[Senate Hearing 119-36]
[From the U.S. Government Publishing Office]
S.Hrg. 119-36
IMPROVING THE FEDERAL ENVIRONMENT REVIEW
AND PERMITTING PROCESS
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
ONE HUNDRED NINETEENTH CONGRESS
FIRST SESSION
----------
FEBRUARY 19, 2025
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Printed for the use of the Committee on Environment and Public Works
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.govinfo.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
59-857 PDF WASHINGTON : 2025
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COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
ONE HUNDRED NINETEENTH CONGRESS
FIRST SESSION
SHELLEY MOORE CAPITO, WEST Virginia, Chairman
KEVIN CRAMER, North Dakota SHELDON WHITEHOUSE, Rhode Island,
CYNTHIA M. LUMMIS, Wyoming Ranking Member
JOHN R. CURTIS, Utah BERNARD SANDERS, Vermont
LINDSEY O. GRAHAM, South Carolina JEFF MERKLEY, Oregon
DAN SULLIVAN, Alaska EDWARD J. MARKEY, Massachusetts
PETE RICKETTS, Nebraska MARK KELLY, Arizona
ROGER WICKER, Mississippi ALEX PADILLA, California
JOHN BOOZMAN, Arkansas ADAM B. SCHIFF, California
JON HUSTED MORGAN, Ohio LISA BLUNT ROCHESTER, Delware
ANGELA ALSOBROOKS, Maryland
Adam Tomlinson, Republican Staff Director
Dan Dudis, Democratic Staff Director
C O N T E N T S
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Page
FEBRARY 19, 2025
OPENING STATEMENTS
Capito, Hon. Shelley Moore, U.S. Senator from the State of West
Virginia....................................................... 1
Whitehouse, Hon. Sheldon, U.S. Senator from the State of Rhode
Island......................................................... 3
WITNESSES
Harrell, Jeremy, CEO, Clearpath.................................. 5
Prepared statement........................................... 8
Responses to additional questions from Senator Wicker........ 16
Responses to additional questions from Senator Whitehouse.... 18
Responses to additional questions from Senator Markey........ 19
Pilconis, Leah, General Counsel, The Associated General
Contractors of America......................................... 21
Prepared statement........................................... 23
Responses to additional questions from Senator Wicker........ 38
Responses to additional questions from Senator Whitehouse.... 38
Responses to additional questions from Senator Markey........ 39
Harris, Carl, Chairman of the Board, National Association of Home
Builders....................................................... 40
Prepared statement........................................... 42
Responses to additional questions from Senator Wicker........ 56
Responses to additional questions from Senator Whitehouse.... 57
Booker, Brent, General President, Liuna Action Network........... 60
Prepared statement........................................... 63
Responses to additional questions from Senator Whitehouse.... 69
Responses to additional questions from Senator Wicker........ 70
Pavia, Nicole, Director, Clean Energy Infrastructure Deployment,
Clean Air Task Force........................................... 71
Prepared statement........................................... 73
Responses to additional questions from Senator Whitehouse.... 88
Responses to additional questions from Senator Markey........ 99
ADDITIONAL MATERIAL
Associated Builders and Contractors.............................. 243
National Mining Association...................................... 246
Waters Advocacy.................................................. 250
Western Governors Association.................................... 254
Family Farm Alliance............................................. 258
Merced Irrigation District....................................... 266
Portland Cement Association...................................... 270
Border Trade Alliance............................................ 274
Pacific Northwest National Laboratory, Planning and Development
Pathways to Interregional Transmission......................... 279
Pacific Northwest National Laboratory............................ 331
Association of American Railroads................................ 336
NESARC, National Endangered Species Act Reform Coalition......... 338
PPI Radically Pragmatic, Building the World's Most Advanced
Energy Economy: A More Ambitious Approach to American Energy
Permitting Reform.............................................. 340
AGC, The Construction Association................................ 469
Hunton Andrews Kurth............................................. 475
Paul Noe, The American Forest & Paper Association and American
Wood Council................................................... 495
American Forest & Paper Association.............................. 498
Texas Department of Transportation............................... 525
CASA, California Association of Sanitation Agencies.............. 556
National Governors Association................................... 560
The National Hydropower Association, Inc......................... 563
Advocates for Climate Innovation................................. 573
GDOT, Georgia Department of Transportation....................... 579
INGAA, Interstate National Gas Association of America............ 590
NRECA, America's Electric Cooperatives........................... 595
AASHTO, American Association of State Highway and Transportation
Officials...................................................... 598
American Chemistry Council....................................... 608
ACI, Airports Council International.............................. 610
AGA, American Gas Association.................................... 614
API, American Petroleum Institute................................ 648
APTA, American Public Transportation Association................. 651
Bipartisan Policy Center......................................... 660
Wall Street Journal, James L. Connaughton; A Simply Way to Cut
NEPA's Red Tape................................................ 748
Energy Environment Program....................................... 750
Statement of James L. Connaughton................................ 761
Power Delayed: Economic Effects of Electricity Transmission and
Generation Development Delays.................................. 783
Environmental Policy Innovation Center........................... 792
Resource Development Council..................................... 802
The Nature Conservancy, Improving the Environmental Permitting
Process for Clean Energy Infrastructure........................ 808
ACC, American Coalition Action................................... 894
ACEC, American Council of Engineering Companies.................. 896
American Clean Power Association................................. 898
David E. Adelman, Dispelling the Myths of Permitting Reform and
Identifying Effective Pathways Forward......................... 907
Department of Transportation United States of America,
Modernizing NEPA Challenge..................................... 925
American Lung Association........................................ 961
American Rivers.................................................. 964
Carnegie Mellon University....................................... 1013
Center for Biological Diversity.................................. 1014
CBrain the Process Company....................................... 1023
Carbon Capture Coalition......................................... 1027
Climate Justice Alliance......................................... 1032
Climateworks..................................................... 1039
Carbon Management Alliance....................................... 1041
Carbon Removal Alliance.......................................... 1049
Citizens for Responsible Energy Solutions........................ 1052
Data Center Coalition............................................ 1076
Environmental Defense Fund....................................... 1101
EEI, Edison Electric Institute................................... 1112
FCHEA, Fuel Cell & Hydrogen Energy Association................... 1117
Geothermal Rising Policy......................................... 1123
Humane World for Animals & Humane World Action Fund.............. 1132
IFAW, International Fund for Animal Welfare...................... 1135
Institute for Policy Studies..................................... 1137
NABTU, North America's Building Trades Unions.................... 1141
NACO, National Association of Counties........................... 1142
National Association of Flood and Stormwater Management Agencies. 1146
NEPAcess, University of Arizona.................................. 1152
Newmont.......................................................... 1161
NGSA, Natural Gas Supply Association............................. 1164
National Wild Turkey Federation.................................. 1176
Mary O'Brien, Permitting Reform Experiences...................... 1182
Oceantic Network................................................. 1184
PacifiCorp....................................................... 1187
Pattern.......................................................... 1200
Dena Horton, Deputy Director, Pacific Northwest Waterways
Association.................................................... 1205
Southern California Edison....................................... 1208
SEIA, Solar Energy Industries Association........................ 1212
SELC, Southern Environmental Law Center.......................... 1216
Nature Sustainability, Environmental Impact Assessments not the
Main Barrier to Timely Forest Management in the United States.. 1219
Nature Portfolio................................................. 1224
The Wilderness Society........................................... 1227
U.S. Chamber of Commerce......................................... 1235
USET, Sovereignty Protection Fund................................ 1238
Vaulted Deep..................................................... 1242
WEACT For Environmental Justice.................................. 1244
Building Transmission to Securea Clean & Equitable Electricity
Grid........................................................... 1254
Community Engagement Brief....................................... 1260
Testimony of Susan M. Brown, Western Environmental Law Center.... 1273
T. Lane Wilson, Senior Vice President and General Counsel,
Wiliams........................................................ 1281
Zeta, Zero Emission Transprotation Association................... 1284
Acore, American Council of Renewable Energy...................... 1286
Setting the Record Straight on Florida's 404 Program............. 1299
Letter of Support for Restoring America's Everglades............. 1302
NEI, Nuclear Energy Institute.................................... 1305
IMPROVING THE FEDERAL ENVIRONMENTAL REVIEW AND PERMITTING PROCESS
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WEDNESDAY, FEBRUARY 19, 2025
U.S. Senate,
Committee on Environment and Public Works,
Washington, DC.
U.S. Senate Committee on Environment and Public Works
Washington, DC.
The committee met, pursuant to notice, at 10:18 a.m. in
room 406, Dirksen Senate Office Building, Hon. Shelley Moore
Capito (chairman of the committee) presiding.
Present: Senators Capito, Whitehouse, Cramer, Lummis,
Curtis, Ricketts, Wicker, Husted, Merkley, Kelly, Padilla,
Schiff, Blunt Rochester, Alsobrooks.
OPENING STATEMENT OF HON. SHELLEY MOORE CAPITO,
U.S. SENATOR FROM THE STATE OF WEST VIRGINIA
Senator Capito. Good morning. Welcome. Sorry I didn't get
to shake your hands. I will do that as we move through. I
apologize for being a few minutes late.
I want to start with my opening statement, then I will go
to the Ranking Member, then we will have our witnesses. Good
morning again, and thank you all for being here. It is very
nice for you to come on such a critical issue to our Nation's
future, the need to modernize our Federal environmental review
and permitting processes, something we have talked about
endlessly, both to grow our economy and also to improve our
environmental stewardship. I am really excited about this
hearing.
Our witnesses will share their valuable perspectives and
set the stage for the EPW committee's work on this important
topic. To ensure we take a holistic view of these issues, we
will keep this morning's hearing record open until March 21st
to give all stakeholders the opportunity to share their
experiences with the existing environmental review and
permitting processes, identify challenges, and then, hopefully,
to suggest potential solutions.
For too long, critical projects such as energy and
infrastructure projects, along with industrial projects as
well, have been trapped in a cycle of redundant reviews,
shifting goalposts, and regulatory uncertainty. In my home
State of West Virginia, I have seen firsthand how these drive
up costs, these delays, not just for the projects, but for the
American families who are paying for more energy, housing, and
food as a result.
Meanwhile, businesses lack the certainty necessary to make
long-term investments, which can mean lost jobs, missed
economic opportunities for communities, scarcity, and higher
prices across the Nation. It can also mean that the projects
needed to deploy renewable energy technologies, or to restore
the environment, are also stilted.
The framework for our environmental review and permitting
processes is grounded in landmark laws under this committee's
jurisdiction. NEPA requires Federal agencies to consider
environmental impacts on federally funded projects or before
implementing their project.
Other environmental and resource laws like the Clean Water
Act, the Clean Air Act, and the Endangered Species Act rely on
permits and operational requirements to ensure that critical
projects are able to come to fruition in environmentally
responsible ways. However, years of changes in guidance and
regulations from administration to administration and a complex
web of judicial rulings have resulted in an ever-expanding
hodge-podge of often duplicative and contradictory
requirements.
