 
have catastrophic and irrevocable impacts for our communities. 
And that is also why the Chair of CEQ is not here today, 
because she is out on the ground doing the work to ensure that 
we prevent a catastrophic crisis for our planet and our 
communities. And that is the work that we have been tasked with 
as this body, as representatives of our communities, and as 
people who serve this great nation.
    So, I look forward to the discussion today. It is an 
important discussion. It is a discussion about the role of 
government in serving our communities in times of crisis, 
helping our communities get through what is possibly one of the 
most difficult chapters in American history, and addressing the 
many faceted environmental crises that we are facing right now 
in this country and on this planet.
    Thank you, and I yield back.

    Dr. Gosar. Thank you, Ranking Member Stansbury.
    I now recognize the Chairman of the Full Committee on 
Natural Resources, Mr. Bruce Westerman, for a statement.

  STATEMENT OF THE HON. BRUCE WESTERMAN, A REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF ARKANSAS

    Mr. Westerman. Thank you, Chairman Gosar and Ranking Member 
Stansbury, for holding this important hearing today, and thank 
you to the witnesses for being here.
    I do want to point out we have an empty seat in front of us 
again. The Council on Environmental Quality is not exempt, 
regardless of what they may think, from congressional 
oversight. I want to make the record clear that we not only 
invited Chair Mallory with plenty of notice, but also allowed 
her to provide a designee for this hearing. And in response, 
her staff stated and I quote, ``We do not have a designee for 
Chair Mallory that will be available to testify on September 
14.'' So, not only did she not show up, she couldn't find 
anybody in the office over there to come by and visit with the 
Committee that has jurisdiction over her agency's existence. 
And to me, that is just quite simply unacceptable.
    Moreover, in e-mail exchanges with my staff, CEQ staff 
questioned the precedent of congressional oversight. The 
Supreme Court has on multiple occasions clarified the power of 
Congress to conduct oversight and investigations. Apparently, 
the Chair thinks this doesn't apply to her tenure at CEQ.
    And since her time as Chair of CEQ, Chair Mallory has now 
twice refused to testify in our Committee, willfully ignored 
questions from Members of Congress during the hearing. She 
avoided the questions during the one hearing that she did show 
up to, and missed deadlines for regular congressional inquiries 
and questions for the record. And my staff informed me that 
late last night they got a data dump of questions that were 
answered from our last congressional hearing that had gone 
unanswered up until this point.
    So, while ignoring routine oversight, the Chair and her 
employees at CEQ are continuing to do I don't know what, 
because the purpose of oversight is to find out what they are 
doing, why they are doing it, and how they are being stewards 
of the taxpayer dollars. And are they following the laws that 
Congress passed?
    Again, I am not sure what they are doing with their time 
and their massive overinflated budget that is nearly 70 times 
their authorized amount. But it doesn't appear to be in 
enforcing a bipartisan law that their boss, President Biden, 
signed into law. And they were 100 days past the implementation 
of the Fiscal Responsibility Act that passed with a majority of 
votes in both the House and the Senate on a bipartisan measure, 
and was signed into law by President Biden.
    And the feedback I am getting from the outside world is 
that not one bit of that policy is being implemented. So, I 
think that is a reasonable request to have the Chair of CEQ to 
come to this Committee and answer questions on how they are 
implementing the law that, again, was a bipartisan law.
    And from 2019 to 2023, CEQ's baseline budget more than 
doubled, and they received an additional $62.5 million from the 
Inflation Reduction Act to support environmental and climate 
data collection. In short, the Administration is funneling 
millions of taxpayer dollars to an agency whose, as best I can 
tell, primary goal is ``environmental justice above all,'' 
while that agency refuses to answer questions from the 
representatives of the American public.
    Well, I can tell you that actions have consequences. And 
those who don't show up to work generally don't get paid. And 
to quote a President from long ago from the other side of the 
aisle, the buck will stop here. It stops in Congress. We are 
the ones that send the money to the Administration. And I will 
be working with my counterparts in the Appropriations Committee 
to ensure that we put a stop to egregious behavior and look to 
fund CEQ at a level that is commensurate with its 
accountability to the American people and its congressionally 
authorized levels.
    And something that is still true today, according to our 
Constitution, is that Congress makes law and the Administration 
enforces the law. And we may have a lot of great policy ideas, 
we may have philosophies on society. There may be outside 
activist groups who think the world should operate this way or 
it should operate that way. But at the end of the day, 
according to our Constitution, the law rules, and it is the law 
that Congress passes and that the Administration signs. And 
when we have an agency that deviates from that, it is Congress' 
responsibility, it is our duty as representatives of the 
people, to hold that Administration accountable. And that is 
the purpose of this hearing today.
    I do want to again thank the witnesses that are here. I 
think you can provide important information about the real-
world impacts of the actions of CEQ, and I look forward to 
hearing the testimony.
    Again, Chairman, thank you, and I yield back.

    Dr. Gosar. Thank you, Chairman Westerman. Now I will 
introduce our witnesses.
    As we have stated before, we invited Chair Mallory from the 
White House's Council on Environmental Quality. While she 
refused our invitation and she declined to send a designee, we 
still did reserve her a chair in case she changes her mind.
    We now have Mr. Mario Loyola, Director of the Environmental 
Finance and Risk Management Program and Research Assistant 
Professor at Florida International University Institute of 
Environment, that is a mouthful; Ms. Jill Heaps, Senior 
Attorney at Earthjustice; Mr. Scott Simms, CEO and Executive 
Director, Public Power Council; and Mr. Marlo Lewis, Senior 
Fellow at the Competitive Enterprise Institute.
    Let me remind the witnesses that under Committee Rules, 
they must limit their oral statements to 5 minutes, but their 
entire statement will appear in the hearing record.
    To begin your testimony, just press the on button on the 
microphone. We use timing lights here. When you begin, the 
light will turn green, and at the end of those 5 minutes, it 
will turn red. I ask you to please summarize and complete your 
statement if you start seeing the yellow.
    I will also allow all witnesses to testify before having 
Members ask their questions.
    I now recognize Mr. Loyola for his first 5 minutes.

   STATEMENT OF MARIO LOYOLA, RESEARCH ASSISTANT PROFESSOR, 
  ENVIRONMENTAL LAW, FLORIDA INTERNATIONAL UNIVERSITY, MIAMI, 
                            FLORIDA

    Mr. Loyola. Chairman Gosar, Ranking Member Stansbury, 
members of the Committee, thank you for the honor of appearing 
before you today.
    My name is Mario Loyola. I teach environmental law at 
Florida International University, and I am also a fellow at the 
Heritage Foundation. Under President Donald Trump, I served as 
Associate Director for Regulatory Reform at CEQ, where I was 
intimately involved in developing the One Federal Decision 
policy and the 2020 rule revision. I am appearing before you 
today in my individual capacity, and not as a representative of 
FIU or the Heritage Foundation. I have submitted more detailed 
comments for the record, and will just make a few points now.
    The delays and uncertainties of the Federal permitting and 
environmental review process are an enormous burden for 
American society, and a very dangerous, competitive 
disadvantage compared with countries like China. Not only does 
it deprive Americans of the modern infrastructure that they 
need and deserve, but even the scale of the renewable energy 
deployment that would be required for the clean energy 
revolution that Ranking Member Stansbury mentioned is 
completely impossible under current law because of the limits 
to the amount and the speed at which renewable energy capacity 
can be permitted.
    Within the executive branch, Presidents Bush, Obama, and 
Trump all tried to tackle this problem of inefficient 
permitting. But President Biden, unfortunately, appears to have 
thrown in the towel on permitting reform. One fact that is 
incredible to me really bears this out. During the Trump 
administration, the rate at which renewable energy capacity was 
permitted actually doubled from 2017 to 2020. Under the Biden 
administration, it has actually gone down. And the amount of 
renewable energy capacity that was permitted last year was 
lower than in 2020.
    The Fiscal Responsibility Act's historic amendments to NEPA 
were a huge step forward for permitting reform. But some of the 
most important provisions are not self-executing and require 
active implementation by CEQ. Unfortunately, CEQ appears to 
have gone in the opposite direction. Perhaps to placate the 
radical left or for whatever reason, CEQ has sought to undo the 
Trump-era reforms, of which, ironically enough, the renewable 
energy sector was arguably the primary beneficiary. I will name 
a few examples.
    Where the Fiscal Responsibility Act tries to clarify that 
only a limited set of reasonable alternatives to the agency 
action need to be studied in detail, CEQ has reintroduced the 
concept of studying alternatives outside the agency's 
jurisdiction. Even worse, it has created a new requirement that 
the agency identify and study in detail the environmentally 
preferable alternatives, which is not a statutory requirement 
in NEPA for significance determinations. CEQ has again gone 
back to the 1978 regulation, and revived the context and 
intensity factors, thereby expanding what should be a single 
factor inquiry for the agencies into a dozen or more factors 
that they have to consider.
    Likewise, CEQ has reintroduced the concept of cumulative 
impacts into the definition of effects that must be studied. 
And here I will just stop and make a point that is very 
important for the Committee to be clear about, and for the 
Committee to make clear for the American people, which is that 
these added procedural burdens that CEQ has reintroduced into 
the NEPA process are not judicially enforceable against Federal 
agencies. CEQ has no rulemaking authority. The CEQ regulation 
is really just an Executive Order, like Executive Order 12866.
    And no matter what level of deference courts give CEQ, 
whether it is substantial deference as the Supreme Court has 
indicated, or more controlling deference as lower Federal 
courts have mistakenly done, it simply cannot be the case that 
the statutory term effects of the agency action can include the 
effects of other actions that are not related to the agency 
actions, which is, of course, the concept of cumulative 
impacts.
    Likewise, the time limits and page limits in the Fiscal 
Responsibility Act are not self-executing, and require CEQ 
guidance. Here it is very important that agencies not be 
allowed unfettered discretion to start the clock ticking 
whenever they want.
    Finally, the definition of major Federal action, CEQ must 
make clear that it is the action and its impacts that must be 
within the agency's control for NEPA to be triggered.
    There is more than enough capital in the private economy to 
build all the infrastructure that America needs if government 
would just make the process more predictable. Congress wouldn't 
have to be borrowing trillions of dollars from our children and 
grandchildren to subsidize infrastructure if we could just 
remove the uncertainties that the process contains today.
    I have made several recommendations to that effect in my 
submitted testimony, and I look forward to answering your 
questions. Thank you very much.

    [The prepared statement of Mr. Loyola follows:]
 Prepared Statement of Mario Loyola, Professor, Florida International 
        University, Senior Research Fellow, Heritage Foundation

    Chairman Gosar, Ranking Member Stansbury, members of the Committee, 
thank you for the honor of appearing before you today. My name is Mario 
Loyola. I'm a research assistant professor at Florida International 
University, where I teach environmental and administrative law. I'm 
also a fellow at the Heritage Foundation, where I focus on energy, 
climate, and environment issues.
    Under President Donald Trump, I served as associate director for 
regulatory reform at the White House Council on Environmental Quality 
(CEQ). In that role I was one of the principal drafters of the One 
Federal Decision policy and the revision to CEQ's Regulation of NEPA. 
My testimony today reflects the insights gleaned from years of work on 
these issues in and out of government. I'm appearing before you today 
in my individual capacity and not as a representative of FIU or The 
Heritage Foundation. The views I will express today are my own and not 
necessarily those of FIU or The Heritage Foundation.
    Many factors contribute to the enormous costs, delays, and 
uncertainties of the federal process for permitting and environment 
review of infrastructure projects. But the root of the problem is a 
hydra-headed bureaucracy in which separate agencies enforce disparate 
environmental laws with uncoordinated and inconsistent processes. 
Charged with overseeing the National Environmental Policy Act (NEPA) 
CEQ has tried to reform the process under presidents of both parties. 
But all those efforts are just tinkering at the margins of a problem 
that only Congress can solve. Congress took a major step towards reform 
when it amended NEPA in the Fiscal Responsibility Act, and the members 
of this committee are to be particularly commended for that 
accomplishment. But much more needs to be done.
I. The Vital Importance of Efficient Permitting and Environmental 
        Review

    The costs, delays, and uncertainties of the federal process for 
permitting and environmental review of major infrastructure projects 
are an enormous competitive disadvantage for the United States. 
Permitting inefficiency deprives Americans of the modern infrastructure 
they need and deserve. Leaving aside whether the goal of net zero is 
even desirable, the American people need to understand that the goal of 
net zero is a fantasy given the delays and uncertainties of the 
permitting process.
    The Biden administration has been remarkably slow to appreciate 
this, which is surprising given that its highest priority is supposed 
to be a transition to net zero. It's a remarkable contrast with the 
Trump administration. The amount of renewable energy capacity permitted 
has gone down in the Biden administration after doubling during the 
Trump administration. Ten percent less renewable capacity was permitted 
last year than in 2020. That should ring alarm bells in Congress. The 
Trump administration's attitudes toward renewable energy ranged from 
agnostic to hostile. Yet simply because of President Trump's commitment 
to efficient permitting, the rate of renewable capacity permitting was 
higher in his last year in office than it is now. This also highlights 
the paradox that among the biggest obstacles to a clean energy 
transition are the far-left environmental advocacy groups that block 
the very permitting reforms that would be necessary to increase 
deployment of renewable energy.

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


    Chart: U.S. Annual and Cumulative Utility-Scale Clean Power 
Capacity Growth--Clean Power Annual Market Report 2022

    We often hear complaints about the costs, delays, and uncertainties 
of the permitting process, but of these, the worst by far is 
uncertainty, which has an enormous impact on access to capital. This is 
a key point for members of Congress to understand. There is more than 
enough capital in the private economy to build all the infrastructure 
that America needs. If we could only make the permitting process 
predictable enough for private financing, Congress would not have to 
borrow trillions from our children and grandchildren to subsidize 
infrastructure.
II. CEQ's Revisions to its NEPA Implementing Regulations

A. The CEQ Regulation Does Not Create Judicially Enforceable Rights or 
        Obligations

    In 1978, under President Jimmy Carter, CEQ published a set of so-
called regulations implementing NEPA. I say ``so-called'' because CEQ 
has no rulemaking authority under NEPA. The authority cited in the 
premises of the 1978 Regulation is a Nixon executive order, as amended 
by a Carter executive order.\1\ The CEQ regulation is simply a White 
House directive dressed up to look like a regulation. Its guidelines 
are mandatory for executive branch agencies, just like E.O. 12866. But, 
like E.O. 12866, it cannot add to the judicially enforceable rights and 
obligations created by NEPA.
---------------------------------------------------------------------------
    \1\ Executive Order 11514 (March 5, 1970), as amended by E.O. 11991 
(May 24, 1977).
---------------------------------------------------------------------------
    When made pursuant to executive authority and not in the exercise 
of a congressional delegation of rulemaking authority, presidential 
directives present the paradigmatic case for Skidmore deference, to wit 
``substantial deference'' to agencies' interpretive rules. See, 
Skidmore v. Swift & Co., 323 U.S. 134 (1944). While lower federal 
courts have often treated the CEQ Regulation as controlling and 
judicially enforceable, the Supreme Court has gotten this right. In 
Andrus v. Sierra Club, the Court noted, ``CEQ's interpretation of NEPA 
is entitled to substantial deference.'' 442 U.S. 347, 358 (1979). The 
Court has reiterated that position several times, for example in 
Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989) and 
Department of Transportation v. Public Citizen, 541 U.S. 752 (2004).
    These cases need to be read with Vermont Yankee Nuclear Power Corp. 
v. NRDC, in which the Supreme Court made clear: ``Agencies are free to 
grant additional procedural rights in the exercise of their discretion, 
but reviewing courts are generally not free to impose them if the 
agencies have not chosen to grant them.'' 435 U.S. 519 (1978).
    Hence, it is important to remember that neither CEQ nor federal 
courts have the power to add enforceable procedural requirements to the 
statutory requirements of NEPA.
B. Developments Since 2020

    On July 16, 2020, CEQ finalized an extensive revision and update of 
the 1978 regulation.\2\ The Trump-era rule revision was measured, 
designed to reduce costs, delays, and uncertainties, while making the 
NEPA process more inclusive for stakeholders and preserving 
environmental protections.
---------------------------------------------------------------------------
    \2\ 85 Fed. Reg. 43,304, ``Update to the Regulations Implementing 
the Procedural Provisions of the National Environmental Policy Act,'' 
(July 16, 2020).
---------------------------------------------------------------------------
    I was intimately involved in the process that produced that rule 
revision, and I can attest that we bent over backwards to create an 
inclusive, broad-based rule that could get bipartisan support and stand 
the test of time. The worst thing that could happen is for the CEQ rule 
to become politicized and for NEPA procedures to change with every new 
administration. Like uncertainty in the NEPA process, instability in 
NEPA procedures hurts everybody.
    In my view, the Biden CEQ has not been sufficiently sensitive to 
this danger. The rule proposed on July 31 and currently up for notice-
and-comment is called ``Phase 2,'' but it is actually the third time 
CEQ has changed its regulation of NEPA since 2022.\3\
---------------------------------------------------------------------------
    \3\ 88 Fed. Reg. 49,924, ``National Environmental Policy Act 
Implementing Regulations Revisions Phase 2,'' July 31, 2023.
---------------------------------------------------------------------------
    Fortunately, the Fiscal Responsibility Act (FRA) enacted important 
amendments to NEPA. Those amendments will help anchor the NEPA process 
and provide much-needed stability.
III. Issues in the Biden CEQ's Phase 2 Rewrite
    This section highlights important issues in the Phase 2 rulemaking, 
including CEQ's consistency with the FRA's NEPA amendments.

    Statement of purpose and need. As amended, NEPA now requires 
environmental documents to contain a statement of purpose and need for 
the agency action. It's very important to distinguish between the 
purpose and need for the agency action, and the purpose and need for 
the underlying project. In a permitting decision subject to NEPA, the 
purpose and need for the project is none of the agency's business. What 
matters in the NEPA process is the purpose and need for the agency 
action, which in a permitting decision is the statutory authority that 
requires the agency to act on a permit application. This matters 
because of the alternatives analysis, which is supposed to be cabined 
by the purpose and need, and which often takes up a majority of the 
EIS. The alternatives to a project may be infinitely many. But the 
alternatives in a permitting decision will normally be just to grant or 
deny the permit. Agencies routinely conflate the purpose and need for 
the project with the purpose and need for the action, which leads to an 
enormous waste of time and resources. All the time that FERC spends 
studying design alternatives and routing alternatives--none of that is 
required by NEPA. This is something that the Phase 2 rulemaking gets 
right. The new Sec. 1502.13 would require that each EIS contain a 
statement of the purpose and need for the proposed agency action.

    Limitation on alternatives that must be considered. NEPA originally 
required the agency to study ``alternatives'' to the proposed agency 
action but gave little guidance on which alternatives the agency should 
consider. The result has been a huge waste of time both in the NEPA 
process and the ensuing litigation. The FRA amendments provided much 
needed clarity and limiting principles here. Under Sec. 102(2)(C), the 
alternatives that the agency is required to consider now are those that 
constitute: (1) a ``reasonable number''; (2) are technically and 
economically feasible; (3) are within the jurisdiction of the agency; 
(4) meet the purpose and need of the proposed agency action; and (5) 
meet the goals of the applicant.
    This is a significant change. One of the biggest contributors to 
the excessive length of NEPA documents is that agencies spend hundreds 
of pages studying the impacts of a broad range of alternatives that the 
developer can readily exclude for business reasons, and that the agency 
can often readily exclude for policy reasons. But they study them 
anyway, because of the lack of clarity of what alternatives the law 
required them to study. A major problem has been the systematic 
conflation of alternatives to the ``agency action'' with alternatives 
to the project itself, alluded to above.
    The Phase 2 rulemaking contains problematic language in this 
regard. Sec. 1502.14(a) reintroduces the concept of ``alternatives not 
within the jurisdiction the agency.'' As long as it is not an 
enforceable requirement, such procedural add-ons are within the 
prerogative of the president, but it could lead agencies to consider 
factors that Congress did not intend them to consider, in violation of 
the Administrative Procedure Act. An even bigger problem is the new 
requirement in Sec. 1502.14(f) that the agency identify the 
environmental preferable alternative. Federal courts have to be clear 
that this language is precatory as far as they're concerned, and 
definitely not judicially enforceable.

    Significance determination. Sec. 1501.3(d) of the Phase 2 
rulemaking reintroduces the ``context and intensity'' factors that the 
1978 Regulation invented out of thin air to guide agencies in 
determining when there is a significant impact requiring an EIS under 
NEPA. The Trump-era CEQ eliminated these factors because we felt 
because ``significantly'' is a simple statutory term whose meaning 
should not require a Homeric odyssey of regulatory exploration. The 
``context and intensity'' factors are an example of how the NEPA 
process has expanded to consume enormous agency resources, and their 
reintroduction in the Phase 2 rulemaking is a major step in the wrong 
direction.

    Reasonably foreseeable standard for impacts that must be studied. 
The FRA changed NEPA Sec. 102(2)(C) to create a ``reasonably 
foreseeable'' standard for the impacts and alternatives that must be 
studied. This is a significant change, because the biggest expansion in 
the scope of NEPA in recent years has been a series of court rulings 
that require agencies to study impacts far upstream and far downstream 
from the agency action, including climate-related impacts. ``Reasonably 
foreseeable'' is a concept borrowed from the law of torts, in which 
liability for negligence lies when the defendant's failure in his duty 
of care was not just the cause-in-fact of the injury but also its 
proximate cause. Proximate causation is limited to those injuries that 
are reasonably foreseeable. This is one of several provisions adopted 
from the 2020 NEPA rule revision and was borrowed from Justice Thomas's 
majority opinion in Department of Transportation v. Public Citizen. 
Agencies and developers should now be able to avail themselves of 
proximate causation as developed in the common law of torts to limit 
the downstream and upstream effects that must be considered in the NEPA 
process.
    The White House can still require agencies to account for 
greenhouse gas emissions, but there is no way that greenhouse gas or 
climate impacts of any particular agency action could be considered 
``significant'' impacts within the meaning of Sec. 102(2)(C) of NEPA. 
Permit decisions are not the place for agencies to be usurping 
Congress's role in making national policy.

    Cumulative Effects. Similarly, Sec. 1508(g) of the Phase 2 
rulemaking defines effects or impacts to include ``cumulative 
effects,'' which are effects on the environment that result from the 
incremental effects of the action when added to the effects of other 
past, present, and reasonably foreseeable actions regardless of what 
agency or person undertakes such other action. This also should not be 
treated as a judicially enforceable requirement. The environmental 
baseline should always include important trends. But whatever level of 
deference is given to the CEQ regulation, there is no possible way that 
``effects of the proposed agency action'' in Sec. 102(2)(C) could be 
read to include effects of actions totally unrelated to the proposed 
agency action. Therefore, CEQ's inclusion of ``cumulative effects'' 
within the definition of ``effects'' should be considered precatory and 
totally irrelevant to the legal sufficiency of an EIS.

    Time limits. Under the FRA's NEPA amendments, the lead agency must 
now complete the EIS in 2 years, and an EA in 1 year. The clock starts 
ticking on the earlier of (a) the date that the agency determines that 
an EIS or EA is required for the proposed action, (b) the date on which 
the agency notifies the applicant that its application is complete, or 
(c) the date on which the agency publishes a notice of intent to 
prepare an EIS or EA.
    This provision of the FRA creates a tight timetable that if 
effectively implemented will make the process much faster and more 
predictable. But it is not entirely self-executing. If left to their 
own devices agencies will almost certainly game the system, just like 
they gamed the time limits under One Federal Decision. The issue with 
time limits in NEPA is always who controls the starting gun. If it is 
the agency, then a real time limit is almost impossible to achieve. An 
effective time limit requires putting the project proponent in charge 
of when the clock starts ticking.
    Hence, the time limits codified at Sec. 1501.10 in the Phase 2 NEPA 
rulemaking are a missed opportunity. CEQ needs to create an automatic 
trigger for when the agency ``determines that NEPA requires an EIS or 
EA for the proposed action.'' That trigger should be in the hands of 
the project proponent, not the agency. One possibility is for FPISC or 
another entity outside the action agency to pass on the sufficiency of 
a permit application.

    Page limits. Similarly, agencies proved resourceful in gaming the 
page limits of One Federal Decision. The FRA's NEPA amendments limit 
EISs to 150 pages and EAs to 75 pages (350 and 150, respectively for 
projects of ``extraordinary complexity''). These limits do not include 
appendices. But if the page limits don't include appendices, then there 
may be no real page limits, and we could start seeing executive 
summaries 150 pages long presented as a complete EIS, with the other 
however many hundreds or thousands of pages of EIS presented as 
appendices. CEQ should establish the principle that the sufficiency of 
the EIS is reinforced by, but does not require, any of the matter in 
the appendices.

    Applicant preparation of NEPA documents. As amended by the FRA, 
Sec. 107(f) of NEPA requires agencies to prescribe procedures for 
project proponents to draft their own EISs, subject to agency 
verification and adoption. This is a very important change. One of the 
greatest sources of delay and uncertainty in the NEPA process was the 
requirement, invented by the 1978 CEQ Regulation, that the agency 
prepare the EIS. The change brings U.S. environmental review procedures 
in line with the general practice across developed industrial 
economies. But once again, the FRA's NEPA amendment is not entirely 
self-executing and looking at Sec. 1506.5 of the Phase 2 rulemaking, 
this is another missed opportunity. CEQ should specify the procedures 
to be adopted by agencies in compliance with Sec. 107(f) and should 
give agencies a strict timeline to adopt them.

