[Congressional Record Volume 168, Number 133 (Saturday, August 6, 2022)]
[Senate]
[Pages S4331-S4334]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 5383. Mrs. CAPITO (for herself and Mr. Inhofe) submitted an
amendment intended to be proposed to amendment SA 5194 proposed by Mr.
Schumer to the bill H.R. 5376, to provide for reconciliation pursuant
to title II of S. Con. Res. 14; which was ordered to lie on the table;
as follows:
At the end of title VI, add the following
Subtitle F--Regulatory Authority
SEC. 60601. CODIFICATION OF NEPA REGULATIONS.
The revisions to the Code of Federal Regulations made
pursuant to the final rule of the Council on Environmental
Quality titled ``Update to the Regulations Implementing the
Procedural Provisions of the National Environmental Policy
Act'' and published on July 16, 2020 (85 Fed. Reg. 43304),
shall have the same force and effect of law as if enacted by
an Act of Congress.
SEC. 60602. PROVIDING REGULATORY CERTAINTY UNDER THE FEDERAL
WATER POLLUTION CONTROL ACT.
(a) Waters of the United States.--The definitions of the
term ``waters of the United States'' and the other terms
defined in section 328.3 of title 33, Code of Federal
Regulations (as in effect on January 1, 2021), are enacted
into law.
(b) Codification of Section 401 Certification Rule.--The
final rule of the Environmental Protection Agency entitled
``Clean
[[Page S4332]]
Water Act Section 401 Certification Rule'' (85 Fed. Reg.
42210 (July 13, 2020)) is enacted into law.
(c) Codification of Nationwide Permits.--The Nationwide
Permits issued, reissued, or modified, as applicable, in the
following final rules of the Corps of Engineers are enacted
into law:
(1) The final rule of the Corps of Engineers entitled
``Reissuance and Modification of Nationwide Permits'' (86
Fed. Reg. 2744 (January 13, 2021)).
(2) The final rule of the Corps of Engineers entitled
``Reissuance and Modification of Nationwide Permits'' (86
Fed. Reg. 73522 (December 27, 2021)).
SEC. 60603. PROHIBITION ON USE OF SOCIAL COST OF GREENHOUSE
GAS ESTIMATES RAISING GASOLINE PRICES.
(a) In General.--In promulgating regulations, issuing
guidance, or taking any agency action (as defined in section
551 of title 5, United States Code) relating to the social
cost of greenhouse gases, no Federal agency shall adopt or
otherwise use any estimates for the social cost of greenhouse
gases that may raise gasoline prices, as determined through a
review by the Energy Information Administration.
(b) Inclusion.--The estimates referred to in subsection (a)
include the interim estimates in the document of the
Interagency Working Group on the Social Cost of Greenhouse
Gases entitled ``Technical Support Document: Social Cost of
Carbon, Methane, and Nitrous Oxide Interim Estimates under
Executive Order 13990'' and dated February 2021.
SEC. 60604. EXPEDITING PERMITTING AND REVIEW PROCESSES.
(a) Definitions.--In this section:
(1) Authorization.--The term ``authorization'' means any
license, permit, approval, finding, determination, or other
administrative decision issued by a Federal department or
agency that is required or authorized under Federal law in
order to site, construct, reconstruct, or commence operations
of an energy project, including any authorization described
in section 41001(3) of the FAST Act (42 U.S.C. 4370m(3)).
(2) Energy project.--The term ``energy project'' means any
project involving the exploration, development, production,
transportation, combustion, transmission, or distribution of
an energy resource or electricity for which--
(A) an authorization is required under a Federal law other
than the National Environmental Policy Act of 1969 (42 U.S.C.
4321 et seq.); and
(B)(i) the head of the lead agency has determined that an
environmental impact statement is required; or
(ii) the head of the lead agency has determined that an
environmental assessment is required, and the project sponsor
requests that the project be treated as an energy project.