While this confusing and complex body of administrative and
common law has grown over the past half century, Congress has
not stepped in to provide the holistic clarifications and
modernizations. In the absence of congressional action, certain
parties have found creative ways to use the judicial process to
delay, remand, or strike down projects and raise costs to
discourage project sponsors from moving forward.
As a result, environmental review and permitting processes
have increased costs and delayed or stopped projects, including
projects that would help achieve the goals in our environmental
laws.
Last week, the House Transportation and Infrastructure
Committee heard testimony from Nucor about how the need to
obtain a Clean Water Act permit triggered significant delays
based on required reviews under the Endangered Species Act and
the National Historic Preservation Act. These permitting delays
nearly thwarted what will be among the most environmentally
friendly steel production facilities in the world, and that
will employ over 1,000 people in Mason County, West Virginia.
It literally took an act of Congress to permit the Mountain
Valley Pipeline to move clean natural gas from West Virginia to
our southern neighbors, and I am sure they are loving it today,
as the temperatures are dipping. I heard it is 2 degrees in
Austin and it is snowing to beat the band in West Virginia
right now. So it is cold everywhere.
What is it in North Dakota?
Senator Cramer. It is 47 below.
Senator Capito. Forty-seven below, OK.
[Laughter.]
Senator Capito. Sorry, Austin, you just got tripped.
Corridor H and Coalfields Expressway, two top highway
priorities for the State of West Virginia that would improve
safety and mobility, have both encountered multiple permitting
delays under various environmental statutes. West Virginia
water line extensions, broadband projects, bridge replacements,
have all faced Federal permitting delays, and I am sure my
State is not unique. The problems we will explore today have
been brewing for decades.
However, this Congress, we have an opportunity, I think, to
deliver meaningful, bipartisan legislation that addresses these
problems. I am committed to working with Ranking Member
Whitehouse, our colleagues on the Energy and Natural Resources
Committee, and those House committee counterparts to produce a
bill with meaningful reforms.
Durable and implementable environmental review and
permitting process reform must be bipartisan to be successful.
My guiding principles for this effort are straightforward: the
legislation that we develop must help all types of projects,
not just politically favored projects or projects that will
support the infrastructure needs of some Americans but not
others. We must provide clarity and transparency in the
processes.
Finally, our legislation needs to look at every stage of
these processes to find efficiencies while balancing public
health, the environment, and the needs of our economy. Let me
be clear: modernizing these processes does not mean cutting
corners or weakening environmental and public health
protections. It means making the processes more efficient, more
predictable, and more transparent so that the processes are not
stuck in bureaucratic purgatory or endless litigation.
Hardworking Americans, small businesses, and entrepreneurs
want a government that works for them, not one that keeps them
waiting for the benefits that many of the projects promise to
bring in their communities and household budgets.
So I look forward to the discussion today, and learning
about our witnesses' experience. I am hopeful that we can hear
some consensus on the issues that this committee must focus our
attention, so we can develop our legislation.
With that, I look forward to hearing from our witnesses
today and beginning the effort together to deliver real
solutions for the American people.
And I now yield to the Ranking Member, Senator Whitehouse.
OPENING STATEMENT OF HON. SHELDON WHITEHOUSE,
U.S. SENATOR FROM THE STATE OF RHODE ISLAND
Senator Whitehouse. Thank you, Chairman. Off we go again,
on this bipartisan journey to catch the elusive white whale,
permitting reform.
[Laughter.]
Senator Whitehouse. This hearing's witnesses will highlight
the challenges people face building a variety of projects. But
as Chair Capito said, we want more. We will keep our record
open for that month to hear from all other interested
stakeholders about their experiences and their recommendations.
Help us find where you have encountered barriers and what
solutions have worked well.
We also know that permitting reform is not exclusive to our
committee, so the Chair and I are already engaged with our
colleagues in the Energy and Natural Resources Committee and in
the House.
A word of warning, however: Democrats cannot agree to any
permitting reform unless and until the Trump administration
ends its lawless disregard for congressional authority and
judicial orders. Billions in obligated funds remain frozen
behind a fog bank of silent executive contumacy in blatant
disregard of constitutional separation of powers, direct court
orders, and basic principles of law.
I have to note, as a former U.S. Attorney, I am
particularly disgusted with DOJ, where things are so bad that
deeply conservative career prosecutors have resigned rather
than carry out corrupt orders from Trump cronies. But it is
everywhere, and it is hurting people and projects.
Until the administration shows that it will honor its oath
to faithfully and impartially execute the laws, we can have
zero confidence that any legislative compromise on permitting
reform will be executed lawfully. It falls to my Republican
friends to bring this lawless unconstitutional madness to an
end. And I wish them good luck on that.
On energy, we have particular reason to doubt the Trump
administration will faithfully execute any permitting law we
pass. The President has declared a fake energy emergency,
despite record production in America; and defined energy to
exclude renewables, the fastest growing energy sector, all
after receiving, minimum, $100 million from fossil fuel donors.
We are deep into a political quid pro quo, bought by the
world's biggest polluters, and China is chortling at the
spectacle.
I don't see a path to getting a bill until this lawlessness
stops, and I don't see a path for a bill that excludes offshore
wind, an industry with great jobs, huge growth potential, and a
supply chain that already extends into 40 States. The men and
women building these projects do not want them stopped, as
General President Booker can attest. Coastal States don't want
them stopped. Leasing has occurred in Federal waters off nearly
every coastal State. Nor do the industries that support
offshore wind, the Louisiana shipyards, the Midwest factories,
the ports like Quonset, generating economic growth across our
Country. Neither do consumers, who overwhelmingly want cheaper,
cleaner, and more reliable energy.
Why would we want to pull America out of the clean energy
race when investment last year topped $2 trillion, far
exceeding investment in fossil fuels? What fools we would be.
If you want a future driven by Chinese innovation, Chinese
industry, and Chinese power, keep it up. But you can't change
the fact that the future of energy is clean, and that if we are
not part of it, we will be left behind.
The North American Electric Reliability Corporation, NERC,
projects that peak demand will grow by 15 percent for summer
peaks and 18 percent for winter peaks over the next 10 years,
raising concerns about energy shortfalls, as our Chair has
pointed out in prior hearings. What would reduce the risk of
those shortfalls? Better permitting.
We need to build out a grid to meet current and future
demand. Seventy percent of transmission lines are more than 25
years old, and showing their age. We know what we need to do.
We need to build, and fast.
Right now, thousands of electricity generation projects are
awaiting approval to connect to the grid. As of last April, 2.6
terawatts, millions of engineering, construction and
manufacturing jobs, stalled in part, because of our inability
to build transmission lines. This must change.
As I said last week, we have entered the era of climate
consequences. The stuff the scientists warned us would happen
is happening. Snicker all you want about Green New Deals,
ignore all you want collapsing coastlines glaciers and coral
reefs and fisheries.
Pope Francis said, ``Slap Mother Nature and she will slap
you back.'' The economic slap-back is here now, in skyrocketing
home insurance prices and failing home insurance markets. I
will say it again: when climate havoc hits property insurance
markets, it then hits mortgage markets, which then tanks
property values, so hard it can take down the whole economy.
You may have missed it, but last week the Fed Chairman in
Senate testimony predicted that in the next 10 to 15 years
there will be regions of the Country where you can't get a
mortgage any more. When that all hits the fan, Americans will
be very interested in who helped and who obstructed.
Pretending solar and wind energy aren't even energy will
look awfully dumb. And not permitting and building a clean,
modern grid will look grossly negligent. So let's stop the law-
breaking and start the grid-building together.
Senator Capito. I like that last word, that is good.
Our first witness is Jeremy Harrell. Mr. Harrell is the CEO
of ClearPath, a non-profit which advocates for polices that
reduce global energy emissions. Mr. Harrell has served in a
multitude of energy and environmental advisory positions on
Capitol Hill, and he is the Chair Emeritus of the U.S. Nuclear
Industry Council's board of directors.
Mr. Harrell, I will recognize you for 5 minutes. Thank you
for coming.
STATEMENT OF JEREMY HARRELL, CHIEF EXECUTIVE OFFICER,
CLEARPATH, INC.
Mr. Harrell. Thank you, Chairman Capito, for the kind
introduction, and thank you, Ranking Member Whitehouse and
members of the committee, for the opportunity to testify today.
My name is Jeremy Harrell, and I am the Chief Executive
Officer of ClearPath.
America is at the dawn of a new era of unprecedented energy
demand, fueled by robust economic growth, a revival of American
manufacturing and advances in AI and quantum computing. These
developments present new challenges yet offer immense
opportunities for our Country to build big.
The regulatory process is not only unpredictable, but it is
also one of the largest barriers to meeting energy, climate and
economic development goals at the Federal, State and local
level.
In the face of skyrocketing demand growth, building more
energy resources has become more urgent. We need to let America
build.
NERC reported that annual demand growth rates are nearly
double those of the last decade, when roughly three projects
were added to the grid per day. But to meet that demand, we may
need to build around six projects a day, or 16,000 facilities
by 2035. And we will need a broad suite of technologies to do
it.
These challenge are present in nearly every sector of the
economy, from energy to housing to transportation projects. To
be clear, the solution is not a development free-for-all. The
regulatory environment must balance speed and safety. But the
solution requires step-change reform, not tweaks around the
edges.
Reforms that demand accountability and promote good
outcomes as fast as possible should start with three key
objectives. One, leverage innovative American technologies;
two, expedite reviews; and three, streamline judicial review of
administrative actions.
First, Congress could require more accountability, provide
more transparency and direct the use of modern technology.
There is a clear need for more reliable information from
Federal agencies, ranging from the number of permits under
review to how long they have been stuck in limbo.
In many cases, Federal agencies are not even using the same
systems or terminology. More transparent data will help with
accountability and provide the public with information to
participate.
Congress should also consider the role of AI, machine
learning, and other state-of-the-art technologies to reduce the
burden of project reviews.
Our system is still stuck in the 1990's. Technology reforms
are the lowest-hanging fruit for bipartisan action.
Second, we must expedite the review process. Faster
approvals for projects that bring net benefits and comply with
existing environmental laws are essential to meeting our
Nation's needs.
Congress could expand categorical exclusions to permit
projects. Categorical exclusions are a one-time determination
under NEPA that certain activities to not warrant the
substantial data collection and review that comes with site-
specific EAs, NEISs. However, they still require agency
decisions for each site.
There is bipartisan support in Congress to accelerate low-
impact energy projects like geothermal exploration to eliminate
redundant reviews. A permit by rule approach could also offer
significant benefits, balancing administrative speed with
safeguarding public health, safety and the environment. To do
this, the criteria must be well-defined, periodically reviewed,
and aligned with the overall regulatory framework.
Encouraging development in certain pre-qualified geographic
areas could also accelerate projects. Previously disturbed
lands or well characterized areas like brownfields present
opportunities to leverage electrical and mechanical
infrastructure. The impacts of this development are minimal in
most cases and are in or near the communities that need the
economic growth the most.
Last, the judicial review of agency actions must be
reformed. The current system is tilted toward those who seek to
delay or block projects. For example, a recent analysis found
litigation delayed fossil energy and clean energy projects by
an average of 4 years. Agencies won 71 percent of those
challenges.
