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112th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 112-250
CUTTING FEDERAL RED TAPE TO FACILITATE RENEWABLE ENERGY ACT
October 14, 2011.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
Mr. Hastings of Washington, from the Committee on Natural Resources,
submitted the following
R E P O R T
[To accompany H.R. 2170]
[Including cost estimate of the Congressional Budget Office]
The Committee on Natural Resources, to whom was referred
the bill (H.R. 2170) streamlining Federal review to facilitate
renewable energy projects, having considered the same, report
favorably thereon with an amendment and recommend that the bill
as amended do pass.
The amendment is as follows:
Strike all after the enacting clause and insert the
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Cutting Federal Red Tape to Facilitate
Renewable Energy Act''.
SEC. 2. ENVIRONMENTAL REVIEW FOR RENEWABLE ENERGY PROJECTS.
(a) Compliance With NEPA for Renewable Energy Projects.--In complying
with the National Environmental Policy Act of 1969 (41 U.S.C. 4321 et
seq.) with respect to any action authorizing or facilitating a proposed
renewable energy project, at the election of the applicant a Federal
(1) consider only the proposed action and the no action
(2) analyze only the proposed action and the no action
(3) identify and analyze potential mitigation measures only
for the proposed action and the no action alternative.
(b) Public Comment.--In complying with the National Environmental
Policy Act of 1969 with respect to a proposed renewable energy project,
a Federal agency shall only consider public comments that specifically
address the proposed action or the no action alternative (or both) and
are filed within 30 days after publication of a draft environmental
assessment or draft environmental impact statement.
(c) Definitions.--For purposes of this section:
(1) Federal waters.--The term ``Federal waters'' means waters
seaward of the coastal zone (as that term is defined in section
304 of the Coastal Zone Management Act of 1972 (16 U.S.C.
1453)), to the limits of the exclusive economic zone or the
Outer Continental Shelf, whichever is farther.
(2) Outer continental shelf.--The term ``Outer Continental
Shelf'' has the meaning the term ``outer Continental Shelf''
has in the Outer Continental Shelf Lands Act (43 U.S.C. 1331 et
(3) Renewable energy project.--The term ``renewable energy
project'' means a project on Federal lands or in Federal
waters, including a project on the Outer Continental Shelf,
using wind, solar power, geothermal power, biomass, or marine
and hydrokinetic energy to generate energy, that is constructed
encouraging the use of equipment and materials manufactured in
the United States.
PURPOSE OF THE BILL
The purpose of H.R. 2170, as ordered reported, is to
streamline federal review to facilitate renewable energy
BACKGROUND AND NEED FOR LEGISLATION
The Cutting Federal Red Tape to Facilitate Renewable Energy
Act (H.R. 2170) streamlines the National Environmental Policy
Act (NEPA) process by allowing a renewable energy developer to
choose to do a NEPA review only for the specific location where
a renewable energy project would be located and not require
analysis of alternative locations. A renewable energy project
on federal lands and waters includes wind, solar, geothermal,
biomass and tidal projects. This bill allows the applicant and
the agency to direct their resources on analyzing the ideal
project location, rather than expending resources on several
locations that may not be economically or environmentally
feasible simply to meet arbitrary regulatory standards. The
applicant can resubmit a plan for additional project locations
if his first choice is rejected.
Committee hearings found that government bureaucratic red
tape and uncertainty is delaying the production of renewable
energy production on federal lands, and costly regulations are
greatly increasing the financial burden on companies aiming to
develop renewable energy projects. The same policies that block
and delay access to our oil and natural gas resources are also
being used to hinder renewable energy production on federal
lands and waters. These policies cost American jobs and
increase our dependence on foreign sources of energy.
The Administration claims to have placed a priority on the
expeditious development of renewable energy. However, efforts
in this arena have been slow to result in increased development
of renewable energy. Regulatory roadblocks and lawsuits have
held these projects up at every turn. The average permitting
timeline for renewable projects is three to six years, and
oftentimes it is years before a project can even start
construction. In 2011, the Bureau of Land Management (BLM), in
consultation with the Fish and Wildlife Service (FWS) and the
National Park Service (NPS), gave ``priority status'' to 20
projects (10 solar, five wind, and five geothermal). So far
this year, only one project has been approved (for geothermal).
NEPA is being used to slow down, disrupt, and outright
block renewable energy projects on public lands. Under the
current NEPA review process, a developer must analyze numerous
project options for a single renewable energy project, even if
these options are not economically or environmentally feasible.
Special interest groups can then bring lengthy, burdensome
lawsuits against individual project plans, regardless of
whether the developer can or will follow through project
construction on the various submitted sites. These lawsuits
slow down or halt the development of renewable energy projects.
Narrowing the scope of consideration for each renewable energy
project can only lead to decreased lawsuits and quicker agency
response time since it reduces the options available for
The current overbearing regulatory process is discouraging
energy companies from investing in projects and hampering our
ability to produce renewable energy on public lands. Many
companies choose to develop projects on private land solely to
avoid the regulatory process. H.R. 2170 aims to address this
burdensome approval process.