    Major federal action. In the years after NEPA was first enacted, 
there was considerable discussion about whether the word ``major'' in 
``major federal action significantly impacting'' the environment (under 
Section 102(2)(C)) created a separate standard that needed to be met 
apart from ``significantly impacting'' for NEPA's core EIS requirement 
to be triggered. The 1978 CEQ Regulation of NEPA tried to settle the 
debate by providing that if a federal action had a ``significant 
impact'' on the environment, it was ipso facto a ``major'' federal 
action. This arguably violated an important canon of construction, 
which is that words in a statute should not be presumed to mean 
nothing.
    In a new definition of ``major federal action'' the FRA made clear 
that ``major'' is a separate standard that must be met independently of 
``significantly impacting'' for NEPA to be triggered: ``The term `major 
Federal action' means an action that the agency carrying out such 
action determines is subject to substantial Federal control and 
responsibility.'' CEQ should clarify that ``action'' in the statute 
means an action and its impacts, such that the action is ``major'' if 
its impacts are subject to substantial Federal control and 
responsibility. Hence an agency action related to a project whose 
ultimate outcome or impacts are under the control of a state government 
should not qualify as a ``major federal action.''
IV. Recommendations

    To address the problems of cost, delay, and uncertainty in the 
permitting process, Congress should at a minimum:

    Make the timing predictable. Agency officials drag their feet every 
step of the way, leaving developers in limbo and driving up projects' 
costs. If developers had more control over project timetables, it would 
save enormous amounts of capital and time. Instead of allowing only 
officials to assemble environmental documents, developers should be 
allowed to prepare the materials for agency certification. If agencies 
take too long issuing a permit or denial, developers should be given 
provisional permits to start construction subject to monitoring and 
mitigation.

    Prioritize projects of national importance. NEPA has resulted in 
the systemic subordination of the national interest in major 
infrastructure projects to small pockets of local opposition. Courts 
ruling on injunctive relief have often disregarded the national 
interest in effective agency action.

    Create a unified process. Every major infrastructure project 
requires permits from a half dozen federal agencies all using 
different, uncoordinated processes. There should be a uniform, 
centralized process that gives priority to projects of national 
importance. CEQ should make this a priority of its E-NEPA study under 
Sec. 110 of NEPA as amended by the FRA.
    Major infrastructure projects should have access to a single ``one-
stop-shop'' agency and single application process to obtain all needed 
permits under a single environmental review document. The ``one-stop-
shop'' can either grant authorizations or act as a coordinator to 
facilitate the interagency process with directive authority. The 
Permitting Council created by FAST-41 could be the foundation for such 
an agency.
    Denmark and the Netherlands have consolidated all their 
environmental laws into a single statute with a single permitting 
agency, while preserving the enforcement and regulatory authorities of 
traditional environmental agencies. Congress should begin the process 
of studying whether federal environmental laws can be updated and 
harmonized in a bipartisan process of consolidation.

    Centralized data collection on infrastructure projects. A central 
data collection platform that longitudinally tracks projects from 
preapplication to completion or abandonment, on a sector-wide basis, 
could vastly improve access to financing, by making the risks of 
permitting more easily quantifiable. In the U.S., such information 
exists only for EISs, which comprise only a small fraction of 
infrastructure projects. A comprehensive database should cover all 
major infrastructure projects, federal and state. It should be designed 
in such a way as to serve as a common basis for official environmental 
assessment and authorization decisions, private investment decisions, 
and public comment. The data should be detailed enough to allow private 
companies to provide ``predictive project analytics'' to potential 
developers and investors. CEQ should also make this a priority of its 
E-NEPA study under Sec. 110 of NEPA as amended by the FRA.

    Reduce litigation risk. Important projects are held up by lawsuits 
over minor omissions in environmental studies. Tightening the statute 
of limitations is not enough. Agencies should be held to a substantial-
compliance standard, so that if reports are mostly right, a project can 
still go forward while the environmental document is corrected. 
Congress should tighten the rules on standing and revive procedural 
protections for defendants so that activists cannot hold up safe 
infrastructure over minor issues.

    Empower agencies to establish programmatic and general permits. 
Major categories of infrastructure projects with similar environmental 
profiles should be subject to expedited programmatic or general 
permits, with mitigation and monitoring requirements. Congress should 
empower agencies to create programmatic and general permits when 
necessary to advance national policy goals.

                                 ______
                                 

    Dr. Gosar. Thank you, Mr. Loyola.
    I now recognize Ms. Heaps for her 5 minutes.

      STATEMENT OF JILL WITKOWSKI HEAPS, SENIOR ATTORNEY, 
                EARTHJUSTICE, NEW YORK, NEW YORK

    Ms. Heaps. Good morning, Chair Gosar, Ranking Member 
Stansbury, and members of the Subcommittee. My name is Jill 
Witkowski Heaps. I am a public interest attorney at 
Earthjustice and an expert on NEPA. I have been helping 
communities navigate NEPA issues for almost two decades. I have 
also been briefed by my Earthjustice colleagues in order to 
provide testimony today on the Lower Snake River restoration.
    I would like to start today with a story of how NEPA saved 
the Lower Ninth Ward in New Orleans. Pam Dashiell and her 
neighbors in the Holy Cross neighborhood were concerned when 
they learned that the Army Corps of Engineers had a plan to 
dredge toxic muck from the bottom of the Industrial Canal and 
pile it up in the marsh next to the Lower Ninth Ward. The Corps 
approved the dredging plan without figuring out exactly what 
pollutants were at the bottom of the canal, how deep they were, 
how toxic they were, and even if it was safe to put that 
pollution in the marsh.
    Pam and her neighbors from the Holy Cross Neighborhood 
Association sued the Corps for failing to comply with NEPA. 
While the suit was pending, on August 29, 2005, Hurricane 
Katrina slammed into New Orleans. The area where the Corps 
planned to put the toxic muck was inundated with 19 feet of 
high-velocity erosional water. Had the toxic material been 
stockpiled in the marsh when Katrina hit, that toxic material 
would have spread all over the Ninth Ward, and likely other 
parts of New Orleans, potentially rendering them unsalvageable 
after the storm.
    The court agreed that the Corps failed to take a hard look 
at the environmental consequences of its action. And this is 
how NEPA and a community's ability to hold agencies to comply 
with its mandates saved the Lower Ninth Ward so Holy Cross 
neighborhood could rebuild after the storm.
    Many of the communities and environmental justice leaders I 
have worked with over the course of my career recognized NEPA's 
unfulfilled promise. NEPA's primary purpose is for agencies to 
take a hard look at the effects of a project. But in practice, 
agencies treat the affected community as an afterthought, a box 
to check. If no one bothers to sit down and have a conversation 
with the community until the project is a done deal, then the 
NEPA document is a paperwork exercise.
    Many communities suffer because they are literal and 
figurative dumping grounds so the rest of us can live in 
neighborhoods free from air and water pollution, noise, and 
traffic that they are saddled with. These communities are dying 
of death by a thousand cuts. And here is where NEPA, a law 
where the Federal agencies are supposed to be looking at 
cumulative impacts of a project, a law that could alleviate 
more harm to already overburdened communities. But in practice, 
agencies sometimes overlook, ignore, and downplay the 
cumulative environmental impacts to the community, or, if they 
do look at the impacts, the agency may claim the impacts are 
not disproportionate, as if the communities had the exact 
amount of pollution that they deserved.
    The Phase 2 regulations are a step in the right direction 
to fulfilling NEPA's promise of better Federal decisions that 
involve the public in the decision-making process. The 
regulations codify what many courts have already told us: 
environmental justice and climate change analysis are key 
elements of NEPA reviews.
    If an agency relies on mitigation measures to determine 
that impacts are not significant, then provide certainty that 
mitigation will occur, use plain language in the documents, 
involve affected communities early in the process. All of these 
things will lead to more clarity in the rules, early and more 
meaningful community participation, and ultimately quicker and 
better decisions.
    As for the issues with the Lower Snake River, the four 
federally owned and operated dams on the Lower Snake River have 
decimated salmon populations. This has had enormous impacts on 
the four Columbia River Basin Treaty Tribes who reserved their 
right to fish in treaties with the U.S. Government in exchange 
for 13.2 million acres of land. It is time for a comprehensive, 
basin-wide solution that restores the Lower Snake River, honors 
the treaties, and makes stakeholders whole.
    Thank you for the opportunity to speak with you today, and 
I welcome your questions.

    [The prepared statement of Ms. Heaps follows:]
     Prepared Statement of Jill Witkowski Heaps, Senior Attorney, 
                              Earthjustice

    Good morning, Chair Gosar, Ranking Member Stansbury, and members of 
the Subcommittee. I am Jill Witkowski Heaps, Senior Attorney at 
Earthjustice. Prior to my time at Earthjustice, I was a law professor 
at the University at Buffalo, at Vermont Law School, and at Tulane Law 
School. I have spent almost two decades of my career working on 
National Environmental Policy Act (NEPA) cases. From 2013-2019, I 
served on the National Environmental Justice Advisory Council, serving 
as Vice-Chair for three years. After my term on the NEJAC ended, I 
continued to serve as an at-large member of the NEJAC committee on the 
NEPA. I am familiar with the 2020 regulation changes and the proposed 
Phase Two Regulations. I also have been briefed by my Earthjustice 
colleagues in order to provide this testimony related to the Lower 
Snake River restoration.

                          Summary of Testimony

                                  NEPA

    The National Environmental Policy Act, our Nation's bedrock 
environmental law, mandates that agencies ``look before they leap,'' 
with the intent that a hard look at the environmental consequences of 
an action will lead to better decision making. When NEPA is not 
robustly and fully implemented, it can lead to disaster. Community 
members in the Lower Ninth Ward and Hold Cross neighborhoods in New 
Orleans learned this firsthand. The Army Corps of Engineers planned to 
dredge the Industrial Canal and place the sediment in a marshy area 
next to the Lower Ninth Ward neighborhood. The Corps knew the sediment 
was contaminated with various toxins, but it did not know exactly where 
the contamination was or how severe it was. The Corps approved the 
dredging project and the neighbors sued, objecting that the Corps 
failed to take a hard look at the risks from putting toxic materials in 
the marsh near the neighborhood. On August 29, 2005, Hurricane Katrina 
slammed New Orleans. The area where the Corps planned to put the toxic 
materials was inundated with 19 feet of high-velocity, erosional 
waters. Had the Corps moved forward with their plan, the toxic dirt 
would have been spread all over the Lower Ninth Ward, the Holy Cross 
neighborhood, and other parts of New Orleans, making them potentially 
uninhabitable. The court agreed that the Corps failed to take a hard 
look at the environmental consequences of its action. NEPA--and the 
community's ability to challenge the analysis in court--saved those New 
Orleans neighborhoods so that they could be rebuilt in the hurricane's 
aftermath.
    The Council on Environmental Quality (CEQ) shoulders the critical 
task of implementing the National Environmental Policy Act. As our 
Nation's bedrock environmental law, NEPA was adopted by a bipartisan 
Congress and signed into law by President Nixon to ensure that federal 
agencies make better decisions by ``looking before they leap.'' NEPA 
created CEQ to set the backstop of minimum requirements for NEPA 
compliance. Then individual agencies adopt their own regulations to 
implement NEPA that are consistent with the CEQ regulations.
    Over the more than fifty years of implementing NEPA, federal 
agencies have addressed emerging issues--like climate change and 
environmental justice--with varying degrees of focus and intention. The 
2020 revisions to the 1978 NEPA Regulations in many ways undermined, 
rather than buttressed, NEPA. Left in place, the 2020 Regulations would 
have created massive uncertainty that would have required endless 
litigation to determine how they should be interpreted by agencies, 
project proponents, and stakeholders. The CEQ's Phase One Regulations, 
finalized in April 2022, and the proposed Phase Two Regulations are 
squarely within CEQ's regulatory authority and do not represent 
``systemic government overreach.'' On the contrary, these regulatory 
changes modernize NEPA to ensure that environmental reviews address key 
issues like climate change and environmental justice. The new 
regulations provide clarity to promote faster, more efficient decision 
making. They also promote meaningful participation in federal decision 
making to facilitate better choices, reduce environmental harms, and 
ensure more responsible use of taxpayer dollars.
1. The Phase Two Regulations Provide Much-Needed Clarity on How 
        Agencies Should Address Environmental Justice Issues in NEPA 
        Reviews.

    NEPA mandates agencies consider an action's impacts on the human 
and natural environment. Environmental justice is defined as the just 
treatment and meaningful involvement of all people so that they are 
fully protected from disproportionate and adverse human health and 
environmental effects and hazards, and have equitable access to a 
healthy, sustainable, and resilient environment. NEPA itself therefore 
has required that agencies consider issues of environmental justice in 
their environmental reviews since at least 1994 and the issuance of 
Executive Order 12,898, Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations.\1\
---------------------------------------------------------------------------
    \1\ Exec. Order No. 12,898 mandates ``each Federal agency shall 
make achieving environmental justice part of its mission by identifying 
and addressing, as appropriate, disproportionately high and adverse 
human health or environmental effects of its programs, policies, and 
activities on minority populations and low-income populations in the 
United States,'' 59 Fed. Reg. 7629, 7629, 7632 (Feb. 11, 1994). See 
also Standing Rock Sioux Tribe v. U.S. Army Corps of Eng'rs, 440 F. 
Supp. 3d 1, 9 (D.D.C. 2020), aff'd, 985 F.3d 1032 (D.C. Cir. 2021) 
(``NEPA creates, through the Administrative Procedure Act, a right of 
action deriving from Executive Order 12,898.'').
---------------------------------------------------------------------------
    In 2019, the National Environmental Justice Advisory Council 
(NEJAC) submitted a letter to then-EPA Administrator Wheeler, detailing 
problems with NEPA from an environmental justice standpoint and 
recommending changes.\2\ The NEJAC identified three specific areas 
where NEPA was failing communities with environmental justice concerns. 
The letter observed that ``[t]o the extent that the analysts now 
address environmental justice at all, they often do it in a sanitized, 
checklist-driven manner.'' \3\ This approach fails to meaningfully 
address cumulative impacts on the community and identify reasonable 
alternatives and therefore ``adds little if any value to the resulting 
documents.'' \4\ The NEJAC criticized that NEPA analysis often is 
little more than an effort to justify a preferred alternative and 
discount others, which fundamentally undermines the purpose of NEPA. 
The NEJAC also observed that analysts rarely ``consider the hard 
connection between the economic benefit of an action and the health and 
welfare of workers, especially those in environmental justice 
communities.'' \5\
---------------------------------------------------------------------------
    \2\ Letter from the Richard Moore, NEJAC, to EPA Administrator 
Wheeler, ``National Environmental Policy Act and Environmental 
Justice,'' Aug. 19, 2019 https://www.epa.gov/sites/default/files/2019-
10/documents/nejac_letter_nepa.pdf
    \3\ Id.
    \4\ Id.
    \5\ Id.
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    The NEJAC crafted recommendations based on members' ``wealth of 
ground-level experiences in the use and misuse of NEPA'' and were 
subject to a ``broad, inquiring discussion'' before they were 
submitted. The recommendations emphasized the need for more robust, 
high-quality information related to environmental justice in order to 
develop better decisions. The recommendations provided detailed 
examples of how NEPA analyses could effectively assess and mitigate 
harm to the human environment, how cumulative impacts analyses 
impacting communities should involve the communities in identifying the 
impacts, and ensuring community questions and concerns were addressed 
in meaningful, substantive ways. The NEJAC letter also requested that 
EPA work with CEQ and NEPA leadership across the federal family to 
encourage agencies to adopt and consistently use the Federal 
Interagency Working Group on Environmental Justice's report ``Promising 
Practices for EJ Methodologies in NEPA Reviews.''
    For too long communities with environmental justice concerns have 
been treated as a ``check the box'' afterthought in the NEPA process or 
left out altogether. For example, in the 362-page NEPA document the 
Federal Highway Administration approved in 2020 for the Erie Bayfront 
Parkway Project, the environmental justice analysis spanned just over 
one page, despite vocal opposition by impacted community members and 
the local NAACP chapter. In the U.S. Fish & Wildlife Service's 2020 
environmental assessment for a sewage pipeline right of way through the 
Iroquois National Wildlife Refuge, the document concluded there were no 
environmental justice communities in the affected area, even though the 
Tonawanda Seneca Nation's reservation is in the affected area.
    The Phase Two Regulations address long-running shortcomings in 
environmental justice analysis spanning nearly 30 years since Executive 
Order 12,898 was finalized. The Phase Two Regulations clarify that 
NEPA's policy requires federal agencies, to the fullest extent 
possible, to encourage and facilitate public engagement in decision 
making through ``meaningful engagement with communities with 
environmental justice concerns, which often include communities of 
color, low-income communities, Indigenous communities, and Tribal 
communities.'' The proposed regulations are a critical step to ensure 
all federal agencies conduct an environmental justice analysis that 
meaningful involves the impacted communities and lead to better 
decisions for the entire community.
2. The Phase Two Regulations Direct Agencies To Address Climate Change 
        in NEPA Reviews.

    While courts have long recognized that NEPA reviews must address 
climate impacts, various federal agencies have been slow or reticent to 
meaningfully tackle climate change issues in NEPA documents. While 
agencies preparing NEPA documents for fossil fuel projects have been 
incorporating climate change analysis to some extent, agencies 
preparing environmental reviews for other types of projects have been 
myopic in their failure to meaningful look at an action's impacts on 
climate change and the likely impacts on the action from climate 
change. While we know that transportation is both a key contributor to 
climate change and has the potential to be greatly impacted by climate 
change--like sea level rise and the increased frequency and severity of 
storms--the Federal Highway Administration has mostly refused to 
meaningfully address climate change in its reviews. For example, the 
Federal Highway Administration's 360-page NEPA review from 2020 for the 
Erie Bayfront Parkway failed to even use the words ``climate change.'' 
The project proposed lowering an elevated waterfront roadway in a 
flood-prone area, ignoring the possibility of increased flooding of the 
underpass, despite seeing real-life examples from New York City and 
Philadelphia during recent flooding events. Similarly, the Federal 
Highway Administration has failed to examine whether a project will 
increase or maintain vehicle miles traveled, when there is consensus 
that we must reduce vehicle miles traveled to meet our climate 
goals.\6\
---------------------------------------------------------------------------
    \6\ See 2021 Pennsylvania Climate Action Plan, which includes as a 
goal ``reduced vehicle miles traveled for single occupancy vehicles.'' 
PA Climate Action Plan (2021) at 57. The plan explains that vehicle 
miles traveled ``reduction efforts are paired with land-use and 
development policies that promote and incentivize sustainable 
transportation modes (e.g., walking, biking, transit) in densely 
populated urban areas and assume the expansion of options for 
sustainable mobility to and from urban centers (bus rapid transit, 
carpool) in the medium and long terms.'' Id.
---------------------------------------------------------------------------
    Also missing from NEPA analyses are meaningful looks at things like 
extreme heat, sea level rise, coastal and inland flooding, and severe 
weather events. Examining all the potential climate change effects are 
critical to a full and meaningful examining of environmental justice 
impacts as well. A recent EPA report, Climate Change and Social 
Vulnerability in the United States: A Focus on Six Impacts, found that 
Black and African American individuals are projected to face higher 
impacts of climate change for all six impacts analyzed in the report, 
compared to all other demographic groups.\7\ The report also noted that 
Hispanic and Latino individuals are about 50% more likely to currently 
live in areas with the highest estimated increases in traffic delays 
due to increases in coastal flooding.\8\
---------------------------------------------------------------------------
    \7\ EPA. 2021. Climate Change and Social Vulnerability in the 
United States: A Focus on Six Impacts. U.S. Environmental Protection 
Agency, EPA 430-R-21-003.
    \8\ Id.
---------------------------------------------------------------------------
    Climate change is the quintessential environmental impact. It is 
long settled that agencies consider not only the impacts of a project 
on climate, but also the impacts of climate on species and critical 
infrastructure.\9\ The failure to clarify exactly how agencies should 
consider these puts communities, critical infrastructure, and taxpayer 
dollars at risk.
---------------------------------------------------------------------------
    \9\ See, e.g WildEarth Guardians v. Zinke, 368 F. Supp.3d 41 (Dist. 
D.C. 2019)(finding BLM's failure to quantify greenhouse gas emissions 
that were reasonably foreseeable effects of oil and gas development on 
public land, during the leasing stage of the development process, was 
arbitrary and capricious); Pac. Coast Fed. of Fishermen's Ass'ns v, 
Gutierrez, 606 F.Supp.2d 1122, 1184 (E.D. Cal. 2008) (rejecting NEPA 
analysis based on NMFS' ``total failure to address, adequately explain, 
and analyze the effects of global climate change on the species.'')
---------------------------------------------------------------------------
    The Phase Two Regulations clarify that ``agencies should consider 
reasonably foreseeable future climate conditions on affected areas 
rather than merely describing general climate change trends at the 
global or national level.'' \10\ CEQ directs that a NEPA analysis 
``should incorporate forward looking climate projections rather than 
relying on historical data alone.'' \11\ Also, the description of 
baseline conditions and reasonably foreseeable trends in an analysis 
should be incorporated into to an agency's ``analysis of environmental 
consequences and mitigation measures.''
---------------------------------------------------------------------------
    \10\ 88 Fed. Reg 49967, 49949 (July 31, 2023).
    \11\ Id.
---------------------------------------------------------------------------
3. The Phase Two Regulations Fix Problems Created by the 2020 
        Regulations.