Separately, an analysis on transmission projects found 24
percent of projects that completed environmental review faced
litigation, and the agency won 88 percent of those cases.
If major infrastructure projects are regularly delayed by
legal challenges that are ultimately overturned, it is time to
reassess whether our current system is protecting consumers or
protecting project opponents. Congress could consider limiting
legal challenges to plain errors related to natural resources
laws, narrowing the scope, and setting strict review timelines.
Without changes, our Nation is needlessly undermining our
own economic development and climate goals.
In conclusion, the U.S. is in a global competition for
energy leadership. China and Russia are deploying billions of
dollars around the world to advance their geostrategic
interests, to control the sector and connected supply chains.
We must overcome our regulatory challenges to counter these
efforts and meet domestic energy, economic and environmental
needs. It is time to let America build.
Thank you.
[The prepared statement of Mr. Harrell follows:]
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Senator Capito. Together.
Senator Whitehouse. I like that.
Senator Capito. You like that? OK.
Senator Whitehouse. You may be onto something with that.
Senator Capito. Our next witness is Leah Pilconis, General
Counsel for the Associated General Contractors of America. Over
her 25-year career with AGC, Ms. Pilconis has served in
multiple leadership positions, including as Senior
Environmental Counsel and Associate General Counsel for
Construction and Environmental Risk Management. She is also a
host of AGC's Constructor Cast podcast.
I will now recognize Ms. Pilconis for her opening
statement.
STATEMENT OF LEAH PILCONIS, GENERAL COUNSEL, THE ASSOCIATED
GENERAL CONTRACTORS OF AMERICA
Ms. Pilconis. Thank you very much.
Chairman Capito, Ranking Member Whitehouse, and members of
the Environment and Public Works Committee, thank you for the
opportunity to speak today. I appreciate your leadership and
bipartisan efforts to improve the Federal environmental review
and permitting processes. These efforts are critical to
ensuring that we can deliver much-needed infrastructure
projects in a timely and cost-effective manner, while
maintaining strong environmental protections.
As General Counsel at the Associated General Contractors of
America I have learned how delays in environmental approvals
don't just hold up projects, they cause work force instability,
drive up costs, and jeopardize investments in critical
infrastructure. These delays also impact the communities that
rely on these projects for jobs, economic growth and modern
safe infrastructure. We need to ensure timely project
approvals, minimize litigation risks, and maintain economic
growth.
Here are four ways Congress can help. One, establish a
uniform judicial review period. NEPA lawsuits can stall
projects for years, even after they have undergone extensive
environmental review. Litigation is increasingly being used as
a tool to obstruct critical projects. This undermines planning,
increases costs, and deters investments.
While Congress has protected some infrastructure projects
with a 150-day legal limit on challenges, most construction
projects remain vulnerable to lawsuits for up to 6 years under
the Administrative Procedures Act.
AGC urges Congress to standardize the 150-day limited
judicial review period for all critical infrastructure
projects, and eliminate unnecessary procedure hurdles that
create prolonged uncertainty. Once a project receives final
environmental approval, it should not remain in legal limbo for
years.
Two, align environmental reviews with congressional intent.
The Bipartisan Fiscal Responsibility Act was designed to
streamline environmental permitting and prevent unnecessary
delays. However, CEQ's latest NEPA regulations contradict these
reforms.
Congress must hold agencies accountable to ensure NEPA
implementation stays true to the FRA's intent and does not add
new layers of bureaucracy that undermine project delivery.
Three, prevent regulatory fragmentation. Recent court
rulings and executive actions have highlighted the lack of
clarity on NEPA implementation. Without clear statutory
direction, agencies may adopt conflicting rules, making
projects even more vulnerable to court challenges and forcing
courts to interpret the law in a post-Chevron environment.
Congress must act to ensure a consistent, reliable
framework for environmental reviews across agencies.
Four, make permitting reform a durable, bipartisan
legislative solution. Permitting rules should not shift with
each administration. Congress must ensure agencies implement
reforms consistently and Congress must provide oversight to
prevent regulatory overreach.
The U.S. Supreme Court's Sackett decision provided much-
needed clarify on Federal jurisdiction under the Clean Water
Act. However, the current Conforming Waters of the U.S.
regulations still fail to align with the ruling, creating
uncertainty and unnecessary delays. AGC urges Congress to hold
agencies accountable for properly implementing Sackett as
intended.
I want to share a few other ways Congress can help reduce
Clean Water Act 404 permitting delays. Protect general permits,
codify key exemptions, such as for roadside ditches and
stormwater features. Expedite jurisdictional determinations,
ensure mitigation requirements are reasonable and backed by
adequate mitigation credit availability.
AGC supports bipartisan permitting reforms and urges
Congress to ensure agencies follow congressional intent.
Cutting red tape and limiting unnecessary litigation will help
deliver critical infrastructure projects on time and on budget.
Most importantly, Congress must provide certainty by
ensuring that once environmental approvals are final agency
actions, projects should not be threatened years later.
Thank you, and I look forward to your questions.
[The prepared statement of Ms. Pilconis follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Capito. Thank you very much.
Our next witness is Carl Harris. Mr. Harris is the Chairman
of the Board for the National Association of Home Builders. He
has been building homes for 40 years in Wichita, Kansas, at
Carl Harris Company, the firm he founded in 1985 with his
father and sister.
We want to thank him for spending time with us this morning
before he heads to the NAHB International Builders Show later
this week in Las Vegas.
I will now recognize Mr. Harris for his opening statement.
STATEMENT OF CARL HARRIS, CHAIRMAN OF THE BOARD, NATIONAL
ASSOCIATION OF HOME BUILDERS
Mr. Harris. Chairman Capito, Ranking Member Whitehouse, and
members of the committee, I appreciate the opportunity to
appear before you today. As a small business owner, I
understand the immense challenges that our members experience
as they navigate the permitting process, because creating homes
for Americans starts with successful permitting.
The U.S. has a shortfall of over 1.5 million housing units.
In the easy places to build, homes have already been laid out,
which means the Nation's home builders are going to
increasingly run into environmental permitting regulations for
undeveloped land. We want to improve this regulatory process so
that home builders can accomplish two fundamental goals:
safeguarding the environment and creating attainable housing
for Americans.
Regrettably, American home buyers are suffering through a
record low housing attainability. According to NAHB's Priced-
Out study, 77 percent of buyers are unable to afford just the
median price of a new home. Every small price increase has a
sharp exclusionary effect. And on average, every $1,000 that
gets added to a home's cost locks out 106,000 households that
will be priced out of the market.
Uncertainty and delays in permitting needlessly add cost to
the construction process, which increases home prices and
pushes the American dream away from others entering the market.
While the Clean Water Act serves as a crucial foundation
for protecting the Nation's waterways, the implementation of
certain aspects of Section 404 and mitigation bank approvals
are a major source of frustration for our members.
Let's consider a property owner who wants to build homes on
undeveloped land. They want to know if the water features on
their property fall under Federal jurisdiction. To determine
this and avoid Federal penalties, they need an approved
jurisdictional determination, an AJD.
Unfortunately, obtaining AJDs are not prioritized under the
Army Corps and take well over a year to obtain. Rather than
languish waiting for an AJD, home builders will roll the dice
and try for a quicker preliminary jurisdiction determination,
known as a PJD. But a PJD has several hooks. It is not
appealable, it allows water features to be considered
jurisdictional, even if they are not covered by the Clean Water
Act, and can preclude the use of the nationwide permit.
We should be able to tell home builders if there are
Federal jurisdictional features on their property without
forcing them into the problematic PJD.
Congress created the streamlined nationwide permit under
Section 404, which is meant to be completed within 60 days for
minimal impacts on water features. But members routinely report
that it is taking almost a year to obtain these, which is
rivaling the time it takes to complete the more rigorous
individual permit required for larger environmental impacts.
This timeline is unacceptable for a permitting tool that is
meant to be fast and predictable.
Digging deeper under the 404, we have the Clean Waters of
the U.S. Rule, which has been subject to litigation and
administration changes. This non-stop whiplash has confounded
our members about which water features on their property are
federally jurisdictional, with key regulatory terms like
continuous surface connection and relatively permanent water
that have been left undefined and open to interpretation based
on which Army Corps district you are in. This lack of harmony
promotes confusion and uncertainty.
As part of the 404 permitting, builders are often required
to purchase mitigation credits to offset the impacts to
wetlands. For example, a member in Ohio told us that the
credits for his project cost about $140,000 due to the two-to-
one mitigation requirement. When you break it down per home
lot, this adds $10,000 to the cost of a new home.
A driving force behind these exorbitant credit prices is
the shortage of mitigation banks across the Nation. It is
extremely challenging for bank sponsors to come online, which
disincentivizes participation. This leaves home builders
competing against others over limited credits and drives up the
cost.
To be able to build the millions of housing units needed
across this Nation at an attainable price, the residential
construction industry needs a more clear and predictable
environmental permitting process. We need to prioritize the AJD
process, recenter the nationwide permit, and encourage
mitigation bank creation are all the ways we can do to chip
away at this problem.
I thank you for the opportunity to speak.
[The prepared statement of Mr. Harris follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Capito. Thank you very much.
Our next witness is Brent Booker. Mr. Booker is the General
President of the Laborers' International Union of North
America. He is a third generation member of Laborers' Local 795
in North Albany, Indiana, and started his career in LIUNA's
mail room.
Mr. Booker also served as director of the Union's
construction department and in various positions with North
American Building Trades unions. I welcome you, and now
recognize you for your opening statement.
Thank you.
STATEMENT OF BRENT BOOKER, GENERAL PRESIDENT, LABORERS'
INTERNATIONAL UNION OF NORTH AMERICA
Mr. Booker. Good morning, Chairman Capito, Ranking Member
Whitehouse and members of the committee. My name is Brent
Booker, General President of the Laborers' International Union
of North America.
LIUNA was founded over 120 years ago by immigrant workers
fleeing their countries to seek not only better life, but the
American dream. Today, we are a strong, proud, diverse union
representing over 530,000 workers across the United States and
Canada.
LIUNA members go to work every day, building and
maintaining our Nation's infrastructure. From our endless
highways, bridges, and tunnels, city skyscrapers, water
treatment centers, to our Nation's vast energy sector, our
members' jobs touch every American's day-to-day life.
Our Nation's boom in energy production has provided an
abundance of jobs for our membership. Our Union has always
promoted an all-of-the-above approach to energy production:
renewables, oil and natural gas, hydropower, nuclear, because
we build it all.
As union laborers, we take pride in our work. We are the
safest, most productive and well-trained work force in the
world. We get jobs done right, on time the first time, safely,
and on budget.
LIUNA was inherently involved in both Federal and State
permitting. When we know a project will be built by hardworking
laborers, we embed ourselves within the project's regulatory
process to ensure it is approved in a timely manner. We are the
folks in orange shirts you see at public utility hearings and
community hearings. That is because in our business,
predictability of projects is crucial.
Our members move from job to job, stringing together the
projects that over many years build their career. While we
believe in a responsible approach to permitting infrastructure
projects, it is clear that our current permitting process is
broken.