(3) Environmental impact statement.--The term
``environmental impact statement'' means the detailed
statement of environmental impacts required to be prepared
under the National Environmental Policy Act of 1969 (42
U.S.C. 4321 et seq.).
(4) Environmental review and authorization process.--The
term ``environmental review and authorization process''
means--
(A) the process for preparing for an energy project an
environmental impact statement, environmental assessment,
categorical exclusion, or other document prepared under the
National Environmental Policy Act of 1969 (42 U.S.C. 4321 et
seq.); and
(B) the completion of any authorization decision required
for an energy project under any Federal law other than the
National Environmental Policy Act of 1969 (42 U.S.C. 4321 et
seq.).
(5) Lead agency.--The term ``lead agency'' means--
(A) the Department of Energy;
(B) the Department of the Interior;
(C) the Department of Agriculture;
(D) the Federal Energy Regulatory Commission;
(E) the Nuclear Regulatory Commission; or
(F) any other appropriate Federal agency, as applicable,
that may be responsible for navigating the energy project
through the environmental review and authorization process.
(6) Project sponsor.--The term ``project sponsor'' means an
agency or other entity, including any private or public-
private entity, that seeks approval from a lead agency for an
energy project.
(b) Timely Authorizations for Energy Projects.--
(1) In general.--
(A) Deadline.--Except as provided in subparagraph (C), all
authorization decisions necessary for the construction of an
energy project shall be completed by not later than 90 days
after the date of the issuance of a record of decision for
the energy project by the lead agency.
(B) Detail.--The final environmental impact statement for
an energy project shall include an adequate level of detail
to inform decisions necessary for the role of any Federal
agency involved in the environmental review and authorization
process for the energy project.
(C) Extension of deadline.--The head of a lead agency may
extend the deadline under subparagraph (A) if--
(i) Federal law prohibits the lead agency or another agency
from issuing an approval or permit within the period
described in that subparagraph;
(ii) the project sponsor requests that the permit or
approval follow a different timeline; or
(iii) an extension would facilitate completion of the
environmental review and authorization process of the energy
project.
(2) Energy project schedule.--To the maximum extent
practicable and consistent with applicable Federal law, for
an energy project, the lead agency shall develop, in
concurrence with the project sponsor, a schedule for the
energy project that is consistent with a time period of not
more than 2 years for the completion of the environmental
review and authorization process for an energy project, as
measured from, as applicable--
(A) the date of publication of a notice of intent to
prepare an environmental impact statement to the record of
decision; or
(B) the date on which the head of the lead agency
determines that an environmental assessment is required to a
finding of no significant impact.
(3) Length of environmental impact statement.--
(A) In general.--Notwithstanding any other provision of law
and except as provided in subparagraph (B), to the maximum
extent practicable, the text of the items described in
paragraphs (4) through (6) of section 1502.10(a) of title 40,
Code of Federal Regulations (or successor regulations), of an
environmental impact statement for an energy project shall be
200 pages or fewer.
(B) Exemption.--The text referred to in subparagraph (A) of
an environmental impact statement for an energy project may
exceed 200 pages if the lead agency establishes a new page
limit for the environmental impact statement for that energy
project.
(c) Deadline for Filing Energy-related Causes of Action.--
(1) Definitions.--In this subsection:
(A) Agency action.--The term ``agency action'' has the
meaning given the term in section 551 of title 5, United
States Code.
(B) Energy-related cause of action.--The term ``energy-
related cause of action'' means a cause of action that--
(i) is filed on or after the date of enactment of this Act;
and
(ii) seeks judicial review of a final agency action to
issue a permit, license, or other form of agency permission
for an energy project.
(2) Deadline for filing.--
(A) In general.--Notwithstanding any other provision of
Federal law, an energy-related cause of action shall be filed
by--
(i) not later than 60 days after the date of publication of
the applicable final agency action; or
(ii) if another Federal law provides for an earlier
deadline than the deadline described in clause (i), the
earlier deadline.