    The 2020 Regulations made several changes that undermined NEPA and 
its purpose and made it more difficult for affected communities to 
participate in the NEPA process. The Phase Two Regulations fix these 
problems in several ways. The Phase Two Regulations remove the barriers 
to community participation by eliminating the changes around the bond 
requirement, the comment specificity requirements, and the exhaustion 
requirements. The Phase Two Regulations also remove language that 
undermines the purpose of NEPA, which is better decisions, not merely 
more paperwork.
    Many of the changes made in the 2020 Regulations reflected a view 
that the NEPA process is merely a paperwork exercise with minimal 
connection to substantive environmental protection. But the text of the 
law explains that NEPA's purpose is to ``declare a national policy 
which will encourage productive and enjoyable harmony between man and 
his environment; to promote efforts which will prevent or eliminate 
damage to the environment and biosphere and stimulate the health and 
welfare of man.'' \12\
---------------------------------------------------------------------------
    \12\ Id.
---------------------------------------------------------------------------
    The Phase Two Regulations make clear the linkages between our 
national environmental policies and the NEPA process,\13\ emphasize 
federal agencies' responsibilities to interpret and administer their 
policies and regulations and authorizing legislation in accordance with 
NEPA's policies and the CEQ regulations,\14\ and restore the mandate to 
comply with the Act ``to the fullest extent possible.'' \15\ The Phase 
Two Regulations also rightly reject the assertion from the 2020 
Regulations that the purpose and function of NEPA is satisfied if the 
agencies consider information that is presented through the 
environmental impact assessment process and if the public is informed 
of the process. In fact, the purpose of NEPA is not just to consider 
information--even good quality information--but to act on it. And the 
public wishes to participate in the process, not just be informed.
---------------------------------------------------------------------------
    \13\ 88 Fed. Reg. at 49968.
    \14\ Id.
    \15\ Id. at 49968.
---------------------------------------------------------------------------
    The Phase Two Regulations correctly restore to federal courts 
questions related to bonds, exhaustion, ripeness, remedies, causes of 
actions and defenses, and other issues associated with litigation. 
These limitations overstepped CEQ's authority in order to limit the 
ability of communities to challenge bad NEPA environmental reviews in 
court. CEQ has appropriately restored these questions of administrative 
law to the courts.
    The 2020 Regulations narrowed the factors agencies should consider 
when determining the appropriate level of environmental review for a 
federal action. The Phase Two Regulations seek to reinstate 
``intensity'' as a factor in determining significance. The Phase Two 
Regulations also will restore the broader definition of ``context'' in 
determining significance, which is important to ensure full and fair 
consideration of an action's indirect and cumulative impacts.
    In sum, the CEQ has been carrying out its duties to fulfill that 
the National Environmental Policy Act's purpose ``to use all 
practicable means and measures, including financial and technical 
assistance, . . . to foster and promote the general welfare, to create 
and maintain conditions under which man and nature can exist in 
productive harmony, and fulfill the social, economic, and other 
requirements of present and future generations of Americans.'' \16\ In 
the Phase Two Regulations, CEQ is adding much needed certainty to the 
environmental review process under NEPA taking a welcome first step 
towards ensuring that critical infrastructure is built not only 
quickly, but equitably, with an eye towards ensuring taxpayer dollars 
are spent responsibly.
---------------------------------------------------------------------------
    \16\ 42 U.S.C. 4331(a).
---------------------------------------------------------------------------

                     LOWER SNAKE RIVER RESTORATION

    Salmon are in crisis. Up and down the West Coast, salmon 
populations are dwindling, commercial, recreational, and tribal 
fisheries are closing, and the chances of recovery appear to be 
shrinking. In the Columbia-Snake River system, once the primary source 
for salmon in the Pacific Northwest, four federal dams on the Lower 
Snake River are pushing those populations to the brink of extinction. 
For more than two decades, conservation and fishing groups have called 
for breaching those dams in order to save the region's salmon and 
steelhead. Courts have found five separate biological opinions for dam 
operations to be fundamentally flawed for failing to adequately 
consider the impact of the dams on salmon. In the intervening years, 
the necessity and feasibility of dam breaching has only become clearer. 
But salmon cannot wait much longer. We must restore the Lower Snake 
River before it is too late.
1. Salmon Recovery in the Columbia River Basin

    The Columbia River Basin was historically one of the most 
productive salmon fisheries in the world. Estimates suggest that 7.5 
million to 16 million salmon and steelhead historically returned to 
spawn across the Columbia River Basin every year.\17\ Now, less than 
250,000 wild salmon and steelhead make that same journey. The decline 
is even worse on the Snake River, a tributary which traditionally 
produced a significant portion of the Columbia River Basin's salmon. Of 
the more than 2 million salmon that used to spawn in the Snake River, 
just 40,000 do today. Thirteen species of Columbia and Snake River 
Salmon are currently listed under the Endangered Species Act as 
threatened or endangered. Since Snake River Sockeye were listed in 
1991, the Northwest has spent nearly $20 billion on salmon recovery, 
and yet wild salmon populations continue to stagnate and decline. Put 
simply, the status quo is failing salmon, Tribal Nations, and the 
entire region.
---------------------------------------------------------------------------
    \17\ NOAA & NMFS. September 30, 2023. Rebuilding Interior Columbia 
Basin Salmon and Steelhead. https://www.fisheries.noaa.gov/resource/
document/rebuilding-interior-columbia-basin-salmon-and-steelhead
---------------------------------------------------------------------------
2. The Columbia River Basin Tribes and Salmon

    Salmon have held a position of central importance to the Indigenous 
people in the Pacific Northwest since time immemorial. For millennia, 
the ancestors of today's Columbia River Treaty Tribes (the Yakama, Warm 
Spring, Umatilla, and Nez Perce) and other Tribal Nations hunted, 
gathered, and fished within the basin. Of all their traditional foods, 
``salmon was the most important.'' \18\
---------------------------------------------------------------------------
    \18\ Meyer Resources. Developed for the Columbia River Inter-Tribal 
Fish Commission. April 1999. Tribal Circumstances and Impacts of the 
Lower Snake River Project on the Nez Perce, Yakama, Umatilla, Warm 
Springs and Shoshone Bannock Tribes. https://critfc.org/wp-content/
uploads/2021/10/circum.pdf
---------------------------------------------------------------------------
    When each of the four Columbia River Basin Tribes signed treaties 
with United States in 1855, they explicitly reserved their right to 
fish in perpetuity. They did this while under considerable pressure and 
while ceding significant portions of their traditional territory to the 
United States. Provisions in each of the four treaties contains nearly 
identical language reserving to the Tribes ``the exclusive right of 
taking fish in all the streams where running through or bordering said 
reservation is further secured to said Indians: as also the right of 
taking fish at all usual and accustomed places in common with citizens 
of the territory.'' \19\
---------------------------------------------------------------------------
    \19\ U.S.-Nez Perce Indians. Treaty between the United States of 
America and the Nez Perce Indians. June 11, 1855. 12 Stat. 957.
---------------------------------------------------------------------------
    In the years since the treaties were signed, salmon populations 
have declined dramatically. Tribal members today can harvest only a 
fraction of their historical catch of salmon, despite years of effort 
by the Tribes, state and federal agencies, and others to raise 
additional fish in hatcheries, restore habitat, increase spill over the 
dams, and even barge juvenile salmon below the dams. Everything has 
been tried to recover the salmon that are guaranteed to the Tribes, 
except for breaching the dams.
3. The Impact of the Four Lower Snake River Dams

    The four federally owned and operated dams on the Lower Snake River 
are the greatest impediments to salmon recovery in the Columbia River 
Basin. These four dams (Ice Harbor, Lower Monumental, Little Goose, and 
Ice Harbor) are part of the Federal Columbia River Power System of 31 
total dams that provide power, navigation, and other services to the 
Pacific Northwest.\20\ However, those benefits have come at the 
explicit cost of reduced salmon populations and hardship for the Tribal 
nations who depend on them.
---------------------------------------------------------------------------
    \20\ Northwest Power and Conservation Council. A Brief History of 
the Federal Columbia River Power System and Power Planning in the 
Northwest. April 22, 2011. https://www.nwcouncil.org/media/
filer_public/dc/c3/dcc38ff6-6572-4ce6-ac1d-395eb9c9e3a3/2011_10.pdf
---------------------------------------------------------------------------
    The construction of the Lower Snake River dams transformed 140 
miles of free-flowing river into a series of large, slow-moving, 
reservoirs that prevent countless salmon from reaching their spawning 
habitat. Salmon that hatch in these waters must make it past not just 
the four Lower Snake River Dams but also the four Lower Columbia River 
Dams in order to reach the ocean, and then make it past those eight 
dams again to return as adults. According to the National Oceanic and 
Atmospheric Administration and National Marine Fisheries Service, 
direct and indirect impacts from hydropower infrastructure are the 
largest limiting factor for ten of the 16 Interior Columbia River 
stocks, including all of the Snake River stocks.\21\ Juvenile salmon 
that enter the Lower Snake River regularly encounter lethally hot 
water, an abundance of predators, and other stressors.\22\ Those that 
do make it through the dams do so by expending much more energy and 
over a much longer time frame than they would have in a natural river, 
leading to delayed mortality lower down the river or in the ocean. 
Adult fish face additional challenges navigating back up the river and 
past the dams, further reducing the number of salmon who survive the 
journey to the ocean and back. The Lower Snake River dams also drowned 
countless areas that were used by Tribes for generations to fish, hunt, 
gather foods, practice ceremonies, bury their ancestors, and live the 
lives they wished to live.\23\
---------------------------------------------------------------------------
    \21\ NOAA & NMFS. September 30, 2023. Rebuilding Interior Columbia 
Basin Salmon and Steelhead. https://www.fisheries.noaa.gov/resource/
document/rebuilding-interior-columbia-basin-salmon-and-steelhead
    \22\ 68 Scientists send letter to NW policymakers on Snake River 
salmon and dams. February 22, 2021. https://www.orcaconservancy.org/
blog/68-scientists-send-letter-to-nw-policymakers-on-snake-river-
salmon-and-dams
    \23\ Meyer Resources. Developed for the Columbia River Inter-Tribal 
Fish Commission. April 1999. Tribal Circumstances and Impacts of the 
Lower Snake River Project on the Nez Perce, Yakama, Umatilla, Warm 
Springs and Shoshone Bannock Tribes. https://critfc.org/wp-content/
uploads/2021/10/circum.pdf
---------------------------------------------------------------------------
    Breaching the dams is not only a matter of biological imperative 
for the salmon, but also a necessity if the government is to honor the 
treaties it signed with Columbia River Basin Tribes.
4. A Comprehensive, Basin-Wide Solution for Salmon

    Restoring salmon and steelhead in the Columbia River Basin to 
healthy and harvestable levels will require a comprehensive, basin-wide 
solution with breaching the Lower Snake River dams at its center. Dam 
breaching would draw down the reservoirs and allow the river to 
naturally reestablish itself around the remaining powerhouse and 
associated structures. It would ease the migration of salmon up and 
down the river and increase access to more than 5,000 miles of pristine 
cold-water spawning habitat. Other important actions that will help 
restore salmon populations if implemented alongside breaching include 
reducing predation and competition, restoring habitat and water 
quality, and reintroducing stocks into currently blocked areas.
    Breaching the dams should also be accompanied with investments to 
replace and improve upon the services currently provided by the dams 
such as electricity generation, transportation via barges, and 
irrigation. Proposals from Rep. Mike Simpson (R-ID) \24\ and a report 
from Gov. Jay Inslee (D-WA) and Sen. Patty Murray (D-WA) \25\ have 
shown that the services the dams currently provide can be replaced. 
Other studies have even shown that their benefits such as electricity 
can be improved upon with alternatives that would be even more reliable 
than hydropower and at minimal cost.\26\ Earlier this year, the State 
of Washington enacted a budget with funding for studies to help plan 
for the replacement of the transportation, energy, and irrigation 
services provided by the dams. It is no longer a question of if we can 
replace the dams, but rather how best to replace the services provided 
by the dams on a timeline that avoids extinction of salmon and 
steelhead.
---------------------------------------------------------------------------
    \24\ Rep. Mike Simpson. The Columbia Basin Initiative. https://
simpson.house.gov/salmon/
    \25\ Lower Snake River Dams: Benefit Replacement Report. 
Commissioned by Sen. Murray & Gov. Inslee. August 2022. https://
governor.wa.gov/sites/default/files/2022-11/LSRD%20Benefit 
%20Replacement%20Final%20Report_August%202022.pdf
    \26\ Energy Strategies. Commissioned by NW Energy Coalition. Lower 
Snake River Dams Power Replacement Study. March 2018. https://
nwenergy.org/featured/lsrdstudy/
---------------------------------------------------------------------------
5. Conclusion

    The Columbia River Basin, once one of the most productive river 
systems in the world for salmon, is dangerously close to losing them 
altogether. Continuing with the status quo is effectively choosing 
extinction. It is time to choose a better future for the region that 
includes restoring the Lower Snake River, honoring the treaties, saving 
salmon, and securing prosperity for the entire region.

                                 ______
                                 
Questions Submitted for the Record to Ms. Jill Heaps, Senior Attorney, 
                              Earthjustice
              Questions Submitted by Representative Gosar
    Question 1. Please list any current or pending litigation that 
Earthjustice is involved in against the Federal Government. This 
includes, but is not limited to, litigation in which Earthjustice 
serves as counsel and/or represents a party to the litigation. As 
applicable, please disclose the case name, docket number, court, and 
subject matter of the litigation.

    Answer. Earthjustice is a non-profit public interest law 
organization providing legal counsel and representation to clients, as 
many other non-profit public interest law organizations so provide to 
their clients. As indicated in my disclosure form, dated September 14, 
2023, Earthjustice is not a party in any pending litigation to which 
the federal government is a party.

             Questions Submitted by Representative Grijalva

    Question 1. Based on your experience as an attorney, can you speak 
to specific instances in which NEPA regulations have successfully 
protected a community from harm?

    Answer. As I explained in my written testimony, NEPA litigation 
challenging the Army Corps' plan to widen and deepen the Industrial 
Canal helped protect communities in New Orleans from catastrophic toxic 
contamination during Hurricane Katrina. The court determined that the 
Army Corps of Engineers failed to take a hard look at the impacts of 
placing contaminated sediment in the wetlands adjacent to the Lower 9th 
Ward, given the whole area is susceptible to hurricanes. Holy Cross 
Neighborhood Ass'n v. U.S. Army Corps of Eng'rs, 455 F. Supp.2d 532 
(E.D. La. 2006).
    The Corps' additional environmental review was also insufficient. 
The Corps proposed a deep-draft dredging project on the Industrial 
Canal. However, the Industrial Canal serves to connect the Mississippi 
River and the Mississippi River--Gulf Outlet, which was no longer open 
to deep-draft traffic. The community again challenged the NEPA analysis 
and the Corps' failure to analyze a shallow-draft dredging project, as 
required by NEPA regulations. 40 C.F.R. Sec. 1502.14. The court agreed 
with the community and found the NEPA alternatives analysis 
insufficient. Holy Cross Neighborhood Ass'n v. U.S. Army Corps of 
Eng'rs, 2011 WL 4015694 (E.D. La. 2011). The NEPA litigation saved the 
community from the harms of disposing millions of tons of contaminated 
sediment and from having their taxpayer dollars spent on a project that 
was not needed.
    Also in Louisiana, residents in St. Tammany Parish concerned about 
aggregate wetland loss due to unchecked development were able to use 
NEPA to protect their community. See O'Reilly v. U.S. Army Corps of 
Eng'rs, 477 F.3d 225 (5th Cir. 2007). The Fifth Circuit required the 
Army Corps of Engineers to take a hard look at cumulative wetland loss 
and its consequences, including flooding and stormwater runoff, as the 
CEQ regulations require. 40 C.F.R. Sec. 1508.7. The court also 
concluded that the Corps failed to demonstrate how the mitigation 
measures would succeed and render the adverse effects insignificant. 
While the court's decision about mitigation measures were not yet 
incorporated into the CEQ regulations, the proposed Phase 2 regulations 
aim to ensure that mitigation measures identified in a NEPA process are 
completed and reduce the environmental impacts of the action.

    Question 2. Can you speak to instances in which a failure to follow 
a comprehensive environmental review process has negatively impacted a 
community?

    Answer. The Army Corps of Engineers' failure to consider climate 
change impacts when approving deep-draft dredging of the lower 
Mississippi River is having disastrous consequences for Louisiana 
residents and threatens the drinking water of nearly 1 million people. 
A wedge of saltwater is making its way up the Mississippi River from 
the Gulf of Mexico and is slated to reach the New Orleans metro area's 
Algiers plant by October 22, 2023. If the saltwater wedge reaches the 
drinking water intake, the water supply from New Orleans will likely 
become undrinkable.\1\ When evaluating deep draft dredging, the Corps 
recognized that such dredging would facilitate saltwater intrusion into 
the Mississippi River. In the Corps' latest NEPA analysis of the 
dredging from 2018, the Corps acknowledged that the dredging would 
force water plants to ``shut down operations as saltwater reaches their 
water intake facilities.'' \2\ The Corps also acknowledged, ``For 
communities at the lower reaches of the river, this shutdown could last 
longer than their storage reserves can accommodate.'' \3\ However, the 
Corps only acknowledged that the saltwater intrusion issue could affect 
residents of Plaquemines Parish. The Corps failed to analyze how 
climate change-driven changes in precipitation could lead to drought 
conditions, meaning that saltwater intrusion could leave nearly 1 
million people without safe drinking water. The Corps' mitigation plan 
to protect drinking water from encroaching saltwater was an underwater 
sill, which was overtopped on September 20.\4\ The Corps never 
identified the risk of the sill being overtopped or whether the plan to 
raise the sill, but leave a ``notch'' in the saltwater barrier sill to 
allow continued deep draft navigation, will actually protect affect 
drinking water intakes.\5\ This impending drinking water crisis in New 
Orleans stems directly from the Corps' lax NEPA review.
---------------------------------------------------------------------------
    \1\ Mike Smith, ``Pricey pipeline plan to protect New Orleans 
drinking water detailed. Officials say there's time,'' NOLA.com, Oct.3, 
2023.
    \2\ U.S. Army Corps of Engineers, ``Mississippi River Ship Channel 
Gulf to Baton Rouge, LA, Integrated General Reevaluation Report and 
Supplemental Environmental Impact Statement,'' April 2018, Page 2-23 
available at https://www.mvn.usace.army.mil/Portals/56/docs/Projects/
Miss%20Deep/ 01_MRSC_Main%20Report.pdf.
    \3\ Id.
    \4\ See Smith, ``Pricey pipeline plan to protect New Orleans 
drinking water detailed. Officials say there's time.''
    \5\ See id. (``The Corps is now raising the sill to 30 feet below 
the surface, but will keep a notice in the middle at the original 
depth'' to allow enough draft for passing ships.'').
---------------------------------------------------------------------------
    In Western New York, the U.S. Fish and Wildlife Service completed 
an environmental assessment and issued a Finding of No Significant 
Impact for an industrial wastewater pipeline through the Iroquois 
National Wildlife Refuge. The purpose of the pipeline is to incentivize 
industrial manufacturers to build on a 1,250 acre ``mega industrial 
site'' directly adjacent to the Tonawanda Seneca Nation's reservation. 
During the NEPA process, the U.S. Fish and Wildlife Service failed to 
conduct any outreach to the Tonawanda Seneca Nation and excluded them 
from the NEPA process. The NEPA process also failed to examine the 
cumulative impacts of the industrial development on the Tonawanda 
Seneca Nation, the local wildlife, and the environment. The NEPA 
process also failed to examine whether the soils in the Iroquois 
National Wildlife Refuge were appropriate for directional drilling and 
examine the risk to the Refuge from spills of drilling fluid. Despite 
the Tonawanda Seneca Nation asking the U.S. Fish and Wildlife Service 
and Secretary of the Interior Deb Haaland to withdraw the pipeline 
permit until they consulted with the Tonawanda Seneca Nation and 
completed a full environmental review, the U.S. Fish and Wildlife 
Service rejected that request and allowed the drilling to begin in late 
July 2023. In less than two months of drilling, there have already been 
two major spills of fracking fluid that have entered wetlands in the 
Iroquois National Wildlife Refuge and have had untold damage to the 
Refuge and the Tonawanda Seneca Nation, whose citizens use and enjoy 
the Refuge. The drilling is currently paused, but the U.S. Fish and 
Wildlife Service has refused to rescind the permit.
    In New Orleans after Hurricane Katrina, the Department of Veterans 
Affairs wanted to build a new hospital. The VA entered into an 
agreement with Mayor Ray Nagin to obtain a large plot of land where it 
wanted to build the hospital, even though the land encompassed an 
entire neighborhood. The neighborhood was primarily populated with 
Black residents and contained gabled Victorian homes constructed in the 
late 19th century. After the agreement was executed, the VA began the 
NEPA process for the new hospital. The VA claimed that the new 
hospital, which would have 200 beds, needed to be built on 60 acres of 
land, even though other local hospitals with the same number of beds 
were built on just a few acres. Although community groups came forward 
with other options where the hospital could be built or abandoned 
hospitals that could be modernized, the VA's NEPA analysis ignored 
those alternatives and concluded the preferred land was the only place 
where the hospital could be built. The neighborhood was destroyed, and 
the residents were relocated so that the hospital could be built in the 
VA's preferred location.
    In Erie, Pennsylvania, the failure to follow a comprehensive 
environmental review process for a highway expansion in downtown Erie 
has been devastating for local residents. The Bayfront Parkway 
separates Erie residents living downtown from the bus station, library, 
restaurants, a museum, and other recreational opportunities. Because 
many drivers use the Bayfront Parkway as a short-cut across the city, 
crossing the road was dangerous for pedestrians and cyclists. In the 
process to reimagine the Bayfront Parkway, many residents were eager to 
see a pedestrian and cyclist-friendly corridor with slower traffic and 
a narrower roadway. Instead, the Pennsylvania Department of 
Transportation, backed by local business interests, proposed an 
expanded roadway, to move cars across the waterfront quicker but making 
it even more perilous for pedestrians and cyclists. To make up for the 
increased traffic, the Department of Transportation proposed that 
someone should build a pedestrian bridge. But the pedestrian bridge was 
unfunded and not a part of the widening plan, and there was no plan of 
who would maintain the bridge during the snowy winter--or that 
residents would use the pedestrian bridge. The residents geared up to 
participate in the public comment process for the environmental 
assessment and share their frustration in the hopes of swaying the 
decision. Instead, the Federal Highway Administration signed off on 
``downscoping'' the NEPA document from an environmental assessment to a 
categorical exclusion--and then skipped the public review process and 
approved the project. The Pennsylvania Department of Transportation has 
begun expanding the roadway, which will cut off the downtown Erie 
residents from the waterfront.

    Question 3. How does and can NEPA play a positive role in advancing 
our energy development and responsibly utilizing American tax dollars?

    Answer. NEPA plays a positive role in advancing our energy 
development and responsibly using tax dollars. First, at its heart, 
NEPA's mandate that agencies ``look before they leap'' and engage in a 
robust public process means that agencies must research alternatives 
and quantify environmental harms to make more informed, better 
decisions. NEPA's requirement that agencies examine cumulative impacts 
of the action together with past, present, and reasonably foreseeable 
future actions forces agencies to take the long view in approving 
projects, like energy development, which may look individually like a 
minor issue but when taken collectively cause a significant impact. 
This directs agencies towards approving a suite of energy development 
projects that, taken together, are better for our communities, our 
environment, and our country.
    NEPA's requirements that agencies examine the direct, indirect, and 
cumulative impacts of the project on climate change, while also 
examining the impact climate change may have on the project can also 
save taxpayers money in the long run. We know that costs to adapt to 
climate change and mitigate climate change's effects will run in the 
billions of dollars. NEPA incentivizes smart, long term financial 
choices that take into account not just financial benefits of energy 
development, but the financial costs of climate harms to which the 
development may cause or contribute.

    Question 4. My friends on the other side of the aisle have claimed 
that litigation slows energy projects. What effect does NEPA have on 
litigation of major energy projects?

    Answer. The 2022 Clean Power Annual Market Report identified causes 
of delays in clean power projects. The report acknowledges that ``Solar 
accounts for 68% of delayed clean power capacity, due primarily to 
difficulty sourcing panels as a result of trade restrictions.'' \6\ 
Wind projects represent 18% of total delays, and ``causes of wind 
delays range from ongoing supply chain constraints to grid 
interconnection delays.'' \7\ The report did not identify NEPA 
litigation as a significant cause of delays in implementing clean 
energy projects.
---------------------------------------------------------------------------
    \6\ American Clean Power, Clean Power Annual Market Report 2022, 
https://cleanpower.org/wp-content/uploads/2023/05/2022-ACP-Annual-
Report_Public.pdf
    \7\ Id.
---------------------------------------------------------------------------
    NEPA encourages meaningful community engagement and public 
participation early and often during the NEPA review process. My 
experience with NEPA has taught me that when there is early engagement 
and meaningful opportunities to participate in decision-making, parties 
can reach consensus, make better decisions, and get projects built 
faster. Recent research by MIT bears this out. A 2022 MIT study 
examined fifty-three large-scale clean energy projects that were 
delayed or canceled.\8\ The study concluded that ``early engagement 
with potential local opponents can avoid extended delays or project 
cancellations.'' Robust, upfront engagement in Maryland was key to 
securing both approval for 1654 MW of offshore wind and commitments to 
ensure that the projects are constructed and operated in a responsible 
manner.
---------------------------------------------------------------------------
    \8\ Lawrence Susskind et. al. ``Sources of opposition to renewable 
energy projects in the United States,'' Energy Policy, vol 165, June 
2022 available at https://www.sciencedirect.com/science/article/pii/
S0301421522001471.
---------------------------------------------------------------------------
    Our experience at Earthjustice shows that permitting processes that 
include thorough, upfront engagement can actually speed up the 
transmission build-out and ensure that we are developing in a way that 
does not cause undue harm to communities, sensitive ecosystems, and 
cultural resources. The proposed Phase 2 regulations promote strong 
environmental review and meaningful public engagement processes to 
avoid harming communities while effectively speeding up development of 
much-needed infrastructure to enable a rapid clean energy transition.

    Question 5. How have President Biden's Permitting Action Plan and 
investments in the Inflation Reduction Act to help expedite federal 
agency permitting impacted timelines for completing environmental 
reviews and permitting processes? How are CEQ's NEPA Phase 2 revisions 
expected to affect permitting timelines?

    Answer. The Inflation Reduction Act reflects an unprecedented 
national commitment to clean power and is the largest policy investment 
in clean energy on record. As the 2022 Clean Power Annual Market Report 
predicts, ``The IRA is set to catalyze clean energy growth, ultimately 
more than tripling annual installations of wind, solar, and battery 
storage by the end of the decade.'' \9\
---------------------------------------------------------------------------
    \9\ American Clean Power, Clean Power Annual Market Report 2022, 
https://cleanpower.org/wp-content/uploads/2023/05/2022-ACP-Annual-
Report_Public.pdf
---------------------------------------------------------------------------
    The Phase 2 regulations direct agencies to actively reach out to 
Tribal governments and affected and interested members of the public. 
The Phase 2 regulations direct agencies to ``conduct early engagement 
with likely affected or interested members of the public (including 
those who might not be in accord with the action).'' By directing 
agencies to engage early with those who oppose the project or action, 
the Phase 2 regulations will reduce the likelihood that concerns can be 
addressed during the NEPA process, a better decision will be made, and 
permitting timelines can be sped up.

    Question 6. Republicans have claimed that the Biden administration 
has permitted fewer renewable energy projects than the Trump 
administration. Is this claim accurate?

    Answer. This claim is not accurate, as is reflected in the chart 
from the 2022 Clean Power Annual Market Report Mr. Loyola included in 
his testimony. The chart reflects the following ``Annual Clean Power 
Capacity Additions (MW)''

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


    In the first two years of President Biden's term, his 
administration permitted 55,000 MW of clean power. of the Trump 
administration permitted approximately 67,000 MW of clean power over 
four years. On an annual basis, President Trump's administration 
permitted approximately 16,750 MW per year during his term, compared to 
27,750 MW per year during President Biden's administration.

    Question 7. Is there anything else you would like to add?

    Answer. Yes, when agencies and project proponents meaningfully 
involve the affected community in the decision-making process and the 
NEPA review, we have seen outcomes that work for everyone. For example, 
in North Charleston, South Carolina, the City of North Charleston, the 
South Carolina State Ports Authority, and community groups like 
Lowcountry Alliance for Model Communities came together to during a 
NEPA process to ensure the community received mitigation for the 
negative impacts from development of a new container terminal at the 
former Navy base. After negotiations, the Port Authority made a $4 
million mitigation commitment to impacted North Charleston residents, 
who used the funds to hire experts to assist with environmental justice 
projects around air pollution, brownfields redevelopment, and other 
issues related to community health and safety. Involving the community 
early in the process and mitigating negative effects of projects are 
two key points in the Phase 2 Regulations. The North Charleston example 
shows how this approach can work to lead to better projects, stronger 
communities, and faster project completion.