Whether it is purposely stalling the NEPA process of filing
what feels like countless, frivolous lawsuits, leaving project
in limbo and our members wondering when they will get paid
next. A project can be fully funded and ready to go, then out
of nowhere get hit with a deluge of lawsuits and get shut down.
Unpredictability equals unemployment for our members. These
projects are not political to them. They are pathways to a
middle class way of life that includes family supporting wages,
good health care benefits, and the ability to 1 day retire with
dignity. If our members don't go to work, they don't get paid.
So when a project is delayed months or even years, well, you
try to deliver that message to someone who has a mortgage
payment due or has to buy school supplies for their kids.
Adequate judicial review timelines must be included in any
permitting reform package.
Over the last decade, the pipeline industry predominantly
within natural gas has provided thousands of laborers tens of
millions of work hours. As we continue to expand into more
advanced energy sources such as hydrogen and carbon capture and
utilization, it is clear our training and skill sets will be
vital to a cleaner energy future.
Now, we are seeing these same issues within the renewable
sector. Since the passing of the Inflation Reduction Act,
offshore wind has been a tremendous contributor of jobs for
LIUNA members. Between the harbor and port buildouts, the
turbine construction, to the installation of turbines
themselves, all along our Nation's coastlines, LIUNA members
are building offshore wind projects at a rate like never
before, including America's first offshore wind project in
Rhode Island's Block Island.
Unfortunately, the administration's halt on offshore lease
sales has upended the wind production market and has led to
projects completely withdrawing their construction plans,
costing laborers their jobs. One project is the Starboard Wind
Project, 11,084 megawatt project by Orsted about 30 miles south
of Martha's Vineyard, which was expected to power upwards of
600,000 homes. This one hits home for me. I was proud to have
helped negotiate and implement the National Offshore Wind
Agreement back in 2022 on behalf of the building trades. This
agreement was going to bring back thousands of good union jobs
to workers across the Country.
Now, many of these projects are at risk of being
terminated, causing us to lose significantly more jobs than we
did on the Keystone XL Pipeline, once again leaving our members
high and dry. We must put an end to projects for being used as
pawns on a political chess board. Because it is American
workers that pay the price.
With a simple swipe of the pen, or lack thereof in this
case, these decisions impact the lives of the members we
proudly represent in their communities.
If you take away one thing from my testimony today, please
let it be this: it is LIUNA members who go to work every day
building the American we all use. Whether it is turning the
lights on in the morning or commuting to work on a highway, it
is likely a laborer had a hand in it.
This isn't about politics. It is about ensuring we continue
our energy independence and dominate in a market that when we
don't compete allows us to fall to our adversaries.
For LIUNA, above all it is about ensuring our members are
able to go to a job that afford them the opportunity to be
firmly entrenched in the middle class. To be clear, these
aren't just jobs. They are careers that give our members and
their families a chance to thrive. They are paychecks that
ensure American workers are contributing to their community and
aren't forced to rely on the government to make ends meet. They
are lifelines that allow construction workers to retire with
dignity after they have built the America we all enjoy.
For LIUNA members, these projects are delivering on the
promise of the American dream, which is why I thank you for
granting me the opportunity to speak with you today. I look
forward to your questions.
Thank you.
[The prepared statement of Mr. Booker follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Capito. Thank you, Mr. Booker. I appreciate it.
Finally, our last witness is Nicole Pavia, the Director of
Clean Energy Infrastructure Deployment at the Clean Air Task
Force. She is responsible for leading the organization's
infrastructure team and previously worked in consulting,
concentrating on energy and sustainability projects. She is a
fellow Duke University alumni, a Blue Devil.
STATEMENT OF NICOLE PAVIA, DIRECTOR, CLEAN ENERGY
INFRASTRUCTURE DEPLOYMENT, CLEAN AIR TASK FORCE
Ms. Pavia. That is right. Chairman Capito, Ranking Member
Whitehouse and members of the committee, thank you very much
for the opportunity to testify today.
My name is Nicole Pavia, and I am the Program Director for
Clean Energy Infrastructure Deployment at the Clean Air Task
Force, or CATF. CATF is a non-profit, non-ideological advocacy
group with nearly 30 years of experience in advancing policy
and technology change needed to achieve a zero emissions high
energy economy at affordable cost.
In my role, I lead CATF's work to identify and address
barriers, be they regulatory, permitting, financing, or social,
holding back deployment of clean energy technologies at the
pace and scale we need to decarbonize.
One of our priority technologies is electricity
transmission. Long range interState and inter-regional
transmission lines are critical pieces of our energy system,
and we are not building enough of these lines to meet
reliability, security, affordability, load growth, and clean
generation needs.
Today, significant wholesale electricity price differences
between and within regions exist due to transmission system
congestion. Regions afflicted by severe weather are unable to
access enough electricity from neighboring regions, leading to
economic damage and tragically, loss of life.
Approximately 2,600 gigawatts or 2.6 terawatts of energy
capacity, 95 percent of which is zero-emitting or storage
capacity, sits in interconnection queues today waiting for an
opportunity to plug into the grid. The cumulative effect of our
inability to modernize and update our transmission system is
reflected well in North American Electric Reliability
Corporation's latest long-term reliability assessment. Most of
the North American bulk power system faces increasing resource
and energy adequacy challenges, just as projections show
increasing demand growth.
Given these urgent circumstances, why have long-range
transmission investment and deployment rates decreased and not
increased over the past decade? Some have pointed to Federal
transmission processes and environmental review processes under
the National Environmental Policy Act, or NEPA, as key
culprits. But little evidence and data existed to understand
the truth of these claims.
Therefore, CATF partnered with the Niskanen Center to start
to build the evidentiary record around the drivers of delay in
the Federal transmission permitting process. We consolidated
and analyzed publicly available data and interviewed
developers, permitting officials, and other expert
stakeholders.
As explained further in my written testimony, environmental
reviews under NEPA can certainly be improved. But fundamentally
we found that the provisions of NEPA are not to blame for the
most significant delays and inefficiencies in transmission
deployment.
The most frequently cited slowdowns were largely process
and resource oriented. Most stemmed from gaps in leadership and
Federal agency coordination, lack of steady appropriations for
permitting related tasks, insufficient permitting expertise at
agencies, data inaccessibility, and local opposition to and
lack of State support for nationally beneficial projects.
These are not all permitting specific blockers, but they
often flare up throughout the course of the permitting process.
Another issue is the regulatory differences between
jurisdictions through which long distance transmission lines
may pass. Lines crossing State or tribal borders are not
subject only to Federal permitting requirements, but also to
the requirements of all State and tribal governments traversed.
These requirements can be uncoordinated or duplicative, and
State and tribal resource constraints for permitting are
evident.
Overall, prioritization of a modernized, secure, and
resilient transmission network will require a departure from
the status quo. This includes reforms to the Federal review
process, but it also requires addressing the key drivers of
transmission delay as identified in our report.
In addition to speeding permitting timelines, we should be
increasing specialized agency capacity to efficiently execute
permitting. And we should consolidate siting and permitting
authorities for interState transmission projects in the
national interest under the Federal Energy Regulatory
Commission, just as they are for interState natural gas
pipeline projects.
Thank you, and I look forward to your questions.
[The prepared statement of Ms. Pavia follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Capito. Thank you. Thank you all very much.
I am going to begin with a question for all witnesses. I
believe I know the answer to this one, but both Republican and
Democrat administrations over the last couple decades have
recognized the need to address the environmental review
process, and those administrations have taken efforts through
changes to regulations and guidance to do so.
Despite these efforts, Federal environmental review and
permitting challenges persist. So this is a yes or no. I would
like to ask each of you, do you agree that Congress must come
together to develop a bipartisan bill to tackle these
challenging issues? Mr. Harrell, then we will just go down the
line.
Mr. Harrell. Yes, Senator.
Ms. Pavia. Yes.
Mr. Booker. Yes, Senator.
Mr. Harris. Yes.
Ms. Pilconis. Yes.
Senator Capito. Thank you. Good. I thought I knew the
answer to that.
Ms. Pilconis, under current law and regulation, projects
can take years or even decades to progress from concept to
completing the NEPA process. What are the real-world impacts of
this lengthy timeline for projects on consumers of goods and
services that your members produce?
Ms. Pilconis. Thank you, Senator, for that question.
Senator Capito. Mr. Harris, I am going to go to you with
the same question.
Go ahead, excuse me.
Ms. Pilconis. For the construction industry, delays cause
uncertainty. They also cause work force instability. Our
contractors can't commit to hiring workers, they can't order
materials when there are delays on breaking ground for
projects, often because they are tied up for years with
lawsuits.
Delays also drive up costs. They increase project costs, as
inflation and material shortages make projects more expensive
over time. Delays also increase investments. Delays are
preventing AGC members from building our quality of life and
delivering safe projects that are going to benefit communities.
Senator Capito. OK, across the Country.
Mr. Harris, your homebuilding.
Mr. Harris. Thank you, Madam Chairman.
The cost of permitting adds to the cost of housing. Every
time I, as I said in my testimony, every time you raise the
cost of the house $1,000, you lock out 106,000 family units.
That is substantial.
We speak about the value of homeownership. Well, the value
of homeownership is good for everyone. It stabilizes families,
it stabilizes neighborhoods, it stabilizes communities,
employee bases, volunteer bases. Homeownership is a public
good. And in trying to increase or make better the processes
for permitting, we can decrease the cost.
The time value of money for developers, home builders, adds
to the cost of a house. Right now where we have seen the
average cost of a house go up $90,000 in the last two and a
half years, we have locked so many people out of the American
dream.
Senator Capito. Thank you. I know there is a shortage as
well. So we can get into that maybe later.
I want to ask about judicial review. It came up in almost
everybody's testimony. Many projects are targeted with
litigation all throughout the process. The resulting legal
costs and project delays can be enough to stop a project, which
happened with our Atlantic Coast Pipeline in West Virginia.
So, Mr. Booker, will you describe some of your members'
experiences with litigation after EIS or EA is finalized? You
have your permits in hand, and then you can't go forward. You
kind of outlined it in your statement, saying you can't pay the
worker if you can't move forward.
Can you just expand on that a little bit?
Mr. Booker. Yes, I mean, as I said, you don't get paid
unless you go do work. And you have to have a project to do
that. You also can't just pull a laborer off a shelf and say,
your project starts next Friday.
Senator Capito. Right.
Mr. Booker. We have to prepare for that, we have to train,
we have joint labor-management training that, depending on the
project, whether it is a pipeline or offshore wind or any other
energy sector, we have to train people to do that. In order to
do that, we have to have predictability.
So this litigation, as unpredictability, creates chaos in
the construction industry and it doesn't allow us to get the
safest, most skilled, most productive workers if we don't know
when that job is going to start, or if we are expecting it to
start in a month and then it gets delayed by two, three, 4
months.
So that litigation is causing chaos and chaos in the
industry. Also, it is causing our members not to get paid. That
is the biggest thing for us, it is about jobs, about us to be
able to get people their paycheck.