(B) Prohibition.--An energy-related cause of action that is
not filed within the applicable time period described in
subparagraph (A) shall be barred.
(d) Application of Categorical Exclusions for Energy
Projects.--In carrying out requirements under the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) for
an energy project, a Federal agency may use categorical
exclusions designated under that Act in the implementing
regulations of any other agency, subject to the conditions
that--
(1) the agency makes a determination, in consultation with
the lead agency, that the categorical exclusion applies to
the energy project;
(2) the energy project satisfies the conditions for a
categorical exclusion under the National Environmental Policy
Act of 1969 (42 U.S.C. 4321 et seq.); and
(3) the use of the categorical exclusion does not otherwise
conflict with the implementing regulations of the agency,
except any list of the agency that designates categorical
exclusions.
SEC. 60605. FRACTURING AUTHORITY WITHIN STATES.
(a) Definition of Federal Land.--In this section, the term
``Federal land'' means--
(1) public lands (as defined in section 103 of the Federal
Land Policy and Management Act of 1976 (43 U.S.C. 1702));
(2) National Forest System land;
(3) land under the jurisdiction of the Bureau of
Reclamation; and
(4) land under the jurisdiction of the Corps of Engineers.
(b) State Authority.--
(1) In general.--A State shall have the sole authority to
promulgate or enforce any regulation, guidance, or permit
requirement regarding the treatment of a well by the
application of fluids under pressure to which propping agents
may be added for the expressly designed purpose of initiating
or propagating fractures in a target geologic formation in
order to enhance production of oil, natural gas, or
geothermal production activities on or under any land within
the boundaries of the State.
(2) Federal land.--The treatment of a well by the
application of fluids under pressure to which propping agents
may be added for the expressly designed purpose of initiating
or propagating fractures in a target geologic formation in
order to enhance production of oil, natural gas, or
geothermal production activities on Federal land shall be
subject to the law of the State in which the land is located.
SEC. 60606. FEDERAL LAND FREEDOM.
(a) Definitions.--In this section:
(1) Available federal land.--The term ``available Federal
land'' means any Federal land that, as of May 31, 2013--
[[Page S4333]]
(A) is located within the boundaries of a State;
(B) is not held by the United States in trust for the
benefit of a federally recognized Indian Tribe;
(C) is not a unit of the National Park System;
(D) is not a unit of the National Wildlife Refuge System;
and
(E) is not a congressionally designated wilderness area.
(2) State.--The term ``State'' means--
(A) a State; and
(B) the District of Columbia.
(3) State leasing, permitting, and regulatory program.--The
term ``State leasing, permitting, and regulatory program''
means a program established pursuant to State law that
regulates the exploration and development of oil, natural
gas, and other forms of energy on land located in the State.
(b) State Control of Energy Development and Production on
All Available Federal Land.--
(1) State leasing, permitting, and regulatory programs.--
Any State that has established a State leasing, permitting,
and regulatory program may--
(A) submit to the Secretaries of the Interior, Agriculture,
and Energy a declaration that a State leasing, permitting,
and regulatory program has been established or amended; and
(B) seek to transfer responsibility for leasing,
permitting, and regulating oil, natural gas, and other forms
of energy development from the Federal Government to the
State.
(2) State action authorized.--Notwithstanding any other
provision of law, on submission of a declaration under
paragraph (1)(A), the State submitting the declaration may
lease, permit, and regulate the exploration and development
of oil, natural gas, and other forms of energy on Federal
land located in the State in lieu of the Federal Government.
(3) Effect of state action.--Any action by a State to
lease, permit, or regulate the exploration and development of
oil, natural gas, and other forms of energy pursuant to
paragraph (2) shall not be subject to, or considered a
Federal action, Federal permit, or Federal license under--
(A) subchapter II of chapter 5, and chapter 7, of title 5,
United States Code (commonly known as the ``Administrative
Procedure Act'');
(B) division A of subtitle III of title 54, United States
Code;
(C) the Endangered Species Act of 1973 (16 U.S.C. 1531 et
seq.); or
(D) the National Environmental Policy Act of 1969 (42
U.S.C. 4321 et seq.).