             Questions Submitted by Representative Huffman

    Question 1. As you mentioned in your testimony, 13 species of 
salmon or steelhead in the Columbia River Basin are currently listed 
under the Endangered Species Act, including all remaining populations 
in the Snake River. The Columbia River Basin Treaty Tribes reserved the 
right to fish for these salmon forever in their treaties with the 
United States government, and yet the Nez Perce Tribe recently found 
that many sub-populations are at imminent risk of extinction. Can you 
elaborate on how the declines in salmon populations have impacted 
Tribes and the consequences of salmon extinction for those Tribes?

    Answer. The four Columbia River Basin Treaty Tribes (now known as 
the Yakama, Warm Springs, Umatilla, and Nez Perce) and other Tribal 
Nations have hunted, gathered, and fished within the Columbia River 
Basin since time immemorial. Of all the traditional foods eaten by the 
Tribes, ``salmon was the most important.'' \10\ But salmon are not just 
a source of sustenance for Indigenous peoples in the Pacific Northwest, 
they are a critical component of their culture and life ways. According 
to Donald Sampson, a former executive director of the Confederated 
Tribes of the Umatilla Indian Reservation and Columbia River Inter-
Tribal Fish Commission, ``Salmon are the centerpiece of our culture, 
religion, spirit, and indeed, our very existence . . . Our people's 
desire is simple--to preserve the fish, to preserve our way of life, 
now and for future generations.'' \11\ To guarantee their ability to 
fish for salmon in perpetuity, each of the four Columbia River Basin 
Treaty Tribes reserved the right to fish at ``all usual and accustomed 
places'' in treaties with the United States in 1855.
---------------------------------------------------------------------------
    \10\ Meyer Resources. Developed for the Columbia River Inter-Tribal 
Fish Commission. April 1999. Tribal Circumstances and Impacts of the 
Lower Snake River Project on the Nez Perce, Yakama, Umatilla, Warm 
Springs and Shoshone Bannock Tribes. https://critfc.org/wp-content/
uploads/2021/10/circum.pdf
    \11\ Id.
---------------------------------------------------------------------------
    Since the construction of the four lower Snake River dams, wild 
salmon populations have declined precipitously. Just a fraction of the 
fish that used to return to the Columbia River Basin each year do so 
today, severely limiting the number of salmon that can be harvested by 
Tribal members. Two reports published by the Columbia River Inter-
Tribal Fish Commission--the 1999 Tribal Circumstances Report and the 
2019 Tribal Perspectives Report--describe the importance of salmon and 
other native fish species to the Columbia River Basin Treaty Tribes and 
the Shoshone-Bannock Tribe and the impacts that the four lower Snake 
River dams have had on the fisheries, cultures, and economies of those 
Tribes. Importantly, they do so by highlighting the voices of Tribal 
members themselves.

    Below is a table from the 1999 report that reveals the stark 
declines in salmon harvested by each of the Tribes from contact with 
Europeans to the present day.

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


    The impact of these immense declines have been great, affecting 
not only food resources but the cultural, social, and economic well-
being of the Tribes. According to Chris Walsh, a Yakama Psycho-Social 
Nursing Specialist: ``If you lose your foods, you lose part of your 
culture--and it has a devastating effect on the psyche. You also lose 
the social interaction. When you fish, you spend time together--you 
share all the things that impact your life--and you plan together for 
the next year. Salmon is more important than just food.'' \12\ Today, 
Tribal members who would otherwise fish for economic or cultural 
benefits struggle to do so. Current poverty rates within the Columbia 
River Basin Treaty Tribes far exceed the national average and are 
actually higher for three of the four Tribes than they were in 
1999.\13\ The decrease in salmon populations already experienced by the 
Tribes has been devastating.
---------------------------------------------------------------------------
    \12\ Meyer Resources. Developed for the Columbia River Inter-Tribal 
Fish Commission. April 1999. Tribal Circumstances and Impacts of the 
Lower Snake River Project on the Nez Perce, Yakama, Umatilla, Warm 
Springs and Shoshone Bannock Tribes. https://critfc.org/wp-content/
uploads/2021/10/circum.pdf
    \13\ Columbia River Inter-Tribal Fish Commission. June 2019. Tribal 
Perspectives Report. https://critfc.org/documents/tribal-perspective-
report/
---------------------------------------------------------------------------
    Salmon extinction is not an option for the Columbia River Basin 
Treaty Tribes. In 2021, the Nez Perce Tribe presented a call to action 
to the Northwest Power and Conservation Council based on new analyses 
that found 42% of Snake River spring/summer Chinook populations are at 
or below quasi-extinction levels.\14\ It is imperative that we act now 
to avoid an irreversible decline in salmon abundance. The United States 
must do everything in its power to stop salmon extinction to save these 
incredible species and honor its treaty obligations. That includes 
breaching the lower Snake River dams.
---------------------------------------------------------------------------
    \14\ Nez Perce Tribe Department of Fisheries Resource Management. 
Snake Basin Chinook and Steelhead Quasi-Extinction Threshold Alarm and 
Call to Action. May 2021. https://www.nwcouncil.org/sites/default/
files/2021_05_4.pdf

---------------------------------------------------------------------------
                                 ______
                                 

    Dr. Gosar. I thank the gentlewoman.
    I now recognize Mr. Simms for his 5 minutes.

 STATEMENT OF SCOTT SIMMS, CEO AND EXECUTIVE DIRECTOR, PUBLIC 
                POWER COUNCIL, PORTLAND, OREGON

    Mr. Simms. Good morning, Chairman Gosar, Ranking Member 
Stansbury, and members of the Subcommittee. My name is Scott 
Simms, and I serve as the CEO and Executive Director of the 
Public Power Council, or PPC.
    PPC represents a majority of non-profit, consumer-owned 
electric utilities operating in rural and urban areas of the 
great Pacific Northwest that purchase electricity and 
transmission services from the Bonneville Power Administration, 
or BPA. And they collectively pay 70 percent of BPA's $3.9 
billion annual revenue requirement.
    Our utilities fund the nation's largest ESA effort. We have 
a keen interest in ensuring that fish mitigation measures are 
science based, cost effective, and have a clear nexus with the 
operations of the Federal Columbia River Power System, or 
FCRPS.
    We are fully committed to paying our share of mitigation 
responsibilities, but no more and no less. This balance is what 
enables PPC members to offer affordable, reliable, clean, and 
environmentally responsible power to the communities they 
serve.
    Unfortunately, the FCRPS operations have been mired by 
long-running litigation. Roughly 13 months ago, the Federal 
District Court judge overseeing litigation in the Columbia 
Basin operations approved a stay while the CEQ engaged the 
Federal Mediation and Conciliation Service, FMCS, to resolve 
the issues being litigated. While the stay was set to expire on 
August 31, 2023, the U.S. Government and the plaintiffs 
requested and the court subsequently granted a 60-day extension 
of the stay until October 31, 2023.
    So, PPC entered the CEQ-led negotiations with guarded 
optimism that the mediation process would be finally pursued in 
a fair, confidential, and collaborative manner led by skilled 
third-party mediators. Regretfully, our experience has been to 
the contrary. It has been a frustrating bureaucratic process 
with little discussion of new ideas and much less progress 
toward regional compromise. Labeling any of this as mediation 
was a sham from the beginning, and it is quite an abuse of the 
very word.
    What CEQ has done is put a thumb squarely on the scale for 
certain parties. That was evidenced by the sideboards set for 
the stay and litigation and subsequent mediation. PPC has 
repeatedly raised new ideas and proposed tangible solutions, 
yet no substantive action has come of these efforts because CEQ 
refused all offers. At most, we have basically received a pat 
on the head.
    We have serious concerns that many of the topics being 
discussed are likely outside the plaintiffs' areas of 
expertise, or, at a minimum, are topics where we have immense 
expertise that we could share. In any event, we should be in 
these discussions early, not as a last step to sign on. We are 
dismayed at what was sold to us as a solutions-based mediation 
process.
    This is detailed more explicitly in my submitted report, 
but let me just share here that we at PPC recruited credible 
third-party biologists to point out the serious flaws in a 
report CEQ conveniently floated as NOAA's so-called ``latest 
science,'' for which CEQ uses as a basis to push a specific 
agenda. This new NOAA report, ``Rebuilding Interior Columbia 
Basin Salmon and Steelhead,'' has apparently paved over NOAA's 
prior decades of established scientific evidence and record. 
CEQ probably didn't like us raising the issue of a sudden 180-
degree shift at NOAA, so we were just ignored when we first 
raised the issue, and continue to be ignored to this day.
    Let me be clear for everyone as a witness here today at 
this hearing. This so-called new NOAA report is the flimsy 
house of cards CEQ built and is trying to keep upright in order 
to justify its biased approach in this process.
    The challenges of supplying affordable, reliable 
electricity services, which is now widely considered a basic 
need for human survival, is only becoming more difficult for 
today's utilities. We also have a growing concern about 
adequately meeting the needs of vulnerable communities, which 
are intensifying in rural and urban areas alike.
    As I work toward my conclusion, let me connect some dots 
here. While this Administration contemplates operational 
changes to the dams, I must emphasize that this also has a 
devastatingly detrimental impact on system reliability. 
Ironically, it would also have a huge negative impact on 
meeting the Administration's climate goals by reducing the 
amount of clean, renewable hydropower produced. Simply put, any 
operational changes this Administration might suggest that 
would breach dams, increase spill, or draw down water would 
have grave implications for communities in the Northwest.
    A crucial component of BPA's predominant hydropower fleet 
is a target by some in this process, and that is the Lower 
Snake River dams. These dams are some of the biggest producers 
and lowest cost hydro units in BPA's Federal system. They are 
an invaluable resource for the entire West, even beyond BPA's 
territory. They also help integrate wind and solar power into 
the grid and, importantly, come to the rescue when power crises 
hit the West, which is a dynamic we are seeing more and more 
often, certainly mentioned this morning by Ranking Member 
Stansbury.
    Despite the invaluable role played by these dams, various 
special interests continue to fuel a campaign to devalue and 
even destroy them.
    Thank you for your leadership in hosting this hearing 
today. We greatly appreciate the Committee's focus on this 
critical set of issues, and seeking transparency from CEQ for 
all Americans. I would gladly answer any questions.

    [The prepared statement of Mr. Simms follows:]
  Prepared Statement of Scott Simms, CEO & Executive Director, Public 
                             Power Council

    Good morning, Chairman Gosar, Ranking Member Stansbury, and members 
of the Subcommittee. My name is Scott Simms, and I serve as the CEO and 
Executive Director of the Public Power Council (PPC).
    PPC represents the majority of the non-profit, consumer-owned 
electric utilities in the Pacific Northwest, serving people and 
businesses in Washington, Oregon, Idaho, western Montana, and parts of 
Nevada and Wyoming. These large and small utilities in rural and urban 
areas of the Great Pacific Northwest purchase electricity and 
transmission services from the Bonneville Power Administration, or 
BPA--the largest Power Marketing Agency of the four under the U.S. 
Department of Energy. These consumer-owned utilities collectively pay 
70 percent of BPA's $3.9 billion-dollar annual revenue requirement, 
with the remainder of BPA's budget covered from sales to others. All of 
BPA's consumer-owned utility customers are committed to ensuring BPA 
complies with its statutory obligation to provide the lowest possible 
rates to consumers consistent with sound business principles.
    BPA markets power from 31 federal hydroelectric dams on the 
Columbia River and its tributaries and from the Columbia Generating 
Station--a nuclear power plant located on the Hanford Site in Eastern 
Washington. BPA has more than 15,000 miles of high voltage transmission 
lines and 261 substations, operating about 75% of the total 
transmission system in the Northwest.
    As stewards focused on affordability and reliability of BPA's power 
and transmission services, PPC utilities also have a strong 
environmental interest and are committed to mitigating the impacts of 
Federal Columbia River Power System (FCRPS) operations. As the largest 
single contributor to the nation's largest ESA effort, we have a keen 
interest in ensuring that fish mitigation measures are science based, 
cost effective, and have a clear nexus with the operations of the 
FCRPS. Such measures serve dual purposes--they promote the restoration 
of the region's valued endangered and threatened species, and 
ultimately, reduce the fish and wildlife impacts and costs associated 
with FCRPS operations. We are committed to paying our full mitigation 
share--no more and no less. This balance is what enables PPC members to 
offer affordable, reliable, clean, and environmentally-responsible 
power to the communities they serve. Unfortunately, the FCRPS 
operations have been mired by long-running litigation. Roughly 13 
months ago, the federal district court judge overseeing litigation on 
the Columbia Basin System Operations approved a stay, while the Council 
on Environmental Quality (CEQ) engaged the Federal Mediation and 
Conciliation Service (FMCS) to resolve the issues being litigated. 
While the stay was set to expire on August 31, 2023, the U.S. 
government and the plaintiffs requested, and the court subsequently 
granted, a 60-day extension of the stay, until October 31, 2023.
    PPC entered these negotiations with guarded optimism that the 
mediation process would be finally pursued in a fair, confidential and 
collaborative manner, led by skilled third-party mediators. 
Regretfully, our experience has been to the contrary. It has been a 
frustrating bureaucratic process with little discussion of new ideas 
and much less progress toward a regional compromise. Confidentiality 
has been conveniently used to protect ``private caucuses'' between CEQ 
and select parties, consistently described by several credible sources 
as the states of Oregon, Washington, various Northwest tribes, and 
environmental NGO plaintiffs.
    Non-sovereign stakeholders have been left in the dark and have not 
been equal parties, despite our best efforts to advance new ideas and 
share new information, and despite the dire financial and operational 
consequences--and even health and human safety risks--we could face 
from ill-conceived ``agreements.'' Again, it's worth noting here that 
public power utilities pay the lion's share of FCRPS costs and are the 
real parties in interest. And yet, we've been walled off from the 
conversations between the CEQ and plaintiffs that inevitably involve 
future cost obligations of Northwest ratepayers either from further 
operational constraints, direct cash outlays--or both. Worse still, it 
appears that the U.S. Government is making private piecemeal deals with 
one or two parties rather than pursuing the promised balanced, 
sustainable solutions designed to bring our region--and the federal 
resources we use to keep the lights on--the much needed operational 
certainty.
    It is critical that you as members of Congress learn about this 
dynamic, because, after all, this is an oversight hearing, so here is 
my opinion and observation on the process, especially since I have been 
through a number of federal and state processes in my 25+ year career 
in the Northwest energy industry. Our plea is for you to get involved.
    First, branding any of this as ``mediation'' was a sham from the 
beginning, with CEQ putting its thumb squarely on the scale for certain 
parties. That was evidenced by the ``sideboards'' set for the stay and 
subsequent ``mediation.'' I can also tell you that PPC has repeatedly 
raised new ideas and proposed solutions. While those have been aired in 
two ``private caucuses'' with the federal government, at no time have 
they been scheduled for discussion among the broader group, nor has an 
anonymous survey been held to assess broader interest. At most, we feel 
like we have received a pat on the head and are then expected to sit 
quietly and watch.
    While we are not among the ``inner circle'' despite being the 
obvious funders of any commitments placed on BPA, we have learned from 
public sources that some of the favored parties were engaging in 
private sessions with the U.S. Government (USG) and even ``exchanging 
papers'' in recent months on some of the issues within the broader 
agenda. We have serious concerns that these topics are likely outside 
the plaintiffs' areas of expertise or, at a minimum, are topics where 
we have immense expertise that we could share and, therefore, should be 
involved in the discussions early on, not as a last step to ``sign 
on.'' We're dismayed at what was sold to us as a solutions-based 
mediation process.
    A second, especially problematic issue in this process is that we 
are uncertain whether the inputs PPC has worked tirelessly to provide 
in good faith throughout the many months of work are being reviewed or 
considered by the USG. For instance, in our collective utility industry 
and river navigation interest efforts to engage in the process, two 
detailed reports and a technical letter raising extensive issues and 
considerations were among the materials PPC submitted to the USG: one 
recent report was a scientific literature review addressing the 
``delayed mortality'' hypothesis, and the other report was a 
comprehensive study on the potential impacts of breaching, titled: 
``Regional & National Impacts Triggered by Breaching Lower Snake River 
Dams: Summary of Transportation, Climate and Social Justice Concerns.'' 
Additionally, a little more than one year ago, PPC submitted (and has 
received no response to) a detailed letter citing official technical 
and scientific documents that pointed out the many inaccuracies and 
shortcomings of NOAA's ``Rebuilding Interior Columbia Basin Salmon and 
Steelhead'' draft report, which has been used extensively as a basis 
for CEQ's breaching advocacy efforts during the stay in litigation.
    My job is to represent the utilities of the Northwest and let me be 
clear that the impact of BPA power rates is not a matter of dry 
economics for us. It is about the people in our communities and the 
ability to supply this human need. The Northwest public power utilities 
I represent are not-for-profit organizations dedicated to providing 
their communities with affordable, reliable, and environmentally 
responsible electricity at cost. Unlike investor-owned utilities, there 
are no profit margins or shareholders to absorb increased costs.
    Any costs passed to the utility are passed on to the customers, in 
many cases, the most economically vulnerable communities in the 
Northwest. Given our diverse membership, this hits differently 
throughout the region. But whether urban or rural, and no matter which 
Northwest state, our communities and their utilities are feeling the 
pressure. PPC member utilities aren't monolith, faceless corporations. 
They are non-profit entities run by the communities they serve and 
today are managing far more than the bystander might see. For instance, 
our utilities are handling such critical issues as balancing tens of 
millions of dollars unpaid bills from tens of thousands of customers. 
They also are trying to keep the power flowing while addressing needs 
of vulnerable communities, including Tribal communities throughout the 
Columbia River Basin and in places physically distant from the Columbia 
River, but still highly dependent on its reliable, low-cost power. 
Every utility we work with has a list of gut-wrenching stories in which 
families and businesses are making incredibly difficult decisions--such 
as choosing to pay a past-due bill or choosing to serve their kids a 
meal.
    Meanwhile, the challenges of supplying affordable, reliable 
electricity services--which is now widely considered a basic need for 
human survival--is only becoming more difficult for today's utilities. 
Supply chain and labor challenges are just the tip of the iceberg, as 
our industry is also battling a dwindling supply of dependable 24/7 
electricity sources at a time when fleet electrification and other new 
consumer demands are growing and while new clean energy regulations are 
being phased in. And if that weren't enough, extreme heat and wildfires 
and dangerous cold weather events are now more regularly gripping our 
country's communities, and we've only begun to see the devastating 
impacts of this dangerous combination of factors as our utilities 
struggle to deliver this basic human need.
    To fully understand the gravity of what we face if our electricity 
services become less reliable and/or more expensive, I would encourage 
you to turn to CEQ's own interactive ``Climate and Economic Justice 
Screen Tool,'' which identifies census tracts that are ``overburdened 
and underserved.'' While we understand this Administration's commitment 
to environmental stewardship, I would be remiss if I did not emphasize 
that the direction we are headed in the FMCS/CEQ mediation contradicts 
these goals. I must stress any increased funding from BPA comes on the 
backs of those who can least afford to pay. I should also note that the 
vast majority of fish mitigation efforts in the Columbia-Snake River 
Systems is paid for by electric ratepayers--despite the considerable 
economic benefits to the broader taxpayers, like flood control and 
commercial salmon harvest.
    I mentioned briefly that reliability is paramount in these 
communities. Let's connect some dots here. While this Administration 
contemplates operational changes to the dams, I must emphasize that 
this also has a devastatingly detrimental impact on system reliability. 
Ironically, it would also have a huge negative impact on meeting the 
Administration's climate goals by reducing the amount of clean, 
renewable hydropower produced. Any operational changes this 
Administration might suggest that would breach dams, increase spill, or 
draw down water would have grave implications for communities in the 
Northwest.
    A crucial component of BPA's predominant hydropower fleet is the 
role of the Lower Snake River Dams (LSRDs). Completed in the 1970s, 
these dams are some of the biggest producers and lowest-cost hydro 
units in BPA's federal system. At 1,000 average megawatts and an 
ability to generate for peak periods at about double that, they are an 
invaluable resource for not just consumer-owned utilities but for 
integrating wind and solar and, importantly, for coming to the rescue 
when power crises hit the West.
    Despite the invaluable role played by these dams, various special 
interests continue to fuel a campaign that seeks to convince the 
Administration to remove or devalue these vital resources. Rash 
decisions to remove these hydro projects pose devastating consequences. 
The LSRDs regularly are the defining line between keeping the power 
flowing and parts of the West being plunged into rolling blackouts. 
Case in point: last Labor Day--just over a year ago--the West was 
locked in a heatwave, and the Northwest was exporting electricity to 
the full extent it could to California and the Southwest. If the LSRDs 
were taken out of the mix, that part of the West would have gone into 
rolling blackouts, and things would have been more critical for us in 
the Northwest. We estimate that if the Northwest had been just ten 
degrees warmer that weekend--we were hot but not scorching--we wouldn't 
have been able to help the Southwest, surely sealing their fate for no 
air conditioning and total darkness. This is how close we are getting 
to the system we have--it's an annual gamble in the winter and summer 
extremes. We need more stable, available generation capacity, not less 
of it. Remember this point, too, as our nation explores relying on 
electricity to play an even more prominent role in our lives, such as 
through vehicle electrification.
    The Biden Administration has recently released two documents 
regarding the Lower Snake River Dams. In July 2022, an analysis was 
prepared by outside consultants on behalf of the Bonneville Power 
Administration, exploring the costs and environmental impacts of grid 
reliability through several scenarios, including the removal of the 
LSRDs. The result would require tens of billions of dollars in funding 
and an expected 65% rate increase to power customers in the Northwest. 
The report concluded that there was no possible way to remove the LSRDs 
without jeopardizing grid reliability. The National Oceanic and 
Atmospheric Administration (NOAA) released the second report and called 
for at least partial removal of the LSRDs. The NOAA report was prepared 
in conjunction with plaintiffs who sought removal of the LSRDs, was 
anonymously produced, was not peer-reviewed, and had glaring biological 
errors. Yet that report is increasingly cited as the ``best and latest 
science.'' I mentioned that report earlier--we have consistently raised 
questions about the integrity and purpose of that report, yet have only 
been met with silence from CEQ.
    Thank you for your leadership and for hosting this hearing today. 
We greatly appreciate the Committee's focus on this critical set of 
issues and seeking transparency for CEQ for all Americans. I would 
gladly answer any questions.

                                 ______
                                 

    Dr. Gosar. Thank you, Mr. Simms.
    I now recognize Mr. Lewis for his 5 minutes.

STATEMENT OF MARLO LEWIS, SENIOR FELLOW, COMPETITIVE ENTERPRISE 
                   INSTITUTE, WASHINGTON, DC

    Mr. Lewis. Chairman Gosar, Ranking Member Stansbury, and 
honorable members of this Subcommittee, thank you for the 
opportunity to testify on government overreach at CEQ. I am 
Marlo Lewis, an energy policy analyst at the non-profit Free 
Market Competitive Enterprise Institute. My testimony develops 
three main points.
    First, CEQ's attempt to align NEPA project reviews with the 
Administration's climate policy agenda is unlawful under the 
Supreme Court's Major Questions Doctrine. The proposed 
alignment entails a major shift in national policy, yet it 
lacks anything like a clear congressional authorization. The 
terms ``climate,'' ``global warming,'' ``greenhouse,'' or 
``carbon'' occur nowhere in NEPA.
    CEQ's January 2023 proposed guidance on greenhouse gas 
emissions concedes that NEPA does not require agencies to 
prioritize climate change mitigation. But then, in the same 
breath, CEQ gives agencies their marching orders: ``In line 
with the urgency of the climate crisis, agencies should use 
NEPA to help inform decisions that align with climate change 
commitments and goals.'' Footnotes to this and similar passages 
reveals that agencies are to align NEPA proceedings with 
President Biden's Paris Agreement pledge to reduce U.S. 
emissions 50 to 52 percent below 2005 levels by 2030, and with 
the net-zero 2050 target.
    Now, someone might say, well, that is just guidance, it is 
not legally binding. But executive agencies typically follow 
presidential orders. Thus, when finalized, the guidance will, 
in practice, bind agency actions until it is overturned in 
court or repealed by a future administration. Moreover, CEQ has 
big plans for the GHG guidance. In the Council's July 2023 
proposed NEPA implementing regulations, CEQ proposes ``to 
codify the guidance in whole or part.''
    Thus, both effectively and formally, CEQ aims to require 
agencies to vet project proposals in light of the 
Administration's aggressive GHG reduction targets. A net-zero 
aligned permitting process would be adverse to any project 
anticipated to increase emissions, either directly or by 
inducing economic growth.
    CEQ flouts West Virginia v. EPA. Just as the EPA's Clean 
Power Plan attempted without clear authorization to suppress 
investment in GHG-emitting power plants, so CEQ's proposed 
guidance attempts without clear authorization to suppress 
investment in GHG-emitting infrastructure. No statute passed by 
Congress makes the President's Paris pledge the law of the 
land. None authorizes agencies to use net-zero as a factor in 
permitting decisions.
    My testimony's second point is that a net-zero aligned NEPA 
process is unlawful on statutory grounds. NEPA is concerned 
with agency actions ``significantly affecting the quality of 
the human environment.'' It is well known, and CEQ has 
acknowledged since 2010, that the GHG emissions of even the 
largest infrastructure project have no significant impact on 
the quality of the human environment.
    Finally, my testimony disputes CEQ's claim that America 
``faces a profound climate crisis, allowing little time left to 
avoid a dangerous, potentially catastrophic climate 
trajectory.'' That claim conflicts with 50 years of dramatic 
improvements in global life expectancy, per capita income, food 
security, and various health-related metrics.
    Of particular relevance, the global annual average number 
of climate-related deaths per decade has declined by 96 percent 
since the 1920s. Factoring in population growth, the average 
person's risk of dying from extreme weather has declined by 
more than 99 percent. Similarly, global weather-related losses 
per exposed GDP have declined about fivefold since the 1980s. 
In short, there is no bona fide emergency, such as might seem 
to justify the Council's overreach as ``a desperate measure for 
desperate times.''
    Thank you very much, and I look forward to your questions.