Senator Capito. Right. Ms. Pilconis, can you elaborate on
that in terms of, is there a specific stage of the court
process that is particularly challenging, or is just through
the whole, you mentioned it can be as long as 6 years. But it
can be probably longer than that, if you can drag it through
court.
Ms. Pilconis. Correct. We know that NEPA is the most
litigated environmental statute. We know that the amount of
lawsuits that are being filed, it is increasing. We know from
current studies and data that it can take multiple years, up to
four and a half years to make your way through the litigation
process, where it is resolved at the appellate level.
Lawsuits can stop projects that have already broken ground
in their tracks through the form of injunctions, studies that
have been done, whether it through an EIS, an EA, or using a
categorical exclusion. Those decisions can be sent back to the
agencies, which is delaying breaking ground. Essentially we
keep having do-overs, even after you have received the project
approval.
There is really good language that Congress and this
committee has already passed in statute to put some limits on
litigation. MAP-21 has a 150-day statute of limitation window.
We are recommending that be applied to all critical
infrastructure projects.
There is also great language in FAST-41, but that is only
applicable to a small number of projects that opt into the
program. But that language requires challengers to raise
concerns early in the process, where there is a lot of
opportunity for public comment, for working these things out on
the front end and not dragging projects into long litigation
years after.
Senator Capito. Right. Before I go to Senator Whitehouse, I
will say, you say if you are sending it back to agencies for
reconsideration you are running into the problem that Ms. Pavia
said came out in their survey, which is, I don't want to say
lack of expertise, not enough capacity to really move these
through the different agencies quickly.
Senator Whitehouse?
Senator Whitehouse. Thank you, Chairman.
Mr. Booker, welcome, thank you for mentioning project labor
agreements. You had a project labor agreement with one of the
offshore developers. We have seen the huge success of project
labor agreements in Rhode Island. It aligns the interests of
the workers with the interests of the developers. Your orange
shirts so show up, as you said. And things get built on time,
on budget, and done right.
Indeed, American submarines are built in buildings in
Quonset, Rhode Island, that were constructed under project
labor agreements. So thank you for flagging that.
With respect to the seven offshore wind projects that are
now at a standstill, how many jobs do you estimate those would
have supported?
Mr. Booker. Thousands. From what the actual work in the
water that will be, from the port upgrades, the harbor
upgrades. We are building vessels in this Country again to
support offshore wind. So it is in the thousands, if not tens
of thousands. Thousands of building trades jobs, laborer jobs
and tens of thousands of related jobs to that.
Senator Whitehouse. And when an ongoing project is put on a
standstill, do you have a sense of what that means for the
consumer at the end of the day?
Mr. Booker. We are losing power in the Country, right? We
need a baseload of power, we need predictability in power. So
not only are my members suffering from not being able to go to
work every day, we are also not being able to plug in that
power into the grid that we need.
Senator Whitehouse. Thanks.
Ms. Pavia, you mentioned at the very end of your testimony
discrepancies between the existing treatment of pipelines under
the Natural Gas Act and the existing treatment of transmission
lines under the Federal Power Act. Could you real quickly let
me know where those areas are, and maybe for the record put a
list together of where you think those should be harmonized?
Ms. Pavia. Yes, sure. There are definitely differences
between FERC's authority over interState natural gas pipelines
and transmission lines. The Natural Gas Act, Section 7, gives
FERC full siting and permitting authority over interState
natural gas pipelines.
Alternatively, the Federal Power Act in Section 216 creates
national interest electric transmission corridors that can be
created through the Department of Energy. FERC has a limited
authority to site projects only within those specific
corridors.
Right now, the Department of Energy is going through the
process of designating those corridors. But there are only
three of them so far. What we see from the differences between
the natural gas regulations and the transmission regulations is
that----
Senator Whitehouse. If you don't mind making a list, so I
don't have to use all my time on this one question.
Ms. Pavia. Oh, yes.
Senator Whitehouse. Mr. Harrell, you say a looming
transmission shortage poses a direct threat to America's energy
security. You recommend that permitting new lines will be
absolutely necessary. You also suggest that there are ways to
move more electrons over existing power lines.
How would you balance those things? How much growth can we
have in grid availability from moving more electrons over the
same lines, versus how much are we going to need to solve by
actually building new?
Mr. Harrell. Thank you for the question, Senator, and for
your leadership in these areas.
We need both, when push comes to shove. The scale of the
amount of building work we are going to have to do over the
coming decades here is immense. New transmission and increasing
the capacity of the existing infrastructure is going to be
critical.
Senator Whitehouse. What is your best estimate for where
the big new progress is most likely to be made? Is it going to
be more in building new, or more in new technologies that allow
electrons to run more smoothly over existing infrastructure?
Mr. Harrell. Given the scale of rising demand, we are going
to need to build significantly more energy infrastructure,
transmission and----
Senator Whitehouse. But you don't have a sense of which,
one part electron efficiency, three parts new transmission? You
don't have a----
Mr. Harrell. If I made an educated guess, 75-25, we are
going to need to build out more infrastructure around it.
Senator Whitehouse. That is what I figured.
A couple of things in my last minute that you can all
respond to as questions for the record. One is, I have come to
despise interagency process.
[Laughter.]
Senator Whitehouse. I really can't stand it any longer. It
is a terrible excuse for the executive branch to dawdle and
fiddle around and have things move at the speed of the most
recalcitrant agency. It is also a place where things go to die.
And in an accountability-free zone, because at the end of the
day, when whatever was in the interagency process fails,
everybody walks away and there is nobody who was responsible
for that.
So if you have thoughts on what we can do in Congress to
turn interagency process into an efficient mechanism for
coordinating these agencies, which is what we need, rather than
the executive branch excuse hold for not getting things done
and not having anybody accountable for that failure, I am happy
to hear from all five of you on that one.
The last thing is, very often, we saw this particularly in
offshore wind, we got the first steel in the water and the
first electrons on the grid in Rhode Island on offshore wind
because we had engaged with obviously interested stakeholders
right from the get-go. Too often, the Federal regulatory
process and State regulatory process begins with a filing from
somebody who wants to develop something who hasn't lifted a
finger to go out and talk to the folks who are going to be
affected.
The first offshore wind permit that was sought at the
Federal level was catastrophically bad in that respect. They
hadn't even talked to fishermen about which direction you
should array your equipment. They just were trying to jam it
through on the strength of the pressure of their investors and
their desire to get the electrons ashore.
So if you could also talk to me, and to the degree of
precision that you can, about in what regulatory processes
there should be a filing requirement stating what you have done
to identify the stakeholders and saying what you have done to
run the project by them and get their preliminary input so you
start in a better place.
I went over, my apologies. But if we can get those two
things, I would appreciate it.
Senator Capito. All right. Senator Cramer.
Senator Cramer. The first thing I am going to get is that
last 6 minutes and send to all my Republican friends, so they
know why I like working with Sheldon Whitehouse so much.
[Laughter.]
Senator Cramer. Anyway, thank you all for being here, and
thank you, Chairman Capito and Ranking Member Whitehouse, for
having this really important hearing so early in this term.
Because there is a lot of work to do, and as we have learned,
it takes a while.
There are two areas I would really love to explore, but I
am going to start with you, Ms. Pilconis, and Mr. Harris,
really all of you. But you spoke most thoroughly on the topic
that isn't anywhere in my prep, but it gets me right to this
issue. The capital intensity of these projects is, I think,
lost oftentimes on a lot of folks. Even to the point of
workers, I mean, labor can't just sit on the sidelines and wait
for the years to go by.
But what I want to ask about is, the Supreme Court, you
referenced Sackett, and either you or Mr. Harris referenced the
fact that the Corps of Engineers still hasn't adequately
responded to that ruling. Prior to Sackett, there was West
Virginia v. EPA, or as I like to say, West Virginia and North
Dakota v. EPA, and there is the Major Questions Doctrine, we
have repealed the Chevron Doctrine.
All of this, all of these are such clear messages that the
bureaucracy does not have the power that they think they have
and that they have been exercising. The fact that Sackett
wasn't clear enough in the definition of jurisdictional waters
that the durable rule that the administration came up with in
response to it was, don't worry about those 80,000 404 permits.
Maybe 79,800 of them really weren't necessary. But you should
at least ask us first, and you referenced the process.
My question is this: what part of this, or why do we even
have to seek jurisdictional determination or permission when we
know, when anybody can read it, any homeowner can read it, this
isn't a jurisdictional water, I don't need a 404 permit. In
other words, we don't put a highway patrolman on every car on
the interState, just in case one of them speeds. We presume
most of them are not going to violate the law.
Where am I wrong on this, Ms. Pilconis? Where am I wrong on
this, and how can we simplify it?
Ms. Pilconis. The problem is that it is not clear. And you
can ask one person if something is jurisdictional and the next
person if something is jurisdictional, and you might get two
different answers.
So for the construction community, we need clarity. And it
is very difficult to move forward when you don't know what is a
Water of the United States. Not getting a permit when you are
in federally controlled water has very significant penalties,
civil and criminal penalties. So the consequences and what is
at risk is huge for the developer, for the contractor.
Sackett did provide some guardrails. It provide some
clarity. But what came out of that Supreme Court decision is
not being implemented by the agencies. As Mr. Harris said,
there are very unclear terms that have not been defined in the
regulations, and that is what is causing a lot of confusion.
Senator Cramer. Mr. Harris, elaborate.
Mr. Harris. Thank you, Senator. Along with clarity, we need
consistency. We need consistency between the core districts. If
we could get true definitions of the terms that we were talking
about, then our builders, our developers, would know when they
could take reasonable risks before they make a tremendous
investment in both the property and start moving the dirt. So
we do need that consistency and clarity.
Senator Cramer. But one thing is for sure, is that they
can't be the same as they were before Sackett, right? There is
certainly many fewer jurisdictional waters than there were
previous to Sackett.
So as long as there is a 1 percent chance that it is
jurisdictional, you are almost obligated to your shareholders,
to your customers, to your workers, to seek the Federal
Government's permission to obey the law. And I mean seek their
permission to allow you to obey the law, which is mind-
boggling.
OK, we only have a minute left. I only have a minute left.
We will explore some more if we get another round.
But on the electricity side, because this is really, this
is the hard work, and I think one of the challenges and one of
the things that we oftentimes forget, and this gets to cross
purposes, I suppose, is that electricity is the generation,
transmission and distribution in a largely monopoly world of
electric consumption.
Where it gets very iffy is that somebody determines those
rates. There are regulators that determine those rates. And
transmission and generation being built out absent a planning
process by the local utility can put the tab on the wrong
people really easily.
The solution--there is a solution. We have to find a
solution. We have to find a Federal backstop.
But I think on linear, to the Ranking Member's point,
linear siting for transmission lines should be the same as it
is for a water pipeline or any other linear infrastructure. I
think we can do that. But we do have to recognize those State
regulators, having been one at one point, and the Governors. It
is just going to be a lot harder, and we will talk about it in
another round if we get a chance.
Thank you, Madam Chair.
Senator Capito. Thank you. Senator Kelly.
Senator Kelly. Thank you, Madam Chair.