(c) No Effect on Federal Revenues.--
(1) In general.--Any lease or permit issued by a State
pursuant to subsection (b) shall include provisions for the
collection of royalties or other revenues in an amount equal
to the amount of royalties or revenues that would have been
collected if the lease or permit had been issued by the
Federal Government.
(2) Disposition of revenues.--Any revenues collected by a
State from leasing or permitting on Federal land pursuant to
subsection (b) shall be deposited in the same Federal account
in which the revenues would have been deposited if the lease
or permit had been issued by the Federal Government.
(3) Effect on state processing fees.--Nothing in this
section prohibits a State from collecting and retaining a fee
from an applicant to cover the administrative costs of
processing an application for a lease or permit.
SEC. 60607. EXPEDITING COMPLETION OF THE MOUNTAIN VALLEY
PIPELINE.
(a) Definition of Mountain Valley Pipeline.--In this
section, the term ``Mountain Valley Pipeline'' means the
Mountain Valley Pipeline project, as generally described and
approved in Federal Energy Regulatory Commission Docket Nos.
CP16-10 and CP19-477.
(b) Expedited Approval.--Notwithstanding any other
provision of law, not later than 21 days after the date of
enactment of this Act and for the purpose of facilitating the
completion of the Mountain Valley Pipeline--
(1) the Secretary of the Army shall issue all permits or
verifications necessary--
(A) to complete the construction of the Mountain Valley
Pipeline across the waters of the United States; and
(B) to allow for the operation and maintenance of the
Mountain Valley Pipeline;
(2) the Federal Energy Regulatory Commission shall approve
any amendments to the certificate of public convenience and
necessity issued by the Federal Energy Regulatory Commission
on October 13, 2017, and grant any extensions that are
necessary--
(A) to complete the construction of the Mountain Valley
Pipeline; and
(B) to allow for the operation and maintenance of the
Mountain Valley Pipeline;
(3) the Secretary of Agriculture shall amend the Land and
Resource Management Plan for the Jefferson National Forest in
a manner that is substantively identical to the record of
decision with respect to the Mountain Valley Pipeline issued
on January 11, 2021; and
(4) the Secretary of the Interior shall--
(A) reissue the biological opinion and incidental take
statement for the Mountain Valley Pipeline in a manner that
is substantively identical to the biological opinion and
incidental take statement previously issued on September 4,
2020; and
(B) grant all necessary rights-of-way and temporary use
permits in a manner that is substantively identical to the
those permits approved in the record of decision with respect
to the Mountain Valley Pipeline issued on January 14, 2021.
(c) Judicial Review.--No action taken by the Secretary of
the Army, the Federal Energy Regulatory Commission, the
Secretary of Agriculture, or the Secretary of the Interior
that grants an authorization, permit, verification,
biological opinion, incidental take statement, or any other
approval related to the Mountain Valley Pipeline, including
the issuance of any authorization, permit, verification,
authorization, biological opinion, incidental take statement,
or other approval described in subsection (b), shall be
subject to judicial review.
(d) Effect.--This section preempts any statute (including
any other section of this Act), regulation, judicial
decision, or agency guidance that is inconsistent with the
issuance of any authorization, permit, verification,
authorization, biological opinion, incidental take statement,
or other approval described in subsection (b).
SEC. 60608. FASTER PROJECT CONSULTATION.
Section 7(b)(1) of the Endangered Species Act of 1973 (16
U.S.C. 1536(b)(1)) is amended--
(1) in subparagraph (A), by striking ``90-day'' and
inserting ``60-day''; and
(2) in subparagraph (B)--
(A) in the matter preceding clause (i)--
(i) by striking ``90 days'' and inserting ``60 days''; and
(ii) by striking ``90th day'' and inserting ``60th day'';
(B) in clause (i), in the matter preceding subclause (I),
by striking ``150th day'' and inserting ``100th day''; and
(C) in clause (ii), by striking ``150 or more'' and
inserting ``100 or more''.