    [The prepared statement of Mr. Lewis follows:]
  Prepared Statement of Marlo Lewis, Jr., Senior Fellow in Energy and 
      Environmental Policy, Competitive Enterprise Institute (CEI)

Summary

     CEQ's strategy to shift investment away from fossil-fuel 
            infrastructure by `aligning' project reviews with the Biden 
            administration's climate agenda lacks a clear congressional 
            authorization. It is unlawful and vulnerable to challenge 
            under the Supreme Court's major-questions doctrine.

     The greenhouse gas emissions of even the largest 
            infrastructure projects have no detectable climate change 
            impacts. Consequently, such emissions are not 
            ``significant'' effects under NEPA.

     Climate change is not a crisis. Hence, no bona fide 
            emergency exists such as might justify the Council's 
            overreach as a `desperate measure for desperate times.'

I. Introduction

    Chair Gosar, Ranking Member Stansbury, and Members of the 
Subcommittee on Oversight and Investigations, thank you for inviting me 
to testify on ``systemic government overreach'' at the Council on 
Environmental Quality (CEQ). Today's hearing spotlights a current 
example of a ``recurring problem'' identified by the Supreme Court in 
West Virginia v. EPA: ``agencies asserting highly consequential power 
beyond what Congress could reasonably be understood to have granted.'' 
\1\
---------------------------------------------------------------------------
    \1\ West Virginia v. EPA, 142 S. Ct. 2587, 2609 (2022).
---------------------------------------------------------------------------
    The National Environmental Policy Act (NEPA),\2\ enacted on January 
1, 1970, is a procedural statute intended to ensure that federal 
agencies examine the potential environmental impacts of proposed 
actions before deciding, for example, to approve construction of 
infrastructure projects.\3\
---------------------------------------------------------------------------
    \2\ The text of NEPA as amended through P.L. 118-5, Enacted June 3, 
2023, is available at https://www.energy.gov/sites/default/files/2023-
08/NEPA%20reg%20amend%2006-2023.pdf.
    \3\ Code of Federal Regulations, Title 40, Chapter V, Subchapter A, 
Part 1500, https://www.ecfr.gov/current/title-40/chapter-V/subchapter-
A/part-1500.
---------------------------------------------------------------------------
    Through its proposed January 9 NEPA guidance on consideration of 
greenhouse gases and climate change (``Proposed Guidance'') \4\ and 
July 31 proposed Phase 2 NEPA implementing regulations (``Proposed 
Rule''),\5\ CEQ directs agencies to use NEPA as a climate policy 
framework--a purpose for which the statute was not designed and which 
Congress has not subsequently authorized.
---------------------------------------------------------------------------
    \4\ Council on Environmental Quality (CEQ), National Environmental 
Policy Act Guidance on Consideration of Greenhouse Gas Emissions and 
Climate Change, 88 FR 1196, January 9, 2023, https://www.govinfo.gov/
content/pkg/FR-2023-01-09/pdf/2023-00158.pdf.
    \5\ CEQ, National Environmental Policy Act Implementing Regulations 
Phase 2, Proposed Rule, 88 FR 49924, July 31, 2023, https://
www.govinfo.gov/content/pkg/FR-2023-07-31/pdf/2023-15405.pdf.
---------------------------------------------------------------------------
II. Flouting West Virginia v. EPA

    CEQ acknowledges that ``Neither NEPA, the CEQ Regulations, or this 
guidance require the decision maker to select the alternative with the 
lowest net GHG emissions or climate costs or the greatest net climate 
benefit.'' But then, in the same breath, CEQ proceeds to give agencies 
their marching orders: ``in line with the urgency of the climate 
crisis, agencies should use the information provided through the NEPA 
process to help inform decisions that align with climate change 
commitments and goals.'' \6\
---------------------------------------------------------------------------
    \6\ 88 FR 1196, 1204.
---------------------------------------------------------------------------
    Which commitments and goals? The footnote at the end of the 
sentence just quoted references the April 22, 2021 White House Fact 
Sheet setting forth President Biden's Paris Agreement pledge to reduce 
U.S. emissions 50-52 percent below 2005 levels by 2030. The same 
document reaffirms the President's goal of achieving economy-wide net-
zero emissions by 2050.\7\
---------------------------------------------------------------------------
    \7\ White House, FACT Sheet: President Biden Sets 2030 Greenhouse 
Gas Pollution Reduction Target Aimed at Creating Good-Paying Union Jobs 
and Securing U.S. Leadership on Clean Energy Technologies, April 22, 
2021, https://www.whitehouse.gov/briefing-room/statements-releases/
2021/04/22/fact-sheet-president-biden-sets-2030-greenhouse-gas-
pollution-reduction-target-aimed-at-creating-good-paying-union-jobs-
and-securing-u-s-leadership-on-clean-energy-technologies/.
---------------------------------------------------------------------------
    In another passage, the Proposed Guidance ``encourages agencies to 
mitigate GHG emissions associated with their proposed actions to the 
greatest extent possible, consistent with national, science-based GHG 
reduction policies established to avoid the worst impacts of climate 
change.'' \8\ The footnote at the end of that sentence also references 
the April 22, 2021 White House Fact Sheet.
---------------------------------------------------------------------------
    \8\ 88 FR 1196, 1197.
---------------------------------------------------------------------------
    Note also that the phrase ``science-based GHG reduction policies 
established to avoid the worst impacts of climate change'' is code for 
NetZero agenda, which seeks to virtually eliminate economy-wide 
greenhouse gas emissions by 2050 (IPCC).\9\ There is as yet no known 
way to achieve net-zero emissions by 2050 without compromising economic 
growth, household purchasing power, affordable automobility, and 
electric power reliability.\10\
---------------------------------------------------------------------------
    \9\ IPCC, Special Report on Global Warming of 1.5+C, Chapter 2, p. 
2, https://www.ipcc.ch/site/assets/uploads/sites/2/2022/06/
SR15_Chapter_2_LR.pdf.
    \10\ Kevin Dayaratna, Katie Tubb, and David Kreutzer, ``The 
Unsustainable Costs of President Biden's Climate Agenda,'' Heritage 
Foundation, June 16, 2022, https://www.heritage.org/energy-economics/
report/the-unsustainable-costs-president-bidens-climate-agenda; Daniel 
Turner and Kent Lassman, ``What the Green New Deal Could Cost a Typical 
Household,'' Competitive Enterprise Institute, July 29, 2019, https://
cei.org/sites/default/files/Daniel_Turner_and_Kent_ 
Lassman_What_the_Green_New_Deal_Could_Cost_a_Typical_Family.pdf; 
Francis Menton, The Energy Storage Conundrum, The Global Warming Policy 
Foundation, Briefing 61, 2022, https://www.thegwpf.org/content/uploads/
2022/11/Menton-Energy-Storage-Conundrum.pdf.
---------------------------------------------------------------------------
    A bit later on the same page, CEQ suggests that by promoting 
``Accurate and clear climate change analysis,'' the guidance ``Enables 
agencies to make informed decisions to help meet applicable Federal, 
State, Tribal, regional, and local climate action goals.'' \11\ The 
footnote at the end of that sentence states: ``For example, the United 
States has set an economy-wide target of reducing its net GHG emissions 
by 50 to 52 percent below 2005 levels in 2030. See United Nations 
Framework Convention on Climate Change (UNFCC), U.S. Nationally 
Determined Contribution (Apr. 20, 2021), https://unfccc.int/NDCREG.''
---------------------------------------------------------------------------
    \11\ 88 FR 1196, 1197.
---------------------------------------------------------------------------
    Some may say that guidance is just a statement of administration 
policy and lacks the binding force of a regulation. But executive 
agencies are expected to follow the President's orders. Moreover, 
Proposed Rule reveals that CEQ has big plans for the Proposed Guidance. 
Namely, ``CEQ proposes to incorporate some or all of the 2023 GHG 
guidance, which would require making additional changes in the final 
rule to codify the guidance in whole or part, as is or with changes, 
based on the comments CEQ receives on this proposed rule.'' \12\
---------------------------------------------------------------------------
    \12\ 88 FR 49924, 49945.
---------------------------------------------------------------------------
    This is a clear case of systemic overreach. President Biden's 
pledges under the Paris Agreement, a treaty never submitted to the 
Senate for its constitutional advice and consent, do not enlarge or 
modify any federal agency's statutory powers or obligations. No statute 
passed by Congress, including the Inflation Reduction Act, makes the 
President's Paris pledges the law of the land. None authorizes agencies 
to use project reviews and permitting decisions to advance the NetZero 
agenda.
    In West Virginia v. EPA (2022), the Supreme Court vacated the 
Environmental Protection Agency's Clean Power Plan (CPP) on major-
questions grounds. The CPP attempted to settle a major question of 
public policy--whether the U.S. government should force a national 
shift from fossil fuel-generation to renewable-generation--without a 
clear authorization from Congress. The Court granted Cert due to the 
obvious fact that the EPA had claimed to find in a long-extant statute 
an unheralded power to restructure the U.S. electricity sector but 
could identify no language in the CPP's putative statutory basis--
section 111(d) of the Clean Air Act--clearly authorizing such a 
policy.\13\
---------------------------------------------------------------------------
    \13\ W. Virginia v. EPA, 142 S. Ct. 2587 (2022).
---------------------------------------------------------------------------
    NEPA, too, is a long-extant statute. Claims that NEPA proceedings 
should suppress investment in fossil fuel infrastructure are of recent 
vintage, and cannot be squared with public convenience and necessity 
determinations under the Natural Gas Act (NGA). The NGA directs the 
Federal Energy Regulatory Commission (FERC) to follow NEPA when 
reviewing proposed natural gas infrastructure projects. Using NEPA to 
reject natural gas infrastructure projects based on climate concerns 
would conflict with the NGA's ``principal purpose,'' which is to 
``encourage the orderly development of plentiful supplies of 
electricity and natural gas at reasonable prices.'' \14\
---------------------------------------------------------------------------
    \14\ NAACP v. FPC, 425 U.S. 662 (1976).
---------------------------------------------------------------------------
    Far from NEPA containing a clear statement authorizing its use to 
make climate policy, the words ``climate,'' ``carbon,'' ``greenhouse,'' 
``global,'' and ``warming'' do not occur in the statute. Just as the 
CPP attempted without clear authorization to block investment in GHG-
emitting powerplants, so CEQ's Proposed Guidance and Proposed Rule 
attempt without clear authorization to block investment in GHG-emitting 
infrastructure projects. Such projects include gas and oil pipelines, 
obviously, but also potentially any infrastructure that increases 
emissions by inducing economic growth.\15\
---------------------------------------------------------------------------
    \15\ ``Indirect [environmental] effects may include growth-inducing 
effects and other effects related to induced changes in the pattern of 
land use, population density or growth rate, and related effects on air 
and water and other natural systems, including ecosystems.'' 88 FR 
49924, 49986.
---------------------------------------------------------------------------
III. Project-Specific GHG Emissions Are Not ``Significant'' Effects 
        under NEPA
    CEQ contends that ``Climate change is a fundamental environmental 
issue, and its effects on the human environment fall squarely within 
NEPA's purview.'' \16\ However, NEPA is concerned with agency actions 
``significantly affecting the quality of the human environment.'' 42 
U.S.C. Sec. 4332. It is well-known--and CEQ has acknowledged many 
times--that the GHG emissions of even the largest infrastructure 
project has no measurable, traceable, or verifiable impacts on the 
quality of the human environment, much less a significant impact.
---------------------------------------------------------------------------
    \16\ 88 FR 1196, 1197.
---------------------------------------------------------------------------
Illusory Thresholds of Meaningfulness and Significance
    Both the Obama and Trump CEQs acknowledged that individual projects 
do not discernibly influence global climate change, beginning with 
CEQ's 2010 Draft NEPA Guidance on Greenhouse Gas Emissions and Climate 
Change Effects. The document noted a stark difference between GHG 
emission sources and non-GHG emission sources: ``From a quantitative 
perspective, there are no dominating sources and fewer sources that 
would even be close to dominating total GHG emissions.'' \17\ Which of 
the large universe of non-dominating sources should be covered?
---------------------------------------------------------------------------
    \17\ CEQ, Draft NEPA Guidance on Consideration of the Effects of 
Climate Change and Greenhouse Gas Emissions February 18, 2010, p. 2, 
https://obamawhitehouse.archives.gov/sites/default/files/microsites/
ceq/20100218-nepa-consideration-effects-ghg-draft-guidance.pdf 
(hereafter CEQ, 2010 Draft GHG Guidance).
---------------------------------------------------------------------------
    The 2010 Draft GHG Guidance proposed that 25,000 tons or more of 
annual carbon dioxide-equivalent (CO2e) emissions could 
provide ``an indicator that a quantitative and qualitative assessment 
may be meaningful to decision makers and the public.'' \18\ However, 
CEQ immediately clarified that it was not making a claim about climatic 
impact: ``CEQ does not propose this as an indicator of a threshold of 
significant effects, but rather as an indicator of a minimum level of 
GHG emissions that may warrant some description in the appropriate NEPA 
analysis for agency actions involving direct emissions of GHGs.'' \19\
---------------------------------------------------------------------------
    \18\ CEQ, 2010 Draft GHG Guidance, p. 2.
    \19\ CEQ, 2010 Draft GHG Guidance, p. 2.
---------------------------------------------------------------------------
    The 2010 Draft Guidance further stated: ``CEQ does not propose this 
[25,000 ton] reference point as an indicator of a level of GHG 
emissions that may significantly affect the quality of the human 
environment.'' Lest anyone mistakenly infer climatic significance, CEQ 
reiterated: ``However, it is not currently useful for the NEPA analysis 
to attempt to link [proposed projects to] specific climatological 
changes, as such direct linkage is difficult to isolate and to 
understand.'' \20\
---------------------------------------------------------------------------
    \20\ CEQ, 2010 Draft GHG Guidance, p. 3.
---------------------------------------------------------------------------
    Stakeholders were confused. How can NEPA analysis of a project 
emitting 25,000 tons of greenhouse gases per year be ``meaningful'' if 
that quantity of emissions is not environmentally significant? \21\
---------------------------------------------------------------------------
    \21\ CEQ, Revised Draft Guidance for Federal Departments and 
Agencies on Consideration of Greenhouse Gas Emissions and the Effects 
of Climate Change in NEPA Reviews, 79 FR 77802, 77825, December 24, 
2014, https://www.govinfo.gov/content/pkg/FR-2014-12-24/pdf/2014-
30035.pdf.
---------------------------------------------------------------------------
    CEQ's 2014 Draft GHG Guidance devoted several pages to the issue 
without resolving it. CEQ again proposed a 25,000 metric ton reference 
point while disclaiming an intent to make a ``determination of 
significance.'' \22\ Rather, the significance of an agency action 
depends on multiple factors, such as ``the degree to which the proposal 
affects public health or safety, the degree to which its effects on the 
quality of the human environment are likely to be highly controversial, 
and the degree to which its possible effects on the human environment 
are highly uncertain or involve unique unknown risks.'' \23\
---------------------------------------------------------------------------
    \22\ 79 FR 77802, 77810.
    \23\ 79 FR 77802, 77810.
---------------------------------------------------------------------------
    However, that restates rather than resolves the perplexity. The 
degree to which GHG emissions from an individual project affect public 
health and safety is for all practical purposes zero. The climatic 
insignificance of individual projects is non-controversial and highly 
certain. Greenhouse gas emissions from individual projects are not 
suspected of posing unique unknown risks.
    After wrestling with comments ranging from `no project-level 
emissions are big enough to quantify' to `no project-level emissions 
are too small to quantify,' CEQ judged that a 25,000-ton disclosure 
threshold is ``1) low enough to pull in the majority of large 
stationary sources of greenhouse gas emissions, but also 2) high enough 
to limit the number of sources covered that state and local air 
pollution permitting agencies could feasibly handle.'' \24\ In other 
words, administrative convenience rather than science would determine 
the cutoff.
---------------------------------------------------------------------------
    \24\ 79 FR 77802, 77818.
---------------------------------------------------------------------------
    Then, two years later, the final 2016 GHG guidance silently dropped 
the 25,000-ton threshold. The whole topic disappeared without a word of 
explanation or comment. Perhaps CEQ just gave up trying to explain how 
quantifying emissions that are not climatically ``significant'' could 
still be ``meaningful.'' \25\
---------------------------------------------------------------------------
    \25\ CEQ, Final Guidance for Federal Departments and Agencies on 
Consideration of Greenhouse Gas Emissions and the Effects of Climate 
Change in National Environmental Policy Act Reviews, August 1, 2016, 
https://ceq.doe.gov/docs/ceq-regulations-and-guidance/nepa_final_ghg_ 
guidance.pdf (hereafter CEQ, 2016 Final GHG Guidance).
---------------------------------------------------------------------------
False Proxies
    Although the climatic insignificance of project-related emissions 
has been Council's consistent view since 2010, CEQ in 2014 continued to 
propose and in 2016 required agencies to quantify facility-level GHG 
emissions, and use that information to evaluate proposed actions, 
alternatives, and mitigation measures.
    Based on what scientific rationale? CEQ argued that ``projection of 
a proposed action's direct and reasonably foreseeable indirect GHG 
emissions may be used as a proxy for assessing potential climate 
effects.'' \26\ That is misleading at best.
---------------------------------------------------------------------------
    \26\ CEQ, 2010 Draft GHG Guidance, p. 3; 79 FR 77825; CEQ, 2016 
Final GHG Guidance, pp. 4, 10.
---------------------------------------------------------------------------
    A proxy voter can cast a real, countable, ballot for an absentee 
voter. Data from tree rings, ice cores, fossil pollen, ocean sediments, 
and corals can be calibrated to instrumental data and then serve 
(albeit imperfectly) as proxies for climatic conditions in pre-
industrial times. In contrast, no testable, measurable, or otherwise 
observable relationship exists between project-level GHG emissions and 
climate change effects. Imaginary proxies are not proxies.
    CEI has made that point in previous comments to the CEQ. Maybe that 
is why the Proposed Guidance says nothing about proxies.
    The Proposed Guidance declines to propose ``any particular quantity 
of GHG emissions as `significantly' affecting the quality of the human 
environment.'' \27\ That avoids the problem of having to defend the 
climatic ``significance'' of whatever reporting threshold is chosen. 
But that raises another problem. The absence of any tonnage threshold 
would seem to imply that no quantity of CO2 emissions is too 
small to be estimated, reported, and mitigated. Neither science nor 
benefit-cost analysis supports such a policy.
---------------------------------------------------------------------------
    \27\ 88 FR 1196, 1200.
---------------------------------------------------------------------------
Permitting Policy Is Not Climatically Significant
    Perhaps CEQ believes that a GHG-focused permitting policy could 
significantly affect the quality of the human environment, even if 
individual permitting decisions cannot. The Proposed Guidance states: 
``Major Federal actions may result in substantial GHG emissions or 
emissions reductions, so Federal leadership that is informed by sound 
analysis is crucial to addressing the climate crisis.'' \28\ In fact, 
not even adoption of a GHG-centric permitting regime would discernibly 
affect global warming and any associated climate impacts.
---------------------------------------------------------------------------
    \28\ 88 FR 1196, 1197.
---------------------------------------------------------------------------
    For example, a 2022 Heritage Foundation analysis shows that a 
complete ban on the construction of new natural gas pipelines would 
achieve a negligible 0.74 percent reduction in U.S. annual 
CO2 emissions through 2050 and an undetectable 0.069+C 
reduction in global temperatures through 2100.\29\ Those conclusions 
are based on a clone of the U.S. Energy Information Administration's 
(EIA's) National Energy Modeling System (NEMS) and the EPA's Model for 
the Assessment of Greenhouse Induced Climate Change (MAGICC).\30\
---------------------------------------------------------------------------
    \29\ 0.069+C is smaller than the 0.11+C standard deviation for 
estimating changes in annual average global surface temperatures. J. 
Hansen, et. al. 1999. GISS Analysis of Surface Temperature Change. 
Journal of Geophysical Research, Vol. 104, No. D24, 30,997-31,022, 
https://agupubs.onlinelibrary.wiley.com/doi/pdf/10.1029/1999JD900835.
    \30\ Comments submitted by Patrick Michaels, Kevin Dayaratna, and 
Marlo Lewis, Federal Energy Regulatory Commission, Order on Draft 
Policy Statements, Docket No. PL21-3-000, March 24, 2022, https://
cei.org/wp-content/uploads/2022/04/CEI-Comments-Michaels-Dayaratna-
Lewis-Docket-No.-PL21-3-000-April-25-2022.pdf.
---------------------------------------------------------------------------
CEQ's Rebuttal: A Response

    While disavowing an attempt to establish a particular quantity of 
emissions as climatically significant, CEQ insists that NEPA ``requires 
more than a statement that emissions from a proposed Federal action or 
its alternatives represent only a small fraction of global or domestic 
emissions.'' That tells us nothing ``beyond the nature of the climate 
change challenge itself--the fact that diverse individual sources of 
emissions each make a relatively small addition to global atmospheric 
GHG concentrations that collectively have a large effect.'' \31\
---------------------------------------------------------------------------
    \31\ 88 FR 1196, 1201.
---------------------------------------------------------------------------
    Respectfully, CEQ ignores the obvious. The ``nature of the climate 
challenge'' is what renders scrutiny of project-level GHGs a waste of 
time and effort. Attempting to solve the ``climate change challenge'' 
one project at a time is like trying to drain a swimming pool one 
thimbleful at a time. It is a fool's errand.
    Unless the real objectives are political, such as promoting climate 
angst, mobilizing activists, and expanding government control of the 
economy.
    CEQ states that although ``individual sources of emissions each 
make relatively small additions to global atmospheric GHG 
concentrations,'' the myriad diverse sources ``collectively have large 
effect.'' \32\ The policy implication is obvious: To mitigate ``large 
effect,'' permission should be denied to as many sources as possible--
ideally to all.
---------------------------------------------------------------------------
    \32\ 88 FR 1196, 1201.
---------------------------------------------------------------------------
    The chief problem with that policy--aside from the enormous 
economic losses it would entail--is that Congress has not authorized 
it. CEQ should take great care not to encourage agencies to do 
piecemeal what they clearly lack authority to do at the pace and scale 
dictated by the NetZero agenda.
IV. No Bona Fide Climate Emergency