I am glad we are holding this hearing today to discuss the
long-overdue need to fundamentally re-examine how the Federal
Government handles the permitting processes. I think it is
important to start by saying that there are very good reasons
why our bedrock environmental laws exist.
The Clean Air Act improves our air quality and has been
shown to prevent childhood asthma and other respiratory
problems. The Clean Water Act and Safe Drinking Water Act makes
sure that rivers, lakes, and sources of drinking water aren't
full of unhealthy pollutants.
And requirements to review the long-term impacts of
infrastructure development on Federal lands ensures that we
protect our national parks and monuments and forests for future
generations. I believe there is bipartisan agreement that
having these protections for public health and for our
environment are an appropriate thing to do.
The question then is whether our current framework allows
us to accomplish the goals of these bedrock statutes without
needlessly delaying commonsense projects. A few years ago, I
traveled to Taiwan to visit with some businesses who were
considering expanding their microchip manufacturing and also
their clean energy businesses into the State of Arizona.
While I was touring one of their tech parks, I think it was
on the northern side of the island, our guide pointed out that
right there in the middle of the park was the government
permitting office. Our guide shared that any time a company may
need a new air or water permit or land use permit, or anything
else, they could go to that office, and the staff there would
help them get the permit they needed.
By contrast, these businesses shared how confusing the U.S.
permitting process was. Why did they have to work with the
city, or the county government on their land use permit, then
talk to two or three different Federal Government agencies
about air, land, and water permits?
These businesses, they are prepared to invest hundreds of
millions of dollars in the United States and create thousands
of great-paying jobs. But our permitting process led them to
delay or scale back the planned investments. It is not that
these businesses wanted to skirt clean air and clean water
protections; they just wanted to be able to understand that
their requirements, like what the requirements were, and have
certainty that once they met those requirements, they wouldn't
need to deal with years of lawsuits.
So Mr. Harrell, at a more macro level, can you describe how
Federal permitting processes create uncertainty for businesses
looking to make investments in the United States, and what are
the opportunity costs for our current permitting system?
Mr. Harrell. Thank you, Senator Kelly. Thank you for your
leadership on critical infrastructure and trying to drive
foreign investments into our Country. Ultimately, companies are
evaluating how the process to operate in this Country impacts
their investment and the returns they are ultimately getting on
a long-term project.
Today, the process is particularly unpredictable. So there
is a wide range of factors that developers have to factor in
when they evaluate. So the desperate need to provide more
certainty in the process, to show us kind of the sideboards of
how long it could take if it is a particularly complicated
project, because sometimes it is, and how do we maximize the
resources that are being invested.
I think a great example is your work on the CHIPS and
Science Act, and the regulatory reforms that were needed to
catalyze and build out those CHIPS, that regulatory
predictability allowed private developers to move resources
faster, but ultimately didn't sacrifice significant
environmental outcomes.
Senator Kelly. Thank you. And Ms. Pavia, as I mentioned,
and what is going on in Arizona, most of the economic
development, the projects there that we are attracting are for
clean energy industries and things like microchip and battery
manufacturing is most of it. As we as a Nation look to
encourage more clean energy manufacturing, how does our current
permitting system affect that development?
Ms. Pavia. Thank you. In the context of transmission
permitting, uncertainties in the transmission permitting
process actually hinder the interconnection of clean and zero-
emitting and storage capacity resources. As I mentioned, we
found that 2,600 gigawatts of clean energy is sitting in
interconnection queues today. So the challenge there is to
unleash that potential in those queues.
Senator Kelly. And it is in a queue because there is no
transmission available, because the permitting is held up.
Ms. Pavia. That is right. The permitting processes are not
keeping up with the deployment rates of transmission that we
need to unlock those resources.
Senator Kelly. Right. Thank you. Let's fix that.
Senator Capito. OK, Senator Curtis.
Senator Curtis. Chairman Capito, Ranking Member Whitehouse,
thank you for holding this hearing.
As I have been sitting here today, the best analogy I can
think of is it feels like we are on a train and we all know it
is going to wreck. And everybody on the train has the answers,
right? We could take these five witnesses and the few members
who are here, if you would lock us in a room, I think we could
get to this.
So I am grateful. There is hardly a topic that is discussed
more in Washington and is acknowledged as bipartisan, yet we
can't get it across the finish line. So thanks for your work
and working with our House colleagues. I pledge my support and
I am anxious to help you in this matter.
Mr. Harrell, I would like to first of all give you a shout-
out for the work you do, and your organization. As you know, it
has been very, very important in my understanding of these
issues.
I want to talk just a little bit about Utah. Utah strives
to be a leader on this. We have Operation Gigawatt that
showcases the State's interest in geothermal and nuclear and
all these energies.
And geothermal, it would be hard to find an energy source
that finds better agreement among everybody that this is
something that is important and needs to develop. Yet we
struggle with permitting.
So I want to ask you, what additional measures could the
Federal Government take to support State-led efforts in
expanding geothermal, particularly in a State like Utah?
Mr. Harrell. Thank you, Senator Curtis. And thank you for
your leadership on these issues over the course of your time in
Congress. I am excited to see the next big things here in the
Senate, as well.
It underscores a really key point. And Utah is a great
example nationwide of where Federal, State and local entities
need to be synched up in the right way to drive new economic
opportunities. So Project Gigawatt focusing on how to leverage
and grow new geothermal, new nuclear, new hydrogen development
in the State.
I think there are four key things that I think could be
particularly helpful for the Federal process to synch up with
that Utah strategy. On the geothermal side, I think a no-
brainer is to remove the duplicative environmental analysis
that is required for geothermal exploration. We should
streamline that process. There is a bipartisan bill in Congress
considering that.
Then if a site is feasible, it is still going to have to
move under an environmental process for the generation project.
So let's take the pure exploration environmental analysis out
of it and kind of unleash innovators in that space.
I think there's a lot that we can do to streamline
permitting at existing facilities that have been closed, at
brownfields. I know your State is looking significantly at
deploying small modular reactors and microreactors that could
unlock significant development in the State. We are going to
have to resolve some of these frictions with federalism, both
on pipelines and transmission that are out there, to tap
building out infrastructure for new hydrogen, for example, in
the State.
So those are some key things that I think will solve
problems that we are seeing nationwide, but really will help
unlock the Utah strategy.
Senator Curtis. I am going to come back to transmission.
You have talked about it, it has been talked about a lot here,
and yet just like the other parts, we are not making progress.
I am going to stereotype Republicans here a little bit and say
that we do struggle with this, and the whole aspect of
permitting reform.
Talk to me, and particularly my Republican colleagues,
about transmission. What is it that we are not getting? What is
it we need to know? How do we get this done?
Mr. Harrell. I think it is about growing clean energy
infrastructure as a whole. We need to build out more wires, and
that is not just about renewables. There are projects that have
been stifled by the judicial process that are connecting and
putting new gas facilities on the grid. If we are going to
deploy new small modular reactors and advanced reactors, the
scale of rising demand in the amount of new generation we are
going to have to build potentially as big as the size of the
Texas grid at a minimum over the next decade, actually doubling
the U.S. grid over the next decade, we are going to need to
connect a lot of new resources in place.
Ultimately, that means streamlining Federal reviews, trying
to find ways to make that process move more quickly. And then
providing some more clarity to the judicial process.
Transmission projects have seen significant delays. There are
multiple transmission projects in this Country that have nearly
turned 21.
Senator Curtis. Well, listen, there are some good proposals
out there. I would just like to invite my Republican and
Democratic colleagues; I am anxious to work on this and be
helpful and see if we can find a solution.
Mr. Harris and Ms. Pilconis, I was a mayor of my city. When
I think of building regulations, I tend to think of city,
county and State regulations. I think a lot of people don't
really understand that Federal adds yet another layer of
regulations on this.
Can you both just speak quickly to that Federal layer that
people may not see?
Mr. Harris. As a recovering mayor myself, part of the 12-
step program, recognizing I had a problem and knowing there is
a higher power, it is not met, no, I am and I currently sit on
my planning and zoning commission. So I know that of the 24
precent of the cost of a new home that is directly related to
government regulation, that local and State government shares
in that responsibility to make sure that the permitting process
at all levels is efficient.
Senator Curtis. I am almost out of time. I am sure they
will give you just a quick response.
Ms. Pilconis. Just that where you can delegate or assign
responsibility to the State so it can help streamline the
process, such as through NEPA assignments or where States can
take over for permitting, many States have done that with the
402 stormwater permitting process. And that can reduce
duplication. We have heard from our members it can very much
streamline things.
Senator Curtis. Thanks, all of you. I yield my time.
Senator Capito. Senator Padilla.
Senator Padilla . Thank you, Madam Chair. Thank you and
Ranking Member Whitehouse for this timely hearing.
In California, we talk a lot about permitting. But I think
it is important to note at the outset that permitting isn't
just a bureaucratic hurdle, there is a purpose for the process.
And it is a foundation of responsible infrastructure
development, energy production and environmental protection.
They are not mutually exclusive; they have to go together.
There are a number of important bipartisan reforms, like
last year's Energy Permitting Reform Act that Congress should
pass. I am sure it has been raised earlier in the hearing.
But I also believe that the committee needs to grapple with
the fact that a big challenge that was just exacerbated is
actually staffing. Policy is policy; paperwork is paperwork.
But people are people. We need to be clear about ensuring
our Federal agencies have the staffing levels necessary to
process permitting applications as expeditiously and
responsibly as possible. What we are seeing in the early days
of this Trump Administration through the so-called Department
of Government Efficiency is actually freezing and firing at
unprecedented levels the work force that we rely on for
permitting.
Ms. Pavia, you touched on this in your testimony. Can you
discuss how staffing levels and capacity writ large are
impacting the permitting process?
Ms. Pavia. Absolutely. In our study, which we conducted
over the course of 2023, 2024, and it was published in April
2024, one of the main challenges that we heard from developers,
from agencies from across the spectrum was the lack of specific
permitting, permitting and transmission, knowledgeable staff
available at the agencies and at field offices for those
agencies.
An anecdotal piece here, we talked to a developer who said
that if they couldn't catch one person in particular at a field
office, that would add months to their permitting timeline. So
the importance of staffing is really, really critical. You can
set timelines for things, you can set deadlines. But at the end
of the day, if there aren't people there available to do the
work, it is really hard to get the work done.
Senator Padilla. Thank you, yes. It certainly seems that by
shrinking the work force, we are doing the opposite of
achieving energy independence or energy dominance. So we have
some work to do.
Now, as some of you may know, I am a member of both this
committee as well as Energy and Natural Resources. So I come at
it from both angles, the commitment and the priority of
streamlining and reforming the Federal planning process to meet
the energy demand and ensure the reliability of the electrical
grid. Transmission is an essential part of the reliable,
efficient and affordable grid, and is often a factor, a factor
physically constraining new grid interconnection requests.
According to NERC, the limited addition of interState electric
transmission infrastructure poses a grid reliability problem,
particularly with the growing population and growing economy.
Ms. Pavia, a followup question. In your testimony, you
pointed to the misalignment in requirements between different
jurisdictions with permitting authority as a key factor in
slowing down transmission permitting more specifically. Would
requiring inter-regional planning that ensures regions jointly
address needs and align priority projects help minimize any
misalignment? What other recommendations might you have?
