[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

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     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--

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       (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

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     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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