    CEQ's core rationale for requiring agencies to consider GHG 
emissions in NEPA proceedings is the opinion that America ``faces a 
``profound climate crisis and there is little time left to avoid a 
dangerous--potentially catastrophic--climate trajectory.'' \33\
---------------------------------------------------------------------------
    \33\ 88 FR 1196, 1197; 88 FR 49924, 49928.
---------------------------------------------------------------------------
    That is incorrect. If climate change were a global ecological and 
economic crisis, we would expect to find evidence of declining health, 
welfare, and environmental quality over the past 50 years. Instead, we 
find dramatic improvements in global life expectancy, per capita 
income, food security, crop yields, and various health-related 
metrics.\34\ Disease mortality rates increased after January 2020 but 
that was due to the COVID-19 pandemic,\35\ not climate change.
---------------------------------------------------------------------------
    \34\ Our World in Data, https://ourworldindata.org/.
    \35\ Our World in Data, Cumulative Deaths from All Causes Compared 
to Projection Based on Previous Years, Per Million People, Sep. 11, 
2022, https://ourworldindata.org/grapher/cumulative-excess-deaths-per-
million-covid?time=2022-09-11&country=MEXPERFRABRA 
USAGBRBGRISRAUS.
---------------------------------------------------------------------------
Increasing Climate Safety
    Of particular relevance, the average annual number of climate-
related deaths per decade has declined by 96 percent during the past 
hundred years--from about 485,000 deaths annually in the 1920s to 
18,362 per year in 2010-2019.\36\ This spectacular decrease in 
aggregate climate-related mortality occurred despite a fourfold 
increase in global population. That means the individual risk of dying 
from extreme weather events declined by 99.4 percent over the past 100 
years.\37\ Far from being an impediment to such progress, fossil fuels 
were its chief energy source.\38\
---------------------------------------------------------------------------
    \36\ Bjorn Lomborg, ``We're Safer from Climate Disasters than Ever 
Before,'' Wall Street Journal, November 3, 2021, https://www.wsj.com/
articles/climate-activists-disasters-fire-storms-deaths-change-cop26-
glasgow-global-warming-11635973538; ``Fewer and Fewer People Die from 
Climate-Related Disasters,'' Facebook, https://www.facebook.com/
bjornlomborg/posts/4757029 43914714/.
    \37\ Bjorn Lomborg, ``The risk of dying from climate-related 
disasters has declined precipitously.'' Twitter, January 1, 2023, 
https://twitter.com/BjornLomborg/status/161279015 2539131904.
    \38\ Alex Epstein, Fossil Future: Why Human Flourishing Requires 
More Oil, Coal, and Natural Gas--Not Less (New York: Penguin Random 
House, 2022).
---------------------------------------------------------------------------
Decreasing Climate Vulnerability
    We often hear that the weather is becoming increasingly 
destructive. For example, the National Oceanic and Atmospheric 
Administration (NOAA) recently reported that, ``In 2020 alone, a record 
22 separate climate-related disasters with at least $1 billion in 
damages struck across the United States, surpassing the previous annual 
highs of 16 such events set in 2011 and 2017.'' \39\ Citing NOAA's 
report, the Securities and Exchange Commission's (SEC's) climate risk 
disclosure proposal asserts that ``the impact of climate-related risks 
on both individual businesses and the financial system as a whole are 
well documented.'' \40\ Similarly, the Financial Stability Oversight 
Council cites the trend in billion-dollar weather disasters as evidence 
that climate change is a ``threat to financial stability.'' \41\
---------------------------------------------------------------------------
    \39\ NOAA, National Centers for Environmental Information (NCEI) 
U.S. Billion-Dollar Weather and Climate Disasters (2022), https://
www.ncei.noaa.gov/access/billions/.
    \40\ SEC, The Enhancement and Standardization of Climate-Related 
Disclosures for Investors, 87 FR 21334, 21336, April 11, 2022, https://
www.govinfo.gov/content/pkg/FR-2022-04-11/pdf/2022-06342.pdf. 87 FR 
21336.
    \41\ FSOC, Report on Climate-Related Financial Risk 2021, p. 12, 
https://home.treasury.gov/system/files/261/FSOC-Climate-Report.pdf.
---------------------------------------------------------------------------
    In reality, not only is the increasing number of billion-dollar 
disasters not evidence of a climate crisis, it is not even evidence of 
climate change.\42\
---------------------------------------------------------------------------
    \42\ Lest anyone mistake my meaning, greenhouse gases are radiative 
(climate warming) gases, and anthropogenic warming is real.
---------------------------------------------------------------------------
    NOAA's billion-dollar disaster charts adjust climate-related 
damages for inflation but not for population growth and exposed wealth. 
NOAA--and, thus, the SEC and FSOC--ignore what Danish economist Bjorn 
Lomborg calls the ``expanding bull's eye.'' More people and more stuff 
in harm's way lead to bigger climate-related damages even if there is 
no change in the weather.
    Since 1900, Lomborg notes, Florida's coastal population has 
``increased a phenomenal 67 times.'' In fact, just two Florida 
counties, Dade and Broward, have a larger population today than lived 
along the entire coast from Texas to Virginia in 1940. Consequently, 
``For a hurricane in 1940 to hit the same number of people as a modern 
hurricane ripping through Dade and Broward today, it would have had to 
tear through the entire Gulf of Mexico and Atlantic coastline.'' \43\
---------------------------------------------------------------------------
    \43\ Bjorn Lomborg, Bjorn Lomborg, False Alarm: How Climate Change 
Panic Costs Us Trillions, Hurts the Poor, and Fails to Fix the Planet 
(New York: Basic Books, 2020), pp. 70-71 (original emphasis).
---------------------------------------------------------------------------
    Normalizing the damages--estimating the economic losses from an 
historic extreme weather event if the same event were to occur under 
present societal conditions--creates a very different picture from that 
touted by federal agencies. Consider hurricane damages, which 
constitute the largest portion of U.S. weather-related damages. There 
has been no trend in normalized U.S. hurricane damages since 1900. 
Consistent with that data, there has been no trend in the frequency and 
severity of U.S. landfalling hurricanes since 1900.\44\
---------------------------------------------------------------------------
    \44\ Philip J. Klotzbach, Steven G. Bowen, Roger Pielke Jr., and 
Michael Bell. 2018. Continental U.S. Hurricane Landfall Frequency and 
Associated Damage: Observations and Future Risks. Bulletin of the 
American Meteorological Society Vol. 99, Issue 7, https://
journals.ametsoc.org/view/journals/bams/99/7/bams-d-17-
0184.1.xml?tab_body=pdf.
---------------------------------------------------------------------------
    From a sustainability perspective, what matters most is not total 
damages but relative economic impact--extreme weather damages as a 
share of GDP. Globally, weather-related losses per exposed GDP declined 
nearly five-fold from 1980-1989 to 2007-2016.\45\ In both rich and poor 
countries, economic growth outpaced the increase in climate-related 
damages.
---------------------------------------------------------------------------
    \45\ Giuseppe Formetta and Luc Feyen. 2019. Empirical Evidence of 
Declining Global Vulnerability to Climate-Related Hazards, Global 
Environmental Change, 57: 1-9, https://www.researchgate.net/
publication/333507964_Empirical_evidence_of_declining_global_ 
vulnerability_to_climate-related_hazards.
---------------------------------------------------------------------------
Methodological Bias: Inflated Emission Scenarios
    One often hears that climate change is happening so fast it will 
overwhelm humanity's adaptive capabilities. In CEQ's words, ``there is 
little time left to avoid a dangerous--potentially catastrophic--
climate trajectory.'' \46\ That assessment clashes with the positive 
trends discussed above. Three other key facts weigh against the alleged 
urgency for ``climate action.''
---------------------------------------------------------------------------
    \46\ 88 FR 1196, 1197.
---------------------------------------------------------------------------
    First, the rate of warming in the lower-troposphere, as measured by 
satellites and weather balloons, has not accelerated over the past 44 
years. In the University of Alabama in Huntsville satellite record, the 
warming rate is 0.14+C per decade.\47\
---------------------------------------------------------------------------
    \47\ Roy Spencer, UAH Global Temperature Update for August, 2023: 
+0.69 deg. C, RoySpencer.Com, September 4, 2023, https://
www.drroyspencer.com/2023/09/uah-global-temperature-update-for-august-
2023-0-69-deg-c/.
---------------------------------------------------------------------------
    A second major reason is that the emission baselines long used to 
project global warming and sea-level rise are wildly inflated. Those 
scenarios assume the world ``returns to coal'' absent aggressive 
political interventions to suppress the exploration, production, and 
utilization of fossil fuels.\48\ That assumption underlies the high-end 
``radiative forcing'' scenarios,\49\ notably RCP8.5 and SSP5-8.5, 
featured in official and academic climate change impact estimates. Such 
scenarios are no longer credible.\50\
---------------------------------------------------------------------------
    \48\ Justin Ritchie and Hadi Dowlatabi. 2017. Why Do Climate Change 
Scenarios Return to Coal? Energy 140: 1276-1291, https://
www.sciencedirect.com/science/article/abs/pii/S036054421 7314597.
    \49\ RCP stands for ``Representative Concentration Pathway''; SSP 
stands for Shared Socioeconomic Pathway. In both RCP8.5 and SSP5-8.5, 
the rise in GHG concentrations between 2000 and 2100 increases the 
preindustrial greenhouse effect by 8.5 watts per square meter (W/
m2).
    \50\ Roger Pielke, Jr. and Justin Ritchie, ``How Climate Scenarios 
Lost Touch with Reality,'' Issues in Science & Technology, Vol. XXXVII, 
No. 4, Summary 2021, https://issues.org/climate-change-scenarios-lost-
touch-reality-pielke-ritchie/.
---------------------------------------------------------------------------
    It is difficult to exaggerate the extent to which RCP8.5 and SSP5-
8.5 distort climate science, needlessly scare the public, and mislead 
policymakers. According to Google Scholar, since 2019, researchers 
published 17,400 papers featuring RCP8.5 and 3,800 papers featuring 
SSP5-8.5.\51\ One or both of those scenarios was the source of the 
scary-sounding climate impact projections in the Intergovernmental 
Panel on Climate Change's (IPCC's) 2013 Fifth Assessment Report (AR5), 
the IPCC's 2018 Special Report on Global Warming of 1.5+C, the IPCC's 
2021 Sixth Assessment Report (AR6), and the U.S. Global Change Research 
Program's 2018 Fourth U.S. National Climate Assessment.
---------------------------------------------------------------------------
    \51\ Some of those papers could, of course, be critical of high-end 
emission scenarios. However, the first 50 entries on SSP5-8.5 are 
exclusively studies that use the scenario to project climate change 
impacts. Hardly an exhaustive survey but quite suggestive.
---------------------------------------------------------------------------
    At its zenith, the academic ``consensus'' endorsing those scenarios 
may have reached the fabled 97 percent.\52\ It is now crumbling.
---------------------------------------------------------------------------
    \52\ David R. Legates et al. 2015. Climate Consensus and 
`Misinformation': A Rejoinder to Agnotology, Scientific Consensus, and 
the Teaching and Learning of Climate Change. Sci & Educ 24: 299-318, 
https://lweb.cfa.harvard.edu/wsoon/myownPapers-d/LegatesSoonBriggs 
Monckton15-ScienceandEducation-FINAL.pdf.
---------------------------------------------------------------------------
    SSP5-8.5 is a ``socioeconomic pathway'' calibrated to match the 
forcing trajectory of RCP8.5. RCP8.5, in turn, derives from an earlier 
storyline (A2r) from the IPCC's 2007 Fourth Assessment Report.\53\ Such 
scenarios assumed that learning-by-extraction would make coal the 
increasingly affordable backstop energy for the global economy.\54\ In 
fact, nominal coal producer prices in July 2023 were 221 percent higher 
than in July 2001.\55\ RCP8.5 was based on the expectation that global 
coal consumption would increase almost tenfold during 2000-2100.\56\ 
That is not happening and there is no evidence that it will.
---------------------------------------------------------------------------
    \53\ Kewan Riahi et al. 2011. RCP8.5--A Scenario of Comparatively 
High Greenhouse Gas Emissions. Climate Change 109: 33-57, https://
link.springer.com/article/10.1007/s10584-011-0149-y.
    \54\ Justin Ritchie and Hadi Dowlatabadi, The 1,000 GtC Coal 
Question: Are Cases of High Future Coal Combustion Plausible? Resources 
for the Future, RFF DP 16-45, 2016, https://media.rff.org/documents/
RFF-DP-16-45.pdf.
    \55\ St. Louis FED, Producer Price Index by Industry: Coal, https:/
/fred.stlouisfed.org/series/PCU21212121 (accessed 9/11/2023).
    \56\ Riahi et al. Op. cit.
---------------------------------------------------------------------------
    In the International Energy Agency's (IEA's) baseline scenarios 
(``current policies'' and ``pledged policies''), global CO2 
emissions in 2050 are less than half those projected by SSP5-8.5.\57\ 
Strikingly, in Resources for the Future's (RFF's) baseline scenario, 
global CO2 emissions in 2100 are less than one-fifth of 
those projected by SSP5-8.5.\58\ These dramatic reductions in baseline 
emission estimates decrease the urgency for ``climate action.''
---------------------------------------------------------------------------
    \57\ Zeke Hausfather and Glenn P. Peters, ``Emissions--the 
`business as usual' story is misleading,'' Nature, January 29, 2020, 
https://www.nature.com/articles/d41586-020-00177-3.
    \58\ Kevin Rennert et al. The Social Cost of Carbon: Advances in 
Long-Term Probabilistic Projections of Population, GDP, Emissions, and 
Discount Rates, Resources for the Future, October 2021, https://
www.rff.org/publications/working-papers/the-social-cost-of-carbon-
advances-in-long-term-probabilistic-projections-of-population-gdp-
emissions-and-discount-rates/.
---------------------------------------------------------------------------
Methodological Bias: Overheated Models
    CEQ's Proposed Rule requires agencies to use ``projections when 
evaluating reasonably foreseeable effects, including climate change-
related effects,'' and ``expects that modeling techniques will continue 
to improve in the future, resulting in more precise climate 
projections.'' \59\ This brings us to the third reason to doubt the 
urgency for ``climate action'': the persistent mismatch between modeled 
and observed warming in the troposphere, the atmospheric layer where 
most of the greenhouse effect occurs. The IPCC used the CMIP5 
generation of climate models in AR5 and the CMIP6 generation of models 
in AR6. According to Google Scholar, since 2019, researchers published 
68,000 papers featuring CMIP5 models and 22,600 papers featuring CMIP6 
models.
---------------------------------------------------------------------------
    \59\ 88 FR 49924, 49951.
---------------------------------------------------------------------------
    The CMIP5 models hindcast about 2.5 times the observed warming in 
the tropical troposphere since 1979.\60\ About one-third of the AR6 
models have higher equilibrium climate sensitivities than any model in 
the AR5 ensemble.\61\ Equilibrium climate sensitivity (ECS) is the term 
used to describe how much warming will occur after the climate system 
fully adjusts to a doubling of atmospheric CO2 
concentrations.
---------------------------------------------------------------------------
    \60\ John R. Christy and Richard T. McNider. 2017. Satellite Bulk 
Tropospheric Temperatures as a Metric for Climate Sensitivity. Asia-
Pac. J. Atmos. Sci., 53(4), 511-518, https://www.sealevel.info/
christymcnider2017.pdf.
    \61\ Zeke Hausfather, ``Cold Water on Hot Models,'' The 
Breakthrough Institute, February 11, 2020, https://thebreakthrough.org/
issues/energy/cold-water-hot-models.
---------------------------------------------------------------------------
    CEQ believes climate models are improving. If anything, the CMIP6 
models are less accurate than the CMIP5 models. One CMIP5 model (INM-
CM4) accurately hindcasts global temperatures in the topical 
troposphere. No CMIP6 model does. All overestimate warming in that 
atmospheric region.\62\ Why is that significant? All models predict a 
strong warming signal in that region (the tropics at 300-200 hPa). The 
region is well monitored by satellites and weather balloons. Most 
importantly, climate models are not ``tuned'' to match temperature 
trends in that region, so the model simulations are genuinely 
independent of the data used to test them.\63\
---------------------------------------------------------------------------
    \62\ McKitrick and J. Christy. 2020. Pervasive Warming Bias in 
CMIP6 Tropospheric Layers. Earth and Space Science, 7, Issue 9, https:/
/agupubs.onlinelibrary.wiley.com/doi/10.1029/2020EA001281.
    \63\ Ross McKitrick and John Christy. 2018. A Test of the Tropical 
200- to 300-hPa Warming Rate in Climate Models. Earth and Space 
Science, 5: 529-536, https://agupubs. onlinelibrary.wiley.com/doi/epdf/
10.1029/2018EA000401.
---------------------------------------------------------------------------
V. Conclusion

    CEQ should withdraw the proposed GHG emission guidelines, which 
would require agencies to use NEPA as a climate policy framework--a 
purpose for which it was not designed and which Congress has not 
subsequently authorized. Language in the Proposed Rule requiring NEPA-
based scrutiny and mitigation of project-specific climate effects 
should be deleted.
    Far from NEPA containing a clear statement authorizing its use to 
make climate policy, the words ``climate,'' ``carbon,'' ``greenhouse,'' 
``global,'' and ``warming'' do not occur in the statute.
    NEPA is centrally concerned with ``major'' federal actions 
``significantly affecting the quality of the human environment.'' The 
GHG emissions of even the largest infrastructure project have no 
discernible, traceable, or verifiable impacts on the quality of the 
human environment.
    CEQ proceeds as if the ``climate crisis'' is important enough to 
make any level of GHG emissions climatically significant, and dire 
enough to compel NEPA's alignment with Paris Agreement and NetZero 2050 
emission reduction targets. If so, CEQ unlawfully attempts to settle a 
major question of public policy without clear congressional 
authorization.
    CEQ should question the climate crisis narrative, which conflicts 
with ongoing long-term improvements in global life expectancy, per 
capita income, crop yields, and health; dramatic declines in climate-
related mortality; and substantial declines in the relative economic 
impact of damaging weather.
    Finally, CEQ should question the ``science'' underpinning the 
crisis narrative--a doubly-biased methodology in which overheated 
models are run with inflated emission scenarios. Absent those biases, 
climate change assessments would project less warming, smaller climate 
impacts, and lower tipping point risks.