Ms. Pavia. I do think that would help. FERC Order 1920, for
example, requires longer-term regional transmission planning
processes and cost allocation. I think that looking further out
as a region and thinking about all of the affordability,
reliability, and other challenges that might be faced would
encourage the planning of longer distance transmission lines.
So I do think that Federal, that these coordination efforts
will actually help resolve a few of these issues. However,
transmission permitting jurisdiction, as you noted, really lies
with the States. So there still needs to be State-to-State
harmonization and State and tribal harmonization, along with
the general harmonization of State transmission permitting
policies with Federal transmission permitting policies.
Senator Padilla. Just underscoring the biggest point of
all, which is we all have to work together. Federal
jurisdictions, Federal, State to State, but ultimately we are
physically and legally interconnected.
Thank you for your thoughtfulness. Thank you, Madam Chair.
Senator Capito. Thank you. Senator Ricketts.
Senator Ricketts. Thank you, Chairman Capito, and Ranking
Member Whitehouse, for holding today's important hearing. And
thank you to the witnesses for being here today to share your
experiences as well on what we need to do to reform our Federal
permitting process.
I believe we can make commonsense permitting reform to
unleash the projects for American energy, infrastructure,
homebuilding, agriculture, all those sort of things, while
protecting our environment. Permitting reform is about
modernizing our regulatory system to ensure that we are
deploying projects efficiently, not about undercutting
environmental standards.
Regulatory delay for permitting infrastructure, energy, and
environmental projects is a hidden tax on Americans. This
Congress, I am excited to serve as chairman of the Fisheries,
Water and Wildlife Subcommittee. The U.S. Fish and Wildlife
Service, Endangered Species Act and Clean Water Act are within
the subcommittee's jurisdiction.
In Nebraska, the U.S. Army Corps of Engineers often finds
itself in the middle of all these important policies. In
addition to maintaining waterways and providing power, the
Corps is responsible for flood prevention and to protect both
natural and built environment.
Conflicting statutes like the Flood Control Act of 1944 and
the Endangered Species Act actually pit protecting human life
and property against protecting wildlife and the environment.
Complicated court history and administrative actions relating
to the devastating flood events along the Missouri River has
made even the most commonsense projects avoidable and
anticipated flooding difficult to permit. The lack of clear
congressional intent and direction has compounded a difficult
situation and authorized unintended priorities and create new
environment programming.
Situations like this can be found all across the Country.
Western wildfire victims, biofuel proponents and residential
developers find themselves navigating the same impossible
regulatory scheme.
We do not have to settle for years-long court battles,
bureaucratic backlogs and complex statutes at the expense of
natural resources and safety. The Fiscal Responsibility Act of
2023 reformed the National Environmental Policy Act for the
first time in 50 years to mandate timelines and page counts for
environmental analyses. The FRA also streamlined the use of
categorical exclusions, which should expedite the deployment of
CEQ-approved activities.
As Governor, one of the things I did to be able to help
streamline this was implement a process called Lean Six Sigma,
and I know the Chairman is like, can't get through any sort of
hearing without me trying to mention Lean Six Sigma, when we
are talking about permitting reform. Because this is one of the
things we did that, again, shouldn't be controversial. It is
about streamlining the process which we have been all talking
about here today.
So for example, we can't change environmental regulations
at the State, but we can look at the process. It was 110 steps
long, for example, to issue an air construction permit. We cut
that down to 22, and cut the time delay down from issuing that
permit from 190 days to just 65 days.
Those are the kinds of reform that are possible, thanks to
the great staff we had in Nebraska. Actually one of those
folks, the gentleman who ran my Department of Environment and
Energy, Jim Macy, is the Region 7 EPA administrator. So I am
really pleased to see him doing that. The point is, we can do
this.
Ms. Pilconis, you talked about some of the conflicting
regulations maybe agencies are doing. I mentioned the Flood
Control Act and the Endangered Species Act. Can you give me
some examples of laws or regulations that are conflicting that
we may need to address to provide clear congressional intent,
so that the courts will have that when they are making these
decisions?
Ms. Pilconis. I think that clear congressional intent is
most important. Having clear statutory language that lays out
Congress' intent, making sure that is carried out and
implemented by the agencies, and for Congress to be able to
step in when agencies are showing overreach or they are causing
conflicting or inconsistent determinations.
As far as where there are conflicts, I mean, we have NEPA,
the overarching statute, bringing all the resource agencies
together at the table to try to analyze and assess what the
impact of a proposed major action will be, the ideas having
coordination and communication and discussion about how these
programs align, so that you can do concurrent reviews instead
of sequential reviews and end up having the monitoring, the
studies, the work that you are doing satisfy all of the
programs so that you can reach one final document.
Senator Ricketts. Just off the top of your head, can you
think of, are there specific conflicting laws that we need to
address through this process, or specific agency regulations
that we need to address through this process?
Ms. Pilconis. What comes to mind for me is not so much
conflict between the laws, but inconsistent interpretation of
the laws at the Federal agency level, and making sure that the
application is consistent, so that you don't have diverging,
different opinions.
With NEPA and recent court decisions and executive actions,
it is not clear what the long-term role CEQ will play in
issuing implementing regulations. We need to be sure that when
Federal agencies are implementing NEPA and carrying out NEPA
through their own agency regulations that we don't have
inconsistency.
So that is an area that we are focused on moving forward
and ensuring that agencies carry out NEPA consistently per the
statute.
Senator Ricketts. I think we would all agree that
consistency is going to be important, especially when it comes
to interpretation. Is there something this committee can do
along those lines, when we are thinking about reform, things
that we ought to be putting into the statute to be able to
accomplish that?
Ms. Pilconis. I think making sure that terms are clear. As
Mr. Harris talked about, with the Clean Water Act, I mean, we
have language in the regulation that is being inconsistently
applied. With NEPA, great work was done in the Fiscal
Responsibility Act, being clear that you are analyzing
reasonably foreseeable effects, that you are looking at
reasonable alternatives that are technologically and
economically feasible, how is that being implemented. And
Congress having oversight and stepping in where agencies are
implementing that inconsistently.
Senator Ricketts. Great. Thank you very much.
Senator Whitehouse.
[Presiding.] Senator Schiff.
Senator Schiff. Thank you, Chairman. In California, really,
the top issue is housing, the lack of housing, the lack of
affordable housing. It is fundamentally a supply problem. We
just don't have anywhere near enough housing. We can move
people off the streets into shelter, but if we are not building
more housing and building it quickly, there will simply be new
people taking their place on the streets.
So my question, let me address it to you, Mr. Harris, is
what can we do to accelerate the building of housing that is
affordable? How much of the challenge in terms of the time
limits or lack of time limits in approving new projects is a
Federal problem, and how much of it is a State and local
problem? And if it is more a State and local problem, are there
things we can do to incentivize local governments and agencies
to get to yes quicker on new housing?
Mr. Harris. Senator, thank you very much for the question.
It is something that is near and dear to our hearts.
We believe it is a supply problem, that the inventory is
driving up the inflationary cost of shelter. We think that of
the 24 percent of the cost of a new home is related to
government regulation. About, I don't know, a quarter of that
is probably Federal, the remainder is State and local. And they
are handling the heaviest part of that.
When I have the opportunity to talk to lieutenant Governors
and Governors that are saying, look, we need more housing in
our State, I encourage them to look at the policies and
procedures that local and State governments have in regard to
housing. Have they updated their housing plan? Have they put
barriers in place to keep the growth or disincentivize growth
happening in their communities?
And it is the same way it could happen at the Federal
Government. If the Federal Government used highway dollars to
get the speed limit regulated, they have used Federal dollars
to raise the drinking age. So I believe that if the Federal
Government was to look at incentivizing these communities,
either in applications for CDBG grants or any of the Federal
dollars that flow to municipalities, if they have consistent
pro-housing, pro-growth opportunities, then I think that would
incentivize them to do that, Senator.
Senator Schiff. Thank you. I look forward to working with
you to identify how we can facilitate at the Federal level but
also incentivize the local level, getting approvals of new
housing more quickly.
Mr. Booker, I wanted to ask you about offshore wind. We
have two big offshore wind projects, but in Humboldt and Morro
Bay. And I am concerned about the rash of cancellations we are
seeing of offshore wind projects in the last couple of years,
and the new administration's executive order blocking leasing
for offshore wind projects. I really don't understand the point
of that. It is going to kill a lot of jobs and reduce a lot of
energy.
Is the suspension of leasing, is this just a design to be a
gift to the oil industry? Why would we want to stop offshore
wind and all the jobs and energy that it creates?
Mr. Booker. I am probably not the right guy to answer that
question. But what I will say is that killing the offshore wind
jobs is killing America jobs. This President, this
administration, talked about creating American jobs, the
American dream.
And when we start picking winners and losers of renewables
versus oil and gas versus nuclear versus hydro, the end result
of that, if a political appointee is deciding who wins and who
loses, at the end of the day it is the American worker who
loses if someone is chosen, if one industry is chosen over the
other.
That is why we have always been all-of-the-above, we
support all of that, we support American jobs, we support
American workers. I would encourage this administration to not
pick winners and losers in the energy sector and let the market
dictate where it makes sense. On the east coast and on the west
coast, offshore wind has made sense as an economical, viable
energy source that is creating good American jobs.
Senator Schiff. Thank you.
Finally, on the transmission interconnection issue, it
seems to me one of the biggest areas where we could really move
forward with a lot of new energy projects and clean energy
projects, last year California's grid operator known as CISO
stated that its interconnection queue now contains more than
three times the generating capacity needed to achieve all of
our State's renewable energy goals, three times the amount
needed.
How do we get that transmission working? I am curious, a
lot of projects that apply to join the grid, they end up
essentially dissolving even before they get the opportunity. Is
that because of the delays in access to the grid, or is it
because you have all these projects applying to the grid that
are not necessarily financially viable or don't have their
funding? Why are those projects falling out, and what do we do
to get the grid working so that when you have a new project, it
can come online in a time-effective way?
Ms. Pavia. I think it is a little bit of both. There are a
lot of projects that apply to the queue just to get in line.
They may not be 100 percent ready for deployment.
But I think this all stems from a process that is very long
because of the lack of transmission that is available on the
other side. And there is a kind of chicken and egg problem as
well, where you don't want to build a transmission line if you
don't know that there is going to be generation on the other
side of that line. You also don't want to put new generation
into the queue if you don't think there is going to be a
transmission line built.
So there is kind of this chicken and egg problem as well
that I think we have to address in interconnection
specifically.
Senator Schiff. Yes, I know in combining these two issues
that in the Humboldt area where they have an offshore wind
project, they are trying to figure out exactly that chicken and
egg problem. It is one of the windiest places on earth. There
are some deep water challenges to that particular venue, but
then they don't have the transmission capacity, even if they
built it tomorrow.
Thank you, Mr. Chairman, and I yield back.
Senator Whitehouse. Senator Husted.