SEC. 60609. NEW SOURCE REVIEW PERMITTING.
(a) Clarification of Definition of a Modification for
Emission Rate Increases, Pollution Control, Efficiency,
Safety, and Reliability Projects.--Paragraph (4) of section
111(a) of the Clean Air Act (42 U.S.C. 7411(a)) is amended--
(1) by inserting ``(A)'' before ``The term'';
(2) by inserting before the period at the end the
following: ``. For purposes of the preceding sentence, a
change increases the amount of any air pollutant emitted by
such source only if the maximum hourly emission rate of an
air pollutant that is achievable by such source after the
change is higher than the maximum hourly emission rate of
such air pollutant that was achievable by such source during
any hour in the 10-year period immediately preceding the
change''; and
(3) by adding at the end the following:
``(B) Notwithstanding subparagraph (A), the term
`modification' does not include a change at a stationary
source that is designed--
``(i) to reduce the amount of any air pollutant emitted by
the source per unit of production; or
``(ii) to restore, maintain, or improve the reliability of
operations at, or the safety of, the source,
except, with respect to either clause (i) or (ii), when the
change would be a modification as defined in subparagraph (A)
and the Administrator determines that the increase in the
maximum achievable hourly emission rate of a pollutant from
such change would cause an adverse effect on human health or
the environment.''.
(b) Clarification of Definition of Construction for
Prevention of Significant Deterioration.--Subparagraph (C) of
section 169(2) of the Clean Air Act (42 U.S.C. 7479(2)) is
amended to read as follows:
``(C) The term `construction', when used in connection with
a major emitting facility, includes a modification (as
defined in section 111(a)) at such facility, except that for
purposes of this subparagraph a modification does not include
a change at a major emitting facility that does not result in
a significant emissions increase, or a significant net
emissions increase, in annual actual emissions at such
facility.''.
(c) Clarification of Definition of Modifications and
Modified for Nonattainment Areas.--Paragraph (4) of section
171 of the Clean Air Act (42 U.S.C. 7501) is amended to read
as follows:
``(4) The terms `modifications' and `modified' mean a
modification as defined in section 111(a)(4), except that
such terms do not include a change at a major emitting
facility that does not result in a significant emissions
increase, or a significant net emissions increase, in annual
actual emissions at such facility.''.
(d) Rule of Construction.--Nothing in this section or the
amendments made by this section shall be construed to treat
any change as a modification for purposes of any provision of
the Clean Air Act (42 U.S.C. 7401 et seq.) if such change
would not have been so treated as of the day before the date
of enactment of this Act.
SEC. 60610. PROHIBITION ON RETROACTIVE PERMIT VETOES.
Section 404 of the Federal Water Pollution Control Act (33
U.S.C. 1344) is amended by striking subsection (c) and
inserting the following:
``(c) Authority of EPA Administrator.--
``(1) Possible prohibition of specification.--Until such
time as the Secretary has issued a permit under this section,
the Administrator may prohibit the specification (including
the withdrawal of specification) of any defined area as a
disposal site, and the Administrator may deny or restrict the
use
[[Page S4334]]
of any defined area for specification (including the
withdrawal of specification) as a disposal site, whenever the
Administrator determines, after notice and opportunity for
public hearings, that the discharge of such materials into
such area will have an unacceptable adverse effect on
municipal water supplies, shellfish beds and fishery areas
(including spawning and breeding areas), wildlife, or
recreational areas.
``(2) Consultation required.--Before making a determination
under paragraph (1), the Administrator shall consult with the
Secretary.
``(3) Written findings required.--The Administrator shall
set forth in writing and make public the findings and reasons
of the Administrator for making any determination under this
subsection.''.
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