                                 ______
                                 

    Dr. Gosar. Thank you, Mr. Lewis. I am now going to go to 
the dais. I recognize the gentleman from Oregon, Mr. Bentz, for 
his 5 minutes.
    Mr. Bentz. Thank you, Mr. Chair.
    Mr. Simms, I held a hearing as the Chair of the Water 
Subcommittee of Natural Resources up in Richland, Washington 
back in June. And it became apparent from the testimony of some 
of the witnesses from various government agencies, that we 
weren't going to get the straight of what was really going on, 
and that is a blatant attempt to circumvent congressional 
authority to breach or remove those four Lower Snake River 
dams.
    And by blatant attempt I mean an attempt to use operational 
neutering, as I have chosen to call it, of those four projects, 
as opposed to actual breaching of the dams. That was the 
conclusion I reached in that hearing. Can you comment?
    Mr. Simms. Well, good morning, Congressman Bentz. Thank you 
for that opportunity to respond.
    The situation in the region is exactly as you described and 
what has been provided by testimony and others. These dams are 
being hobbled operationally. The folks that are pushing an 
agenda for their breaching or the removal are trying to make 
them less significant, less operationally significant than what 
they have done historically. And I think that has been an 
effort by folks to be continued on a single-focused path of 
breaching or de-optimizing them, no matter which way they can 
work that.
    And you are right, Congress does have the authority, and I 
appreciate you, as a Member of Congress, stressing that 
authority. It has been affirmed by both the Democrats and the 
Republicans that Congress is the single writing authority on 
those Lower Snake River dams, and the dams in general, and 
their authorizations.
    I will conclude by saying that there is an established 
record by the U.S. Government, the Columbia River System 
Operations Environmental Impact Statement issued in September 
2020. And that was the U.S. Government's view after an 
exhaustive, multi-million dollar effort involving stakeholders 
across the basin that those dams can and should exist with some 
very minimal efforts and investments around them because, of 
course, we are paying the world's largest Endangered Species 
Act mitigation program currently, and that was and is the 
government's record that stands today, despite the shenanigans 
from CEQ.
    Mr. Bentz. Right, and these shenanigans are being driven by 
CEQ, as you just said, as I understand it. But that was 
certainly not clear from my questions to, I think it was NOAA 
or the Corps. And there seemed to be a huge reluctance to share 
with the public exactly how this incredibly important decision 
to the Northwest was going to be made.
    Do I have that right, that this is being conducted in 
secret, this attempt to operationally destroy those four 
projects?
    And we will learn, I guess, when Judge Simon issues his 
order, if he does, on October 31. So, how can one justify, if 
you are part of the CEQ, such an approach to such an incredibly 
damaging activity in the Northwest?
    Mr. Simms. Well, sir, it is a great, great question, and I 
would say I am not standing in the shoes of CEQ. And having 
been witness to 25 years of Federal, state, and regional 
process around these Federal facilities and around the power 
system in the Pacific Northwest, it is incredibly difficult and 
very complex, and requires the involvement of a lot of 
stakeholders. That is typically how we have moved policy in our 
region is by transparent involvement of all sectors, making 
sure that folks are read in and understanding where things are 
headed and when they have a voice. And that has been completely 
the opposite, unfortunately, in this situation with CEQ.
    And as I outlined in my brief comments today, but also 
submitted comments, the NOAA report that CEQ had a hand in and 
has essentially put its basis upon is completely different than 
the decades of NOAA research and science on these issues to 
date. And we believe that has been the fuel, essentially, for 
the CEQ fire to burn down our region and effectively sidestep 
any kind of public process.
    Mr. Bentz. Right, and I thank you for that.
    And Mr. Lewis, what, in your opinion, is the most 
egregious, expansive CEQ power under the Biden administration?
    Mr. Simms. What specifically is, sir?
    Mr. Bentz. Yes, just give me one. Give me the one you think 
is the worst.
    Mr. Simms. Well, I believe that having----
    Mr. Bentz. That was actually for Mr. Lewis.
    Mr. Simms. Oh, I am sorry.
    Mr. Bentz. That is OK.
    Mr. Simms. Pardon me. I will yield to Mr. Lewis.
    Mr. Bentz. Sure.
    Mr. Lewis. I am not sure I can give you an example, because 
I am not really following CEQ's actions with respect to 
particular projects or locations the way Mr. Simms is. He is 
really the expert here.
    The abuse of power that I was looking at was the way they 
are trying to stretch a statute that was never intended to be a 
framework for climate policy into such a framework. And it is 
well known that NEPA does not even require agencies to elevate 
environmental concerns above other considerations when they 
deliberate on whether or not to grant a permit or approve the 
construction of a project.
    And what I am finding is that CEQ wants to elevate the 
President's very specific climate goals and commitments, which 
are not commitments in law, but just of Administration policy, 
into a make-or-break factor for deciding on whether projects 
should be allowed.
    Mr. Bentz. And we are going to have to stop there. My time 
has been exhausted, but thank you so much.
    Mr. Lewis. Yes. That is basically my notion of what their 
abuse is that I was concerned with.
    Mr. Bentz. Thank you. I yield back.
    Dr. Gosar. I thank the gentleman. The gentleman from 
California, Mr. Huffman, is recognized.
    Mr. Huffman. Thank you, Mr. Chairman. Mr. Chairman, forgive 
me for being a little bit cynical about the work of this 
Subcommittee this morning, because I just see an awful lot of 
gaslighting and projection, and performative partisan theater. 
Ranting about dark money environmental groups while trotting 
out witnesses from the darkest of dark money right-wing groups 
in this hearing? Give me a break.
    Getting us started by climbing on a high horse, thesaurus 
in hand, and calling the Biden administration and CEQ Chair 
Mallory every name in the book because she dares to undo some 
really wrongheaded Trump administration policies, because she 
is trying to make sure we consider climate change and impacts 
to disadvantaged communities when we move forward with 
projects?
    I am old enough to remember during the 4 years of the Trump 
administration, when we tried to do oversight, which apparently 
suddenly the Republican Majority thinks is really important, 
and what we got back from the Interior Secretary when we wanted 
to find out if he was still doing business with his former oil 
and gas industry clients, because we, unfortunately, confirmed 
an Interior Secretary that was a lobbyist for the oil and gas 
industry, when we wanted to ask about that we got pages and 
pages of fully redacted empty calendar entries. We got nothing. 
But that was just fine with the Republican Majority during the 
Trump administration, because they knew that that Secretary of 
the Interior was doing the bidding of their puppet masters in 
the oil and gas industry.
    It is also rich to hear the Chairman of the Full Committee 
wax sanctimonious about the Fiscal Responsibility Act. And 
apparently, the CEQ Chair is not being forceful enough in 
implementing the gimmicky NEPA reforms that were in that piece 
of legislation. And they were nothing more than gimmicks.
    While at the same time, our Republican colleagues are 
proceeding to tear the Fiscal Responsibility Act into tiny 
little pieces as they push our country to the brink of a 
government shutdown in violation of the agreement behind that 
legislation.
    So, this is all a lot of partisan theater, and that goes 
for the discussion about the Lower Snake River dams, as well. 
We know that our Republican colleagues recently said that the 
NMFS 2022 report was untethered from scientific standards and 
statutory authority. Mr. Simms added a rhetorical flourish, 
saying that it was a house of cards, a flimsy house of cards 
that CEQ built.
    Well, we have had 20 years of litigation over biological 
opinions on these Lower Snake River dams, and every single 
lawsuit has found that we are not doing enough to meet the 
standard of avoiding jeopardy, much less getting the salmon in 
the Columbia River Basin on a path toward recovery.
    So, based on all of this science, it sure looks to me like 
this is more than a house of cards. It looks like seriously 
considering what these Lower Snake River dams are doing to 
salmon in the Columbia River Basin is inevitable, certainly 
under the Endangered Species Act.
    And also, if you give a damn about salmon, if you give a 
damn about tribes, if you give a damn about the dwindling orca 
populations in Puget Sound, let me just ask Ms. Heaps, what am 
I missing here?
    Ms. Heaps. Congressman Huffman, I think you are right on 
the point. CEQ's undoing what happened in 2020 with the regs 
and taking the step forward to really implement NEPA for what 
we need today to address climate change, to address 
environmental justice.
    And I would also like to say that voices are missing here, 
where is the tribal representation? I mean, that perhaps is the 
most stark point that hasn't been made yet, is that we have a 
government obligation to the tribes, that they have treaty 
rights to these fish. And that is our No. 1 thing that we have 
done wrong, and that should be the priority here, is centering 
the tribes and fixing these salmon runs so that they have their 
tribal treaty rights.
    Mr. Huffman. Thank you. The salmon in this basin are 
trending toward extinction, despite all the money that we have 
been spending on mitigation, correct?
    Ms. Heaps. Yes, that is true. The Nez Perce actually, in 
fact, said extinction is imminent if we don't do something.
    Mr. Huffman. So, rather than just the usual thoughts and 
prayers we hear from our colleagues across the aisle, shouldn't 
we follow the science and do what we need to do if we care 
about salmon, and tribes, and all of the economic benefits?
    We heard the world would end if these dams came out. But 
aren't there a lot of economic considerations when it comes to 
salmon in the Columbia River Basin?
    Ms. Heaps. Yes, absolutely. And also breaching the dams 
would give an opportunity to actually diversify the power 
system, and actually increase reliability of the power system, 
and open up additional recreational opportunities as well.
    Mr. Huffman. I thank the witness and yield back.
    Dr. Gosar. I think it is kind of rich of what we want, and 
to understand the Constitution is about the law.
    I now recognize the Chairman of the Full Committee, Mr. 
Westerman.
    Mr. Westerman. Thank you, Mr. Gosar, and thank you to the 
witnesses.
    And Mr. Huffman, I honestly don't know if you voted for the 
Fiscal Responsibility Act, but regardless, it is still the law. 
I know you might want to call it a gimmick, but it is a gimmick 
that had bipartisan support, and President Biden signed it. And 
the point is, it is the law.
    And Ms. Heaps, I appreciate your testimony because it was 
passionate. It was a plea for policies, but it was a plea for 
policies that have never been passed into law by Congress. It 
would be fitting for a testimony at a hearing on legislation. 
But I think it is somewhat irrelevant on a hearing for 
oversight of an agency regarding established law. And I think 
this gets to the root of the problem. It illustrates where the 
breakdown is in the process.
    Ms. Heaps, a July 5 Earthjustice blog post stated, and I 
quote, ``Radical Republicans are actively trying to weaken 
NEPA. They are trying to make it easier for industry to build 
toxic facilities in communities already overburdened by the 
worst impacts of climate change and pollution.''
    Now, I want to point out that that post goes on to talk 
about how the NEPA Phase 2 requirements should focus on 
environmental justice and ensure climate change is part of the 
review process. This was published on July 5, 2023.
    The CEQ proposed Phase 2 NEPA regulations were published in 
the Federal Register on July 31, 2023. Those regulations more 
closely mirrored recommendations in the Earthjustice blog post, 
not the reforms agreed upon in what has been called gimmicky 
bipartisan Fiscal Responsibility Act.
    So, yes or no, Ms. Heaps, did you or a member of the 
Earthjustice team meet with CEQ regarding the development of 
the proposed Phase 2 NEPA process?
    Ms. Heaps. I am one employee at a very large organization 
that has 500 employees, so I am not familiar with who was 
meeting with who.
    Mr. Westerman. So, you didn't----
    Ms. Heaps. I did not personally meet with CEQ, no. That is 
all I could speak to.
    Mr. Westerman. Did you or a member of Earthjustice 
participate in drafting the Phase 2 regulations?
    Ms. Heaps. I do not have knowledge to that. I did not.
    Mr. Westerman. Is there somebody at Earthjustice that would 
have knowledge of that?
    Ms. Heaps. Can you explain what you mean by writing the 
Phase 2 regulations? Because my understanding is this is an 
administrative process in which all of America actually 
participates in the regulation writing because there are draft 
regulations, and then it goes through----
    Mr. Westerman. Did you or an employee meet with CEQ 
regarding these Phase 2----
    Ms. Heaps. I have not met with CEQ about----
    Mr. Westerman. Did you or a staff member of Earthjustice 
have access to an advanced copy of the CEQ proposed Phase 2 
regulations prior to their publication in the Federal Register?
    Ms. Heaps. CEQ does a notice of advanced proposed 
rulemaking. So, all of America had an idea of what Phase 2 was 
going to look like.
    Mr. Westerman. So, you had an advance copy?
    Ms. Heaps. No, I didn't say I had an advance copy.
    Mr. Westerman. So----
    Ms. Heaps. I said the rulemaking procedures allow----
    Mr. Westerman. Are you or Earthjustice, as a non-profit, 
currently a party and/or representing a party in litigation 
against the Federal Government?
    Ms. Heaps. We are not a party, no. We are lawyers.
    Mr. Westerman. Are you representing a party in litigation 
against the Federal Government?
    Ms. Heaps. Are we representing a party in litigation? Yes.
    Mr. Westerman. Do any of these lawsuits involve NEPA?
    Ms. Heaps. I have personally represented parties on NEPA at 
Earthjustice. I don't know what----
    Mr. Westerman. So, is this a potential conflict of interest 
for Earthjustice and/or its employees?
    Ms. Heaps. Absolutely not.
    Mr. Westerman. OK. For the record, Ms. Heaps, I would like 
to note that your disclosure for the Committee states that 
Earthjustice is not a party to any litigation against the 
Federal Government, despite the fact that it uses this as an 
advertising tool in its tagline and on your website.
    So, do you feel, again, yes or no, is falsification of 
information to Congress acceptable?
    Ms. Stansbury. Will the gentleman yield, please?
    Mr. Westerman. No.
    Dr. Gosar. The gentleman's question will stand. We need an 
answer.
    Ms. Heaps. I answered that question truthfully. 
Earthjustice is not a party to litigation, and that is what the 
question asks for.
    Mr. Westerman. The question was a party to or representing 
a party in litigation.
    Ms. Heaps. That is not what the question asked. It was a 
party to litigation.
    If you would like a list of the litigation to which 
Earthjustice is currently in litigation, I am sure we could 
find----
    Mr. Westerman. I have a whole list of other questions. If I 
am out of time, we will submit those questions. I also have 
questions for the other witnesses. But I am out of time, and I 
yield back.
    Dr. Gosar. The gentleman from Montana is recognized for 5 
minutes.
    Mr. Rosendale. Thank you very much, Mr. Chair and Ranking 
Member Stansbury, for holding this hearing today.
    President Biden's big-government, climate-activist agenda 
has wholly captured the once small Council on Environmental 
Quality, transforming it into a compliance council, or an 
activist organization. President Biden's CEQ is hell bent on 
implementing climate and social policies that are destroying 
our country's energy production and jobs.
    CEQ Chair Brenda Mallory, who was too scared to face this 
Committee today, has previously described her role as focusing 
on addressing the environmental justice and climate change 
challenges. Nowhere in CEQ's authorizing charter does it 
mention environmental justice. Nor did Congress grant CEQ the 
power to focus on climate justice and climate change 
challenges.
    CEQ's purpose is to ensure compliance with NEPA, nothing 
more. Nothing more, nothing less. Yet, we have President Biden 
using this Council to push through his outrageous and harmful 
Executive Orders and rulemaking with CEQ's Chief of Staff 
describing the power Biden has given CEQ as ``unprecedented.'' 
This isn't just our words.
    During his presidency, Biden has signed Executive Orders 
providing CEQ with more and more power over American citizens' 
lives, no longer solely focused on NEPA compliance, but instead 
on environmental justice per the President's orders. We have 
just begun to see the damage this rogue, relatively unknown 
agency can wreak on this country and our economy.
    Last July, we saw the results of this agency's activism at 
the Lower Snake River dams. The CEQ has been working behind 
closed doors with plaintiffs in an ongoing lawsuit over the 
Columbia River System Operation's EIS, all while promoting a 
supposedly open and transparent stakeholder listening process 
meant to develop a regional solution for salmon and the river 
system. This action by CEQ shows their goal is not a cleaner 
and more efficient economy and power generation, but instead 
forwarding their climate goals and trying to destroy any power 
generation that they cannot control directly.
    Mr. Loyola, we can all see the significant differences in 
how CEQ was run under the Trump administration versus the 
current one: permitting delays, a focus on climate justice, et 
cetera. However, are there lesser understood or seen 
differences influencing our country that my constituents would 
be surprised to hear about?
    Mr. Loyola. Well, if I was to name one, Congressman, I 
would say that in the Trump administration we were building on 
the work of previous administrations, including the Obama 
administration. We recognized that doing a rule revision 
carries risks of inserting instability into a process that is 
already so unpredictable that Americans across the spectrum 
suffer from it.
    So, we tried to have a very inclusive process and produce 
very common-sense reforms that would have bipartisan buy-in and 
that would stand the test of time. That is why, as it turned 
out, the renewable energy sector was arguably the most 
immediate beneficiary of many of those reforms, as renewable 
energy capacity permitting doubled under the Trump 
administration.
    And what concerns me is that this process that CEQ has 
undertaken in recent years has been, I think it is fair to say, 
a more partisan and special interest group-driven process than 
certainly the one that we tried to have in the Trump 
administration. And as a result, the CEQ has guaranteed that 
when there is another change of administration, there is going 
to have to be yet another change in the procedures for NEPA to 
make them more balanced once again. So, that is the danger that 
I see there.
    Mr. Rosendale. Thank you very much. This is exactly the 
ripsaw effect that we see when executives on either side of the 
aisle start making Executive Orders and directing policy 
instead of utilizing the process that our founders created for 
us, which is this body creating the laws. And we have lost 
that, which has also created a loss of confidence in the 
general public in these institutions because they see them 
going off and making their own decisions, making their own 
rules, and a complete disregard for the rule of law that has 
been put in place.
    Mr. Chair, if I could squeak one more question in, do you 
believe any of President Biden's CEQ's actions have violated 
the Constitution, Administrative Procedure Act, or the Supreme 
Court's precedent?
    Mr. Loyola. I think that there is a potential for that, and 
I would like to take that question for the record, if I may.
    Mr. Rosendale. Thank you very much, Mr. Chair. Thank you 
for your indulgence and I yield back.
    Dr. Gosar. I thank the gentleman. The gentleman from 
Georgia is recognized for 5 minutes.
    Mr. Collins. Thank you, Mr. Chairman. I want to follow up 
real quickly on Chairman Westerman's opening statement.
    America, during the last hearing, CEQ Chair Mallory, and 
CEQ by the way is an unauthorized agency created by the Biden 
administration, which has increased to a bloated budget and 
out-of-control agency. Chair Mallory refused to answer simple 
questions I had about foreign contractors. As a matter of fact, 
she refused to answer any more questions.
    Now, she wasn't refusing to answer me, but she was refusing 
to answer you, every taxpaying American out there, because she, 
like so many of these other out-of-control agencies, they don't 
think they have to answer your questions. They don't even have 
to answer your comments you submit, because they don't care 
what you think.
    As a matter of fact, they think it is even beneath them to 
have to even answer your questions or, as you see, even show 
up. Because, you see, for years, to Chuck Schumer's delight, we 
have passed omnibus bills up here. Omnibus bills have been 
crammed down the American people's throat with no oversight and 
no accountability by these out-of-control agencies. And it has 
done nothing more than continue to embolden them. Well, I tell 
you what, I am here to tell you those days are over.
    Now, Mr. Chairman, with that being said, I am excited that 
we do have those of you that are here with us today, and I 
thank you for that.
    CEQ projected reviews, they are 5 years, on average, from 
reaching a record of decision. And at the most extreme, the 
average time to conduct a final EIS by the Federal Highway 
Administration is 7.37 years. And none of these timelines take 
into account the litigation that likely ensues for this final 
Record of Decision, or ROD.
    So, Ms. Heaps, what are the reasons for an environmental 
impact statement to take almost 5 years to complete?
    Ms. Heaps. I think in some instances environmental impact 
statements can take a long time, based on what kind of studies 
are being done, if you are doing noise studies, if you are 
studying certain impacts to wildlife, if you have to do 
baseline research. So, that could be one reason.
    I have not been privy to any interaction between an 
applicant and an agency to actually know what they are doing in 
that time until the NEPA document goes out for public comment. 
There may be another witness here who has a better answer to 
that question. But I could speak more clearly to what happens 
when a document goes to public comment and then what happens 
after that.
    Mr. Collins. Thank you.
    Well, I will tell you what, Mr. Lewis, do you agree that 
these timelines are not acceptable?
    Mr. Lewis. I am sorry, Congressman, please repeat that 
question.
    Mr. Collins. Well, I was asking Ms. Heaps what are the 
reasons that these environmental impact statements take almost 
5 years.
    Mr. Lewis. Oh, why they take so long, right. Well, I will 
give you a quick answer, but I would say that my colleague, 
Mario Loyola, knows much more detail here.
    But one reason is that it is to bulletproof the 
environmental impact statement from litigation. Because no 
matter how many different factors or aspects you consider, 
because the world is such a big and complex place, some 
litigation group can always find something that the agency 
didn't consider. And sometimes courts will then just overturn 
the decision, or make them do the study over.
    So, litigation drives a lot of the time expended----
    Mr. Collins. I would agree with you 100 percent. And many 
times at our Federal Government they move the goalposts due to 
these litigations and all these frivolous lawsuits that these 
environmentalists impose, and it is a continual.
    What do you think can be done to cut these timelines?
    Mr. Lewis. I really think Mario could speak much better to 
that than I could.
    Mr. Collins. Well, we will give him a shot at it.
    Would you care to answer that?
    Mr. Loyola. Yes, Congressman, thank you for that.
    And thank you, Marlo, for creating more work for me.
    [Laughter.]
    Mr. Collins. He is sitting three doors down.
    Mr. Loyola. So, Congressman, I think that in addition to 
the factor that Mr. Lewis mentions, which is litigation risk 
that drives the agencies to an inordinate amount of time spent 
trying to make sure they get every comma and period right, is 
the fact that the NEPA process is so resource intensive for 
agencies that agencies can only produce a, you know, a handful 
of EISs every year.
    So, you have, for example, the Nevada office of the Bureau 
of Land Management only has the resources to work on one to 
three permit applications at the same time, given how much of 
the staff resources every one of these things costs, and 
suddenly they are facing 20 permit applications. Well, they can 
still only work on two at a time. So, that means that there is 
an enormous backlog of these things created.
    And as far as ways to resolve this, to help improve the 
situation and speed this up, I think I have several 
recommendations in my submitted testimony, and I have written 
about this a fair amount. I will just say I think it is very 
important that the agency not have unfettered discretion of 
when to start the clock ticking.
    Mr. Collins. He is over here tapping on me. I can answer 
that question as well. Some call it tort reform.
    Mr. Chairman, I am sorry for going over, and I appreciate 
it, and I yield back.
    Dr. Gosar. I thank the gentleman from Georgia. The 
gentleman from Washington, Mr. Newhouse, is recognized for 5 
minutes.
    Mr. Newhouse. Thank you, Chair Gosar, and I appreciate very 
much the opportunity to be part of this hearing. I thank the 
guests for being here today.
    I am from the state of Washington. As you are familiar, the 
four Lower Snake dams are certainly what many people call, me 
included, the lifeblood of central Washington. They literally 
transform an arid desert into bountiful farmland. They provide 
irrigation, an agricultural industry, navigation, flood 
control, a source of clean, renewable, CO2-free 
power throughout the region. So, they are very important.
    And to ensure their continued success, I have consistently 
engaged with many people throughout the region that represent 
utilities, public power, hydropower, certainly water groups, 
many groups that are impacted and benefit from the presence of 
the dams. We literally represent millions of people in the 
West, and this is such an important process for us to be 
talking about, and I appreciate you guys being here.
    The common theme, all of these groups consistently raise 
the same concerns that they have within the CRSO process, the 
Columbia River System Operations, that the CEQ, the Council on 
Environmental Quality, has not adequately involved them. It is 
very frustrating. These are the stakeholders in this mediation 
process. It is very frustrating.
    In fact, in one case, stakeholders like the Public Power 
Council and the Northwest River Partners were invited to an 
August 18, 2023 meeting, a meeting that was scheduled 13 days 
prior to the expiration of the mediation. So, certainly 
stakeholders had a chance to express their concerns, but I am 
guessing they were registered, but none of their concerns were 
addressed or remedied.
    I was very excited when I came in the room and I saw that 
the name tag for Chair Mallory of the CEQ was there. And I 
apologize, Mr. Loyola, I mistook you for Mr. Mallory. So, I was 
going to direct some questions to you. But not being able to do 
that, I have to redirect my thoughts to others.
    So, Mr. Simms, if you would avail yourself, do you think 
that 13 days is enough time for CEQ to incorporate any 
potential recommendations into the mediation?
    Mr. Simms. Congressman Newhouse, good morning. Thirteen 
days is certainly not enough for CEQ to incorporate our input.
    Mr. Newhouse. In your opinion, how do you believe that this 
lack of collaboration will impact the end result that we may 
see from this mediation process?
    Mr. Simms. Sadly, sir, I would say, as a fourth generation 
Washingtonian myself, we are further apart than we were when we 
started this process. And I used a four-letter word earlier to 
describe it. It is a sham, s-h-a-m. I think that this process 
has really isolated folks from the ability to really engage and 
find true compromise in the middle. And I do believe that there 
is a middle for compromise.
    And I was sad to see Congressman Huffman leave the room so 
that we could address some of the issues he raised about 
salmon, because we do care deeply about the salmon in our 
region, the survival of the salmon, the habitat investments, 
the predation reduction investments that we are making. Those 
are all critical for their survival. And we are all in. We live 
in those communities, and we want those salmon to succeed.
    Mr. Newhouse. I am kind of an optimist, I guess, not 
naively so, so I was glad to see the extension so that maybe we 
could address some of these long-standing concerns that I 
didn't think there was adequate time given to address.
    In the remainder of this extension that we have before us, 
what would you recommend that, in your opinion, CEQ could do 
differently than they have over the past 2 years to make sure 
that these concerns that are being raised are incorporated into 
the mediation process, and that we end up where we need to be, 
with a fair, equitable resolution?
    Mr. Simms. Well, sir, I am looking at the clock and seeing 
there is probably a long list of things that could happen. But 
I would say first and foremost is there probably needs to be 
some reading and some studying done at CEQ, and that is the 
current record from the U.S. Government about where the 
government landed on the future of the Columbia River System, 
which was the CRSO EIS from September 2020.
    As well, as I outlined earlier, the NOAA report that CEQ 
has heralded and put forth is unsubstantiated, and is a 180-
degree difference from the former and established NOAA science 
in this basin.
    So, we have to actually do some homework in this region, 
and we have to get folks back together to the table in a way 
where we can compromise. I am hopeful we can do that in the 
remaining days of this stay.
    Mr. Newhouse. Yes, I am, too. Like I said, I am optimistic, 
but hopefully not naively so, and look forward to a positive 
resolution to this once and for all.
    Thank you, Mr. Chairman. I am over my time. And again, I 
appreciate being allowed to sit in on this hearing.
    Dr. Gosar. Thanks for being here. The Western caucus is 
always endeared here.
    I now recognize the gentleman from Texas, Mr. Hunt, for his 
5 minutes.
    Mr. Hunt. Thank you, Mr. Chairman, and thank you, 
witnesses, for being here today.
    CEQ was originally created to issue guidance to Federal 
agencies on how to comply with NEPA. Nevertheless, everyone in 
this room knows that CEQ has grown into an action arm for 
President Biden's radical eco-agenda. Look no further than the 
Biden administration's settlement with the Sierra Club over a 
possible, a possible, sighting of a Rice's whale in the Gulf of 
Mexico almost a decade ago. It is insanity.
    Instead of simply overseeing NEPA compliance, the CEQ is 
reshaping Federal agencies as a vehicle of social change and 
leading the war on domestic energy production.
    CEQ and Biden's White House care far more about ESG than 
they care about the American public and our livelihood, and 
what we are going to do about having energy abundance for our 
future.
    Mr. Loyola, sir, thank you for being here. In your 
testimony, you mentioned that the American people need to 
understand that the goal of net-zero is a fantasy. And given 
the delays and uncertainties of the permitting process, could 
you elaborate on that, please?
    And for the record, sir, I am from Houston, Texas. The 
entire energy corridor is in my district, so I can't agree more 
with this statement, but I would love for you to speak a little 
bit more about that, please.
    Mr. Loyola. Thank you for the question, Congressman Hunt.
    I would say that under current law there are enormous 
constraints on the ability to deploy renewable energy on the 
scale and at the speed that would be required. Just to give an 
example, the Princeton Net-Zero Study talks about requiring 500 
gigabytes of new solar capacity. That is about 1,000 utility 
scale solar plants that would need to be built. That is an area 
approximately the size of New Jersey covered in solar panels.
    Mr. Hunt. Wow.
    Mr. Loyola. And I will just point out, in the Snake River 
dams that we have been talking about, there are many very 
sympathetic stories on the ground of stakeholders. Every single 
renewable energy project has similar stories and has similar 
people opposing them.
    And the problem with the NEPA process is that it elevates 
small pockets, what can sometimes be very small pockets of 
local opposition over national policy priorities. And it is 
happening even with respect to the national policy priorities 
of the current Administration, which hasn't been able to 
increase the rate at which renewable energy gets permitted 
because of this sort of local opposition.
    The problems operate at two levels. One of them is that the 
risks to any particular project are so enormous because of the 
uncertainties of the process that those projects in the project 
application phase, during the NEPA phase, have only very 
restricted access to financing. Only people who can afford to 
lose $25 or $30 million or $100 million on a permit 
application, who can literally afford to throw that money away, 
are waiting for someone to call them back, and are only tempted 
to get into a project because of the promise of exorbitant 
returns on investment, which is a premium that is passed onto 
consumers eventually.
    Mr. Hunt. Always, always.
    Mr. Loyola. All of these inefficiencies come at a great 
cost.
    And then the macro level issue, which I discussed a moment 
ago, which is that the entire process is so taxing of agency 
staff resources that the entire Federal Government is only able 
to produce 70 or 80 EISs a year.
    The entire Federal Government in the last year, I mean, I 
don't know this for a fact, I will take it for the record, but 
in the last year I bet that the entire Federal Government has 
only issued three or four solar project permit applications. 
And in order to get to net-zero, they have to build 1,000 solar 
plants and have them operational before 2035. I am not a 
mathematician or anything, but doing the math I don't see how 
they are going to get there.
    So, I think the principle that we followed in the Trump 
administration was that the uncertainties and inefficiencies of 
the NEPA process hurt everybody.
    Mr. Hunt. Yes.
    Mr. Loyola. And that making the process more predictable 
would be a benefit to everybody. Maybe not the litigation, the 
cottage industry of litigation groups that has grown up 
challenging agency actions. But again, I don't see this as a 
partisan issue of Republicans versus Democrats. I see this as 
public interest versus special interests.
    So, what we tried to do and what CEQ will hopefully do in 
the future is to put the public interest and efficient and 
effective agency action first, and try to streamline the NEPA 
process as called for in the Fiscal Responsibility Act.
    Mr. Hunt. Thank you very much for your answer, and I will 
yield back the rest of my time.
    Thank you, sir.
    Dr. Gosar. I thank the gentleman from Texas. The 
gentlewoman from New Mexico is recognized for her 5 minutes.
    Ms. Stansbury. All right. Well, thank you so much, Mr. 
Chairman. And I do thank all of my colleagues for the rich 
discussion and debate this morning, and that is part of the 
democratic process is to have debates about public policy, and 
our goals, and what we would like to achieve with the tools of 
governance.
    But what we don't get to do is to make up facts and put 
false statements into the mouths of our witnesses and then try 
to get them on the record. So, I will remind my colleagues that 
this is not behavior that is fitting with the decorum of this 
Committee, and would like to correct some of the misinformation 
that has been stated here at this hearing today.
    First of all, let's talk about NEPA and CEQ. In 1969, this 
body on a bipartisan basis passed NEPA. And guess what? It 
actually authorized and created the Council on Environmental 
Quality. And then Richard Nixon signed it on January 1, 
creating the Council on Environmental Quality. I heard some 
statements this morning that it was an unauthorized agency, and 
that is factually untrue.
    Second, I heard a lot of commentary this morning from 
various Members about unauthorized activities of the executive 
office of the President. Well, this is how it works. Congress 
passes laws and then the executive branch implements them. And 
last year and the year before, Congress passed the Bipartisan 
Infrastructure Law, which is the largest investment in 
infrastructure in generations, and last summer, we passed the 
Inflation Reduction Act, which directed the Council on 
Environmental Quality, our executive offices, to implement the 
most comprehensive implementation of climate action ever in the 
history of the United States and of any government in the 
history of this planet. So, the Council and the other agencies 
of the executive office are carrying out their mandates, which 
Congress passed.
    Third, I heard that the Council on Environmental Quality is 
implementing unauthorized budgetary authority. Well, guess 
what? The U.S. Constitution says Congress holds the purse 
strings and we authorized and appropriated that funding. And 
the reason why we did that is so that we could implement NEPA 
and actually expedite our infrastructure so that we could build 
out our clean energy and other infrastructure. And that is 
exactly what the Council and other Federal agencies are doing.
    Finally, I would love to remind everyone here that 
administrative law and the way in which our Constitution laid 
out was that there is a separation of powers. So, each 
president gets to create an advisory body within the Executive 
Office of the President to advise that president on how they 
carry out their duty. They also can sign Memorandums and 
Executive Orders that direct his agencies and his bodies to do 
what a president, he and, hopefully, in the future, she or 
they, may choose to do. And that is exactly what the Council on 
Environmental Quality is doing.
    So, I think it is just important for the purposes of the 
record to make sure that we are being accurate in what we are 
describing in terms of the law, congressional authority, 
executive authority, and the mandates of this agency.
    I do want to just take a moment to talk about the fisheries 
situation in the Pacific Northwest. While I do represent a 
state in the Southwest, I had the tremendous honor, as a former 
Senate staffer, to work for a Senator from the Pacific 
Northwest, and had the opportunity to work on these issues. And 
what I know to be true is that, indeed, the fisheries of the 
Pacific Northwest are protected by treaty between the U.S. 
Government and the tribes who signed those treaties with the 
U.S. Government. And the subject of litigation is not only the 
Endangered Species Act, but the right of those tribes to access 
and utilize those fisheries in perpetuity.
    So, it is important again that we are accurate about the 
law, we are accurate about the goals of litigation, and why 
these things are happening.
    Finally, I just want to wrap up here and talk about 
accountability to agreements. Two months ago, this body 
literally had a debate about whether or not we would shut down 
the global economy and accede to the demands of folks in the 
radical right who basically wanted to gut government functions. 
And as a pound of flesh, they mandated that the President and 
the rest of our country vote for a bill called the Fiscal 
Responsibility Act that cut funding for individuals who are 
struggling with food insecurity, that made agreements about how 
the budget would be implemented, that would cut overall 
spending levels if we didn't hold to those agreements, and 
which attempted to gut the National Environmental Policy Act, 
and which the Administration is trying to implement in good 
faith right now.
    But you know who is not acting in good faith right now? The 
individuals who actually demanded that pound of flesh, because 
right now, this week, we are just 2 weeks away from the 
government shutting down because we have not passed a budget 
that meets the responsibilities and the agreements that were in 
the Fiscal Responsibility Act.
    And we were supposed to take a vote today on one of those 
appropriations bills. And guess what? They couldn't even get a 
rule out to take a vote on the House Floor. So, we are going to 
go down to the floor after we adjourn this hearing, and we are 
going to take a vote on electric cars, and these folks are 
going to go home.
    So, I say to the American people, let's talk about 
government accountability and responsibility, but let's make 
sure that Congress is doing its job, and let's keep the 
government open.
    And with that, I yield back.
    Dr. Gosar. I thank the gentlewoman. You know, it is 
priceless here. We are going to run a $2 trillion deficit this 
year, $2 trillion. And we are not going to talk about that 
expenditure thing again. You can't keep doing this. That is why 
our money is play money now.
    So, I think the ranting and raving on both sides is 
merited, because I think people are frustrated because we are 
not back to what the government should be doing. Congress 
defines the laws, makes those laws, and these agencies embrace 
them. Groups like Ms. Heaps' have a right to intervene if they 
so feel. But we all have to do this together, and it is crazy.
    When you look at this $2 trillion deficit, how much was it 
that was done in regards to the military? Here is a military 
that can't find 60 percent of its assets. Does that sound like 
something you want to throw a bunch of money at? Not me. I 
think every dollar that comes to the forefront should be 
accountable. We have to be determining that aspect to have it 
done. So, I don't care for the grandstanding. I think it has a 
place, because we have to look at each other in how we get this 
stuff done.
    Mr. Loyola and Mr. Lewis, when you talk about these green 
infrastructure projects, tell me how this worked with the Trump 
administration working collaboratively versus the Biden 
administration. Why was there so much more done during the 
Trump administration than the Biden administration?
    Mr. Loyola. Chairman Gosar, during the Trump 
administration, I think it is fair to say that attitudes toward 
renewable energy within the Administration ranged from agnostic 
to hostile. But the President was very committed to efficient 
government processes, and especially very committed to cutting 
red tape and to making agency processes work efficiently.
    An important part of the One Federal Decision process was 
not just timelines and page limits, but also an accountability 
system that was developed and managed jointly by the Council on 
Environmental Quality and the Office of Management and Budget 
that held the agencies to report cards, and brought up to the 
principal's level, to the cabinet officer level, projects and 
processes that had fallen behind their published schedules.
    And in my opinion, it was this entire system of expedited 
procedures, added resources to expedite those procedures and, 
crucially, the accountability system that was put in place by 
OMB that increased the rate of permitting across NEPA reviews, 
generally. And as a result, because renewable energy projects 
tend to be, for a variety of reasons, NEPA-intensive, it 
emerged not as an objective of the policy, but as a by-product 
of the policy that the renewable energy sector was an enormous 
beneficiary of the Trump-era reforms.
    Dr. Gosar. Let me intervene there. I thought my 
understanding was agencies pre-dating the Obama era looked at 
corridors that were actually pre-selected sites for these green 
energy. Is that true?
    And why did that not play a big part?
    Mr. Loyola. Well, I will take as an example the 2012 Solar 
Programmatic Environmental Impact Statement for the six Western 
states, which was put in place in 2012 by the Bureau of Land 
Management in order to expedite solar project development in 
the part of the country that has the highest solar energy 
capacity factor, which is the desert in the Western states, in 
Nevada and surrounding states in particular. They divided up 
the geographic area into solar energy zones, solar energy no-go 
zones, and then variance areas.
    The problems with the areas that they designated for solar 
energy development is that they were absolutely in the middle 
of nowhere, and not near any interconnection points. And the 
long pole in the tent for all of this stuff is building the 
transmission lines. So, they were in danger of building a bunch 
of solar projects that could be waiting for the rest of the 
21st century for transmission lines to arrive.
    And as it turned out, when private developers started 
coming in and trying to develop solar projects under this 
scheme, they realized that the only feasible places to get a 
return on investment and get a solar project interconnected to 
the grid was within the variant zones, and the variant zones 
basically dialed everything back. Instead of having a 
programmatic permit where you could batch permit all of this 
whole group of solar projects, now you were back to square one 
with the same NEPA process that you had before.
    So, I think the failure there was to not look at it enough 
from the business people's point of view who actually have to 
develop these projects, and try to figure out where it would 
make sense to develop them.
    Dr. Gosar. That is wonderful.
    I am just going to ask you real quick, going down the line, 
what was the one question you wanted asked today that wasn't 
asked, and what is the answer?
    We will start with you, Mr. Loyola.
    Mr. Loyola. What is the most important thing----
    Dr. Gosar. No, what was the question you wanted most to 
answer.
    Mr. Loyola. Sorry, this is suddenly Jeopardy, but I am 
trying.
    So, the question is what is the most important thing that 
Congress can do to reform the NEPA process, and the answer to 
that question, after conducting a study of how other countries 
do environmental review and permitting, is that I think the 
time may have come for Congress to consider and start studying 
a general consolidation of all of the environmental laws in a 
single statute, as the Netherlands and Denmark have done, which 
would consolidate all permitting within a single permitting 
agency, with a single permit application, and a single 
predictable timetable for projects of national importance that 
would still retain enforcement and regulation within the 
agencies that exist today.
    Dr. Gosar. Ms. Heaps.
    Ms. Heaps. Thank you. I would have liked to be asked how 
are the Phase 2 regs consistent with congressional intent of 
NEPA.
    Dr. Gosar. Say that one more time.
    Ms. Heaps. How are the Phase 2 regulations consistent with 
NEPA's congressional intent, and I think there are four ways, 
particularly with climate change and environmental justice.
    The declaration of congressional intent is that Congress 
recognized the profound impact of man's activity on the 
interrelations of all components of the natural environment. 
That is climate change as an umbrella, especially as related to 
resource exploitation.
    Congress declared a continuing policy to use all 
practicable means and measures to create and maintain 
conditions under which man and nature can exist in productive 
harmony. They said that they recognize its continuing 
responsibility of the Federal Government to use all practical 
means to improve Federal decisions to fulfill the 
responsibilities of each generation as a trustee of the 
environment for succeeding generations.
    We know through Juliana, we know through the Montana 
litigation that our young generations are demanding that we 
take action on climate change.
    And then finally, that declaration of national 
environmental policy, Congress recognizes each person should 
enjoy a healthful environment. That loops in environmental 
justice. Thank you.
    Dr. Gosar. Thank you.
    Mr. Simms.
    Mr. Simms. Yes, thank you for that question. The question I 
was hoping you would ask is can you talk about the balance you 
work to achieve between the health of salmon and production of 
clean, renewable hydropower, and my answer is that I represent 
non-profit electric utilities, and $0.25 on every dollar is 
spent on fish recovery. And we are making meaningful impacts.
    We need to talk in our region more about sustaining the 
harvest for treaty tribes, for sure. But as well, we need to 
talk about the offshore harvest that is happening on an 
annualized basis and the massive take of fish. So, as we are 
trying to produce fish, they are also being hauled in.
    I think, as well, we are facing more and more extreme 
weather events in our world. And you certainly did raise that, 
I think, in your opening comments. And we definitely are seeing 
utilities being stretched more and more. In fact, last year, 
California hit a peak, 51 gigawatts during Labor Day of 2022. 
The Northwest came to the rescue with, actually, those Lower 
Snake River dams.
    So, it is all about a balancing factor. And for us, I think 
what we are trying to do is make sure folks realize we actually 
live and work in this basin. We care deeply about it, and we 
are trying our best, like Congress, to find that balance 
pathway between all the needs that are put on this vast river 
system. Thank you.
    Dr. Gosar. Thank you.
    Mr. Lewis.
    Mr. Lewis. I would have liked to have been asked to 
elaborate a bit on the CEQ's exaggerated understanding of the 
climate risks that we actually face. CEQ, in its greenhouse gas 
guidance, basically thinks that agencies have at their 
fingertips an excellent set of resources in terms of modeling 
and projections of climate risks that they can rely on to 
inform their decisions.
    And one of the things that I stressed in my testimony is 
that, for years, a set of emissions scenarios have dominated 
all the official climate impact assessments, whether it is the 
Intergovernmental Panel on Climate Change or the U.S. National 
Climate Assessment. These scenarios, they are called RCP 8.5 
and SSP 8.5. They are basically the high-end emissions 
scenarios.
    And just to give you a sense, just since 2019, 17,400 
papers have been published in the peer-reviewed literature 
examining climate risks in terms of this RCP 8.5. Now, it turns 
out that the latest information shows that this emissions 
scenario, which is the dominant scenario for years now, or more 
than a decade, exaggerates the likely quantity of carbon 
dioxide emissions in the global economy by more than double by 
the year 2050, and by more than 5 times by the year 2100.
    So, there is this enormous systemic bias, if you will, in 
the climate impact assessment literature, and I don't think 
that CEQ is aware of any of this. They certainly don't take 
notice of it. There are newer scenarios that are much more 
realistic, including those produced by the organization 
Resources for the Future, and then the International Energy 
Agency also.
    Anyway, there are some aspects to climate science there 
that I think they are completely missing.
    Also, about the models that are used, the generation of 
models that was used in the 2013 Intergovernmental Panel on 
Climate Change report, and then by our National Climate 
Assessment, and then the later generation called CMIP6, if 
people are interested in the names, in the sixth assessment 
report of the IPCC, all those models over-estimate or hindcast 
about 2\1/2\ times as much warming as has actually been 
observed in the tropical mid-atmosphere, the bulk atmosphere.
    So, the practice in climate science has been to run 
inflated emissions scenarios like RCP 8.5 with these overheated 
models, and then that becomes the consensus. And based on that 
consensus, people who are clever with words will elaborate a 
narrative of existential threat, and crisis, and emergency. And 
I think all of this really needs to be toned down and rethought 
at the highest levels of our government.