Senator Husted. Thank you, Mr. Chairman. Interesting
enough, until a couple of weeks ago, I was on the other side of
this question, as a lieutenant Governor working in economic
development in the State of Ohio. I can tell you that the
frustration that local and State leaders have with Federal
regulators is epic, from my experience, because of the lack of
certainty, because of the lack of understanding the process,
because one regulator may have a different opinion than another
regulator and the timelines of this are very frustrating.
But I would ask the question of why we are having this
discussion, because I think that we are saying that the
regulatory regime we built to protect the environment and other
important factors has become so large and unwieldy that it is
in conflict with other priorities like the idea of made in
America, about creating more jobs in this Country, about
building a resilient supply chain in this Country for our
economic and national security and everything from energy to
computer chips to pharmaceuticals, whatever that might be.
And the topic of time is money has come up, the saying time
is money has come up several times today, which is so true,
because we know that if you lack a predictable timeframe for
doing things, many people just won't invest. They won't take
the risk of making those investments, whether that is in
building chips or data centers or power plants.
The NEPA process, I can tell you that one, I have seen this
happen so many times where we had the CHIPS Act, for example,
we need to build chips, very much supported the Federal
Government leaning in on this on a bipartisan basis. But the
NEPA process extends out the timeframe for which you can build
the FAPS. We say it is a national security priority, but then
these regulations get in the way.
We also hear, I left a community where they are currently
discussing whether or not they will have enough energy to meet
the demand of made in America, and can't know whether they can
build the power plants or the supply chain. That is the
regulations, and then the regulators on timeframes and
deliverables.
And the idea that literally slowing these things down is
actually contrary to our economic national security, and even
environmental interest. When you think that unless you have
enough energy that comes from, whether it is gas-fired power
plants or SMNRs, and wind and solar, that taking a longer time
to build those means you can't decommission coal-powered plants
because you don't have the energy supply chain.
So if you accept my context for my concern, quickly, I
would love for every one of you to just tell me a couple of
things, just quickly, things that we should do to fix that.
Ms. Pavia. Thank you for your question, Senator. Timelines
are important, page limits are important. You did great work
with the Fiscal Responsibility Act, putting those things into
law. I think then it comes down to accountability and making
sure that folks are held to that.
In the Fiscal Responsibility Act is the requirement for
agencies to report to Congress if they are missing those
timelines, having oversight over that and making sure you are
getting that information, understanding why deadlines are being
missed. In MAP-21, there are actual penalties for missing
deadlines. That only applies to surface transportation
projects. I think having that applied to more critical
infrastructure projects could hold agencies more accountable.
FAST-41 created the permitting dashboard which creates an
incredible amount of transparency so that the public and
everyone can see what are the milestones, when are they
happening. There is only a few amount of projects, about 30
right now, that are on the dashboard. So having that apply to
more projects.
I think making use of general permits, there are ways to
make sure that things are getting done more quickly through the
use of categorical exclusions, general permits.
Mr. Harrell. Senator Husted, I would urge think big. This
is not an around the edges issue, as you point out. There is a
lot of duplication. We have had significant new environmental
statutes put in place after NEPA was enacted in 1969. We have
to see how these things synch up together to provide more
predictability, that modernize the system and make step-change
reform. Because then it gets clear the status quo is not
serving our economic or our environmental interests.
Mr. Harris. I would like to say that just calling a tool or
a permit efficient and predictable doesn't make it efficient
and predictable. We need something that will be efficient and
predictable every time.
Mr. Booker. I think we have to require agencies to make a
decision, either up or down. If the answer is no, then we can
reapply for it. And then we have to put timelines on
litigation, so that if a project is permitting, going, and
people are working, the decisions have been made by the agency,
it is good to go, that the litigation can't stop a project
going forward.
Ms. Pavia. I would second the use of the permitting
dashboard. It is a great existing tool that we can continue to
leverage more fully. I would also just hearken back to what I
said earlier about staffing, both at the local and Federal
capacity for permitting expertise, especially for linear
infrastructure projects, it is going to be really important.
The IRA did provide some technical assistance through
programs like TSED, but I think more can be done in the
capacity space.
Senator Husted. Thank you.
Senator Whitehouse. Senator Lummis.
Senator Lummis. Thank you, Mr. Chairman, and thank you,
panel, for being here today.
This is a subject that vexes people in both parties at all
levels of government. So I am thrilled that you are willing to
address these issues today.
I am going to start with something called permit by rule,
which is something that President Trump has touted in an
Executive Order. I have a bill that would authorize permit by
rule. My co-sponsor is Mr. Budd. It is called the Full
Responsibility and Expedited Enforcement Act, the FREE Act.
So my question is, Mr. Harrell, how can implementing permit
by rule streamline Federal permitting while ensuring robust
environmental protections? And what steps should Congress take
to ensure agencies followup on these reforms?
Mr. Harrell. Thank you, Senator, and thanks for your
leadership on this issue. This is the type of thinking big
item, right, how can we shift to a build and comply structure
rather than this arduous, multi-step process.
In many cases, projects face unnecessary case by case
reviews that aren't getting us any better benefits for the
environment, and purely is just driving out the length of the
review process and driving up costs. That is not good for the
consumer, it is not good for the environment.
So agencies are going to need to set out the rules of the
road, which your bill lays out in the early stages. Then I
think Congress is going to need to codify that, because in the
end, this can't be a structure. This shift is a big change. It
can't go on the ebbs and changes of an administration. We need
a regulatory system that works for the next 40 years, not the
next 4 years.
This is the type of thing that I think we can take a
significant chunk of projects off and streamline for projects
that have like characteristics, are built in the same type of
areas, or need to comply in the same way.
Senator Lummis. I agree, Mr. Harrell. I don't think it is
for every situation, but for a very standard situation that has
consistent replicable compliance standards, it might work well.
So thank you. I look forward to working with you all on that.
Mr. Harris, I am going to turn to you. In Wyoming, we have
a housing shortage. There is a community, very small community,
Kemmerer, Wyoming, where this TerraPower nuclear power plant is
going to come in and have construction job demands that are
going to require housing.
So I am interested in hearing your thoughts on this issue,
given your experience in small volume homebuilding in a State
that is very similar to my State of Wyoming.
Mr. Harris. Thank you very much, Senator, for the question.
I think the community needs to decide where the housing needs
to go and then work together with builders and the Federal
authorities about what is the most appropriate for that.
You reduce those barriers and you will start having more
builders who want to build homes either for rent, wherever the
build on the housing ladder, whether it is temporary housing,
apartments, to first-time homebuyers to move-up housing, all of
that takes the cooperation.
Real eState development is really community development and
how we can all work together to get these houses built in the
communities that need them.
Senator Lummis. So how can streamlining permitting help
homeowners?
Mr. Harris. It will lower the price, because the cost of
regulation continues to drive. So if I decide to, if I have to
jump through a lot of hoops to develop a piece of land, then
that increases the cost per acre or per lot that I am going to
need on that home. Then eventually that will be passed on to
the homebuyer.
But each one of those regulations continues to work through
that. The permitting process needs to be well-defined,
consistent, every time.
Senator Lummis. Thank you.
Now, I am going to ask one more question, changing subjects
to something called Class Six. I invite any of you, I suspect,
maybe, Mr. Harrell, this is for you. But any one of you is
welcome to weigh in.
States can expedite permitting by directly implementing
Federal requirements. There is something called Class Six
primacy that allows for that. Wyoming successfully applied for
and received this Class Six primacy, but I am told that the EPA
has 151 pending Class Six permit applications, while only four
have been granted.
So for any of you who are familiar with this Class Six,
what reforms can ensure that States seeking Class Six can
navigate the process more quickly, and with greater certainty?
Mr. Harrell. Senator, I am happy to hop in there. Class Six
primacy is an area where you are shifting responsibility to the
folks who are closer on the ground, who can move more quickly,
and the law requires them to still have the same environmental
standards.
So it is a no-brainer that we can move faster, bring those
decisions back to the lower level. And there is probably no
better example over the last 4 years, particularly in clean
energy, that shows that just throwing money at the problem
isn't fixing it. Between the Infrastructure Bill and annual
appropriations, EPA has gotten more resources to process these
and they continue to move at glacial speed.
We have to set clear timelines. They need to be more
transparent about where they are in the process, particularly
with States. It needs to be a more iterative process. If they
see something in the State proposal that isn't meeting the
Federal standard to take on this responsibility, that needs to
be up front.
I think we can move much faster on this. It was exciting to
see West Virginia get cleared here recently and there are a
bunch of States in the pipeline that I think could benefit from
this.
Then the Federal regulators can focus on more complicated
projects in places like California, for example, that aren't
going to explore primacy.
Senator Lummis. And it is proving successful, for States
that have already received Class Six primacy?
Mr. Harrell. Your State, and North Dakota, are two great
examples. Wyoming and North Dakota are moving these projects in
under a year, where the Federal process, as you mentioned, has
150-plus projects in the pipeline.
Senator Lummis. Thank you, Mr. Chairman, and thank you to
our committee. I appreciate your being here today.
Senator Whitehouse. We are deciding whether this is the end
of the hearing or not.
[Laughter.]
Senator Whitehouse. The Chair was kind enough to give me
the gavel for purposes of moving through the members, but it is
not clear that I have the gavel for purposes of closing out the
hearing without her permission.
So in the spirit of bipartisanship, I am waiting for that
signal. So if you will just stand by for a minute. OK, I have
clearance to proceed.
First of all, thank you. This was a very, very helpful
hearing. Senator Lummis, in the response from Mr. Harris, he
mentioned the importance of the community making the decisions
about where the housing should go.
I think that aligns pretty well with the comment that I
made earlier that in these filing things, it would be helpful
if there was right at the very front a requirement of who are
the stakeholders and how have I engaged with them already, so
that all doesn't get backed up into the regulatory process, it
is done up front and center and here we go. I didn't have to
close out the hearing, because the Chairman is here. I don't
want to get in trouble.
[Laughter.]
Senator Capito.
[Presiding.] My apologies for missing the last few minutes.
I think we have a lot of commonality here, a lot of good
ideas and a lot of thoughts that I think are going along the
same lines. I think we should think big, and then come down
from big to where we can meet the sweet spot. Because like
Senator Curtis said, we have been talking about this for years;
we haven't quite gotten there.
So I am committed, and I know you are.
Senator Whitehouse. What is the word?
Senator Capito. Together, to work on this together. That is
our key word today.
So anyway, with no further questions, I would like to thank
the witnesses and all of my colleagues for their participation.
Senators who wish to submit written questions for the record
have until 4 p.m. on Wednesday, March 5th to do so. The witness
responses to those questions are due back to the committee no
later than 5 p.m. on Wednesday, March 19th, and will be
submitted to the hearing.
The hearing record will remain open, as I said earlier,
until March 21st, and anybody, I would hope that you would
submit suggestions that you might have heard today or other
suggestions. The public will be allowed to submit comments and
materials to the hearing record by sending these documents to
[email protected]. This email address is also
accessible on the committee's website, on our contact page.
With that, this hearing is adjourned.
[Whereupon, at 1:46 p.m., the hearing was adjourned.]
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