    Dr. Gosar. Well, I thank you so very, very much.

    Did you want to put something in the record? Go ahead.

    Ms. Stansbury. Mr. Chairman, before we adjourn I would like 
to ask for unanimous consent to enter into the record two 
letters that has been signed by multiple organizations in 
support of CEQ's NEPA Phase 2 rule.

    Dr. Gosar. Without objection, so ordered.

    [The information follows:]
                                             September 13, 2023    

Hon. Paul Gosar, Chairman
Hon. Melanie Stansbury, Ranking Member
House Natural Resources Committee
Oversight and Investigations Subcommittee
1324 Longworth House Office Building
Washington, DC 20515

    Dear Chairman Gosar, Ranking Member Stansbury, and members of the 
Subcommittee:

    Ahead of the Subcommittee hearing on Thursday, September 14th, our 
organizations write to express our support for the Biden 
administration's proposed ``Bipartisan Permitting Reform Implementation 
Rule,'' which will finalize the White House Council on Environmental 
Quality's (CEQ) update to the National Environmental Policy Act (NEPA) 
regulations. This rule embodies a commitment to environmental 
protection and the rule of law, and we support its focus on climate 
action, environmental justice, and the rapid and responsible 
development of truly clean, renewable energy infrastructure.
    NEPA has been a cornerstone of environmental policy for more than 
five decades, ensuring that federal actions consider and address their 
environmental, health, and economic impacts. Strong NEPA rules are 
particularly important for Indian Country and tribal citizens as it is 
one of the few safeguards for actions on lands held in trust by the 
federal government. CEQ's proposed revisions to the NEPA rule are a 
welcomed effort to modernize and improve this bedrock environmental law 
that Congress should recognize and support.
    While long overdue, we applaud CEQ's commitment to incorporating 
climate change and environmental justice considerations into NEPA 
reviews. Recognizing the existential threat that climate change poses 
and the disproportionate impacts it has on marginalized communities, 
this aspect of the draft rule is both timely and essential. By 
integrating climate considerations and explicitly incorporating 
environmental justice concerns into federal decision-making, the rule 
takes a significant step towards ensuring a more sustainable, 
equitable, and resilient future.
    Our organizations look forward to working collaboratively with the 
Administration to ensure that the rule strengthens environmental 
protections, advances the fight against climate change, promotes 
environmental justice for all, and is finalized as soon as possible.

            Sincerely,

        American Rivers               National Wildlife Federation

        CalWild                       Natural Resources Defense Council

        Center for Oil and Gas 
        Organizing                    Northeastern Minnesotans for 
                                      Wilderness

        Coalition to Protect 
        America's National Parks      Ocean Conservancy

        CURE                          Ocean Conservation Research

        Dakota Resource Council       Ocean Defense Initiative

        Earthjustice                  Operation HomeCare, Inc.

        Earthworks                    Oxfam America

        Environmental Law & Policy 
        Center                        Sierra Club

        Food & Water Watch            Silvix Resources

        Fort Berthold Protectors of 
        Water and Earth Rights        Southern Environmental Law Center
        GreenLatinos                  Southern Utah Wilderness Alliance

        Information Network for 
        Responsible Mining            The Wilderness Society

        Interfaith Power & Light      WE ACT for Environmental Justice

        LCV                           Western Environmental Law Center

        Los Padres ForestWatch        Winter Wildlands Alliance

        National Parks Conservation 
        Association                   Zero Hour

                                 ______
                                 

                                             September 13, 2023    

Hon. Paul Gosar, Chairman
Hon. Melanie Stansbury, Ranking Member
House Natural Resources Committee
Oversight and Investigations Subcommittee
1324 Longworth House Office Building
Washington, DC 20515

    Dear Chairman Gosar, Ranking Member Stansbury, and members of the 
Subcommittee:

    We write to you on behalf of millions of our members to call 
attention to the critical need to protect and restore Columbia and 
Snake River salmon and steelhead in advance of the Thursday, September 
14 hearing in the House Natural Resources Committee's Subcommittee on 
Oversight and Investigations.
    Salmon and steelhead are an integral part of life in the Northwest. 
They are the foundation of an entire ecosystem from forests to orcas; 
they support multi-billion dollar industries and family wage jobs from 
commercial fishing to tourism and manufacturing in rural communities; 
and most importantly, they are indispensable to the culture and way of 
life for many Northwest Tribes that have relied on them since time 
immemorial and to whom we owe solemn legal responsibility enshrined in 
treaties and other agreements.
    The Columbia and Snake Rivers were once the largest salmon-
producing river system in the contiguous United States, but now many 
runs--and all of those that still return to the Snake River--are listed 
as endangered or threatened. Many others have already been lost. 
Decades of scientific study confirm that the federal hydroelectric dams 
on the Columbia and Snake Rivers play a leading role in these 
devastating declines.
    It is impossible to imagine the Northwest without salmon--yet we 
are perilously close to losing many runs of these remarkable fish. The 
federal government's own analysis predicts that the continued operation 
of these dams will drive many Snake River salmon runs to extinction in 
the near term.\1\ More recent analysis by fisheries experts with the 
Nez Perce Tribe predicts that many of these same Snake River 
populations may become functionally extinct as soon as 2025, unless we 
act with urgency to change their trajectory.\2\
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    \1\ See NMFS' Endangered Species Act Section 7(a)(2) Biological 
Opinion for the Continued Operation and Maintenance of the Federal 
Columbia River Power System at p.275 (``Based on life-cycle modelling 
of [hydrosystem operations in combination with] future RCP 8.5 climate 
emission scenario for [Snake River] spring/summer Chinook salmon 
populations, the median abundance of stream-type spring and summer-run 
Chinook salmon populations could decline substantially in the next two 
to three decades. Declines of this magnitude, if they were to occur, 
would threaten to extirpate a large number of small populations, and 
would substantially reduce the abundance and productivity of larger 
populations.''). PDF
    \2\ Nez Perce Tribe and the New Perce Fisheries: Snake Basin 
Chinook and Steelhead Quasi-Extinction Threshold Alarm and Call to 
Action (May 2021) PDF
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    The loss of our native salmon is as unnecessary as it is 
unacceptable. Salmon scientists have repeatedly concluded that even in 
a warming world, we can restore Snake River salmon and steelhead to 
healthy and abundant levels--if and only if we restore the lower Snake 
River by breaching its four costly federal dams.\3\
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    \3\ National Oceanographic and Atmospheric Administration (NOAA): 
Rebuilding Interior Columbia Basin Salmon and Steelhead; National 
Marine Fisheries Service (Sept. 30, 2022) PDF
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    In 2021 Representative Simpson of Idaho (R) put forth an ambitious 
and comprehensive proposal (Columbia Basin Initiative), effectively 
advancing an important conversation across the region regarding the 
urgency and opportunities to responsibly restore the lower Snake River 
and replace the services provided by its four dams so that the 
Northwest will continue to have abundant and affordable clean energy, 
accessible transportation for agricultural products and other goods, 
and irrigation for established farmland.
    Additional analyses, including the recent lower Snake River report 
and recommendations by Senator Murray and Governor Inslee, stated, 
``status quo is not a responsible option; extinction of salmon is 
categorically unacceptable''. Senator Murray and Governor Inslee 
further stated in their recommendations, ``we must move forward in a 
way that restores our salmon populations and acknowledges and redresses 
the harms to Tribes while responsibly charting the course to an energy 
and economic future for Washington state and the region. It is for 
these reasons that we previously stated that breaching of the Lower 
Snake River Dams should be an option, and why we believe, at the 
conclusion of this Process, that it must be an option we strive to make 
viable''.\4\
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    \4\ Sen. Murray/Gov. Inslee: Pacific Northwest Salmon Recovery 
Recommendations (Aug, 2022) PDF
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    Governor Inslee and Washington State legislators followed through 
on these commitments and secured $7.5 million dollars in 2023 to begin 
the planning processes to replace the energy, transportation, and 
irrigation services currently provided by the dams. We can feasibly and 
affordably replace the services of the 4 lower Snake River dams with 
reliable, modernized systems, but we must start that effort in earnest 
now--and we need Congressional leadership and support.
    We ask the members of this subcommittee to replace the services of 
the Snake River dams so we can restore the river and breach the dams by 
2030 at the latest. Working with the Administration, Congress can help 
direct unprecedented federal investments through the Inflation 
Reduction Act and Infrastructure Investment and Jobs Act to regional 
projects that advance our clean energy and climate goals, modernize our 
transportation systems, and address other interests affected by river 
restoration.
    The Biden Administration has articulated a clear set of commitments 
to restore healthy and abundant salmon runs and honor our nation's 
obligations to Tribes by turning away from the ``business as usual'' 
approach of the past and charting a new path forward in the Columbia 
Basin.\5\ We urge you to work with the Administration to achieve these 
goals. Our region's native fish face extinction today, and the time for 
action and leadership is now.
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    \5\ Biden Administration Columbia Basin Salmon Recovery Commitment 
Document (Aug, 2022) PDF
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    Now more than ever, we ask you to seize every opportunity to speak 
the truth in the face of misleading information and polarizing tactics. 
Defenders of a failed and costly status quo have never been more vocal 
in their opposition to actions that are essential to salmon 
restoration, including the restoration of the lower Snake River and its 
wild salmon and steelhead.
    In a recent congressional field hearing, for example, supporters of 
the status quo asserted that salmon runs are not in any imminent danger 
and are increasing--despite the fact that Snake River runs are hovering 
near extinction levels.\6\ They also provided exaggerated and 
misleading information about the role these dams play in our regional 
economy. And remarkably, not a single Tribal representative was invited 
to testify, despite the fact that Tribes have been the first and worst 
impacted by generational declines in the salmon runs.\7\
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    \6\ See The Spokesman Review, Environmentalists, politicians clash 
over Republican hearing to defend Snake River dams (June 26, 2023), 
available at https://www.spokesman.com/stories/2023/jun/26/
environmentalists-politicians-clash-over-republica/
    \7\ Id.
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    Misinformation and polarizing tactics will never form the backbone 
of a durable solution. Building support for a real and durable solution 
starts by acknowledging the facts. We ask you to lend your voices to 
elevate fact over divisive rhetoric.
    It is critical that Congress and the Administration work with 
Tribal Nations, stakeholders, and all others in the Northwest to 
implement a comprehensive solution that will restore healthy and 
abundant salmon in the Columbia and Snake Rivers, provide a long-
overdue measure of justice for Native American Tribes, and ensure a 
successful transition to a strong and robust future.

            Sincerely,

        Liz Hamilton,                 Leda Huta,
        Executive Director            Executive Director
        Northwest Sportfishing 
        Industry Association          Endangered Species Coalition

        Bradley Williams,             Lennon Bronsema,
        Associate Advocacy Director   Acting CEO
        Sierra Club                   Washington Conservation Action

        Tiernan Sittenfeld,           Lindsey Scholten,
        Sr Vice Pres. for Gov. 
        Affairs                       Executive Director
        League of Conservation 
        Voters                        Oregon League of Conservation 
                                      Voters

        Giulia Good Stefani,          Travis Williams,
        Senior Attorney, Oceans       Executive Director
        Natural Resources Defense 
        Council                       Willamette Riverkeeper

        Rev. AC Churchill,            Nic Nelson,
        Executive Director            Executive Director
        Earth Ministry/Washington 
        Interfaith Power and Light    Idaho Rivers United

        Shawn Cantrell,               Rick Williams PhD,
        Vice Pres., Field 
        Conservation                  Board Member
        Defenders of Wildlife         Fly Fishers International

        Thomas O'Keefe,               Whitney Neugebauer,
        Northwest Regional Director   Executive Director
        American Whitewater           Whale Scout

        Joseph Bogaard,               Tom Uniack,
        Executive Director            Executive Director
        Save Our wild Salmon 
        Coalition                     Washington Wild

        Shari Tarantino,              Donald Miller,
        Executive Director            Environmental Liaison
        Orca Conservancy              Snohomish County Indivisible

        Brian Brooks,                 Rialin Flores,
        Executive Director            Executive Director
        Idaho Wildlife Federation     Conservation Voters for Idaho

        Nancy Hirsh,                  Trish Rolfe,
        Executive Director            Executive Director
        NW Energy Coalition           Center for Environmental Law & 
                                      Policy

        Norm Ritchie,                 Kyle Smith,
        Board Member                  Snake River Director
        Association of Northwest 
        Steelheaders                  American Rivers

        Julian Matthews,              Deborah A. Giles, PhD,
        Co-Founder                    Science & Research Director
        Nimiipuu Protecting the 
        Environment                   Wild Orca
        Glen Spain,                   Rich Simms,
        Northwest Regional Director   Founder and Board Member
        Pacific Coast Federation of 
        Fishermen's Associations      Wild Steelhead Coalition

        Joel Kawahara,                Mitch Cutter,
        Board Member                  Salmon and Steelhead Associate
        Coastal Trollers 
        Association                   Idaho Conservation League

        Lauren Goldberg,              Bob Rees,
        Executive Director            Executive Director
        Columbia Riverkeeper          Northwest Guides and Anglers 
                                      Association

                                 ______
                                 

    Ms. Stansbury. Thank you very much, Mr. Chairman.
    I would just like to take one short moment, with your 
permission, to correct the record on the previous statements 
that were just made.
    Global circulation models show that under all carbon 
scenarios, including the highest levels of emissions and if we 
hit our global goals for carbon, that we will continue to see 
increased heating and challenges around changing weather and 
climatic issues. So, we can't make up the science here, and I 
think it is important that the record reflect that the last 
statements were untrue. Thank you.
    Dr. Gosar. I don't know that they were untrue. I think you 
have to didactically look at them. I mean, I think we occupy 
such a small point of time on this world. Take a look at trees. 
Trees tell us a lot more. Rocks tell us a lot more. So, you 
have to constantly go back to the data to keep checking and 
reassessing it. And that is why peer review comes into place. 
That is a big key.
    So, from that standpoint, I am going to tell everybody 
thank you very much for the debate. I appreciate it. I thank 
the witnesses for all their comments and testimony.
    The members of the Committee may have some additional 
questions for you, and we ask that you respond to these in 
writing. Under Committee Rule 3, members of the Committee must 
submit questions to the Subcommittee Clerk by 5 p.m. on 
September 19. The hearing record will be held open for 10 
business days for those responses.
    If there is no further business, we are adjourned.

    [Whereupon, at 11:50 a.m., the Subcommittee was adjourned.]

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