H.R. 2170 was introduced on June 14, 2011, by Congressman
Doc Hastings (R-WA). The bill was referred to the Committee on
Natural Resources, and within the Committee to the Subcommittee
on Energy and Mineral Resources. On June 23, 2011, the
Subcommittee on Energy and Mineral Resources held a hearing on
the bill. On July 13, 2011, the Full Resources Committee met to
consider the bill. The Subcommittee on Energy and Mineral
Resources was discharged by unanimous consent. Congressman Doc
Hastings (R-WA) offered an amendment; the amendment was adopted
by voice vote. Congressman Rush Holt (D-NJ) offered amendment
designated .002; the amendment was not adopted by a roll call
vote of 14-21, as follows:
Congressman John Garamendi (D-CA) offered an amendment
designated .054. Congressman Scott Tipton (R-CO) offered an
amendment to that amendment, which was adopted by voice vote.
The amendment offered by Congressman Garamendi, as amended, was
adopted by voice vote. Congressman Ed Markey (D-MA) offered an
amendment designated .006; the amendment was withdrawn. The
bill, as amended, was ordered favorably reported to the House
of Representatives by a bipartisan roll call vote of 24-16, as
Section 1. Short title
This Act may be cited as ``Cutting Federal Red Tape to
Facilitate Renewable Energy Act.''
Section 2. Environmental Review for Renewable Energy Projects
This section waives the NEPA requirement for renewable
energy projects to consider alternatives when submitting a
proposal for a renewable energy project. It specifically allows
the applicant the option of requiring federal agencies to
consider, analyze potential mitigation measures for, and
consider public comments for only the specific proposed action
and no alternative plan.
COMMITTEE OVERSIGHT FINDINGS AND RECOMMENDATIONS
Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of
rule XIII of the Rules of the House of Representatives, the
Committee on Natural Resources' oversight findings and
recommendations are reflected in the body of this report.
COMPLIANCE WITH HOUSE RULE XIII
1. Cost of Legislation. Clause 3(d)(1) of rule XIII of the
Rules of the House of Representatives requires an estimate and
a comparison by the Committee of the costs which would be
incurred in carrying out this bill. However, clause 3(d)(2)(B)
of that rule provides that this requirement does not apply when
the Committee has included in its report a timely submitted
cost estimate of the bill prepared by the Director of the
Congressional Budget Office under section 402 of the
Congressional Budget Act of 1974. Under clause 3(c)(3) of rule
XIII of the Rules of the House of Representatives and section
403 of the Congressional Budget Act of 1974, the Committee has
received the following cost estimate for this bill from the
Director of the Congressional Budget Office:
H.R. 2170--Cutting Federal Red Tape to Facilitate Renewable Energy Act
H.R. 2170 would narrow the scope of environmental reviews
conducted by the Bureau of Land Management (BLM) for proposed
renewable energy projects. Based on information provided by the
agency, CBO estimates that implementing the legislation would
have no significant impact on the federal budget. Enacting H.R.
2170 would not affect direct spending or revenues; therefore,
pay-as-you-go procedures do not apply.
Under current law, BLM analyzes a range of alternatives
when reviewing proposed renewable energy projects under the
National Environmental Policy Act (NEPA). Under the bill, such
reviews would be limited to the proposed project and an
alternative where no project is developed. The bill also would
reduce the time period for the public to provide comments to
BLM on draft NEPA analyses for renewable energy projects. Based
on information provided by BLM, CBO expects that implementing
the legislation could reduce the workload of certain BLM
offices; however, we estimate that the budgetary impact of any
such effects would be negligible.
H.R. 2170 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would impose no costs on state, local, or tribal governments.
The CBO staff contact for this estimate is Jeff LaFaye. The
estimate was approved by Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
2. Section 308(a) of Congressional Budget Act. As required
by clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives and section 308(a) of the Congressional Budget
Act of 1974, this bill does not contain any new budget
authority, spending authority, credit authority, or an increase
or decrease in revenues or tax expenditures. CBO estimates that
implementing the legislation would have no significant impact
on the federal budget. Enacting H.R. 2170 would not affect
direct spending or revenues; therefore, pay-as-you-go
procedures do not apply.
3. General Performance Goals and Objectives. This bill does
not authorize funding and therefore, clause 3(c)(4) of rule
XIII of the Rules of the House of Representatives does not
This bill does not contain any Congressional earmarks,
limited tax benefits, or limited tariff benefits as defined
under clause 9(e), 9(f), and 9(g) of rule XXI of the Rules of
the House of Representatives.
COMPLIANCE WITH PUBLIC LAW 104-4
This bill contains no unfunded mandates.
PREEMPTION OF STATE, LOCAL OR TRIBAL LAW
This bill is not intended to preempt any State, local or
CHANGES IN EXISTING LAW
If enacted, this bill would make no changes in existing
We oppose H.R. 2170 because it would set a reckless and
counterproductive new precedent for development of public lands
by dismantling a core function of the environmental review
process and limiting the ability of the public to participate
in decisions regarding the use of public lands. The bill would
introduce greater uncertainty into the permitting process for
renewable energy development, driving up financing costs and
reducing the viability of projects. The bill is likely to lead
to increased litigation against renewable energy projects on
public lands as well as more projects being unnecessarily
blocked by federal permitting agencies that would be handcuffed
as a result of the bill. No renewable energy industry groups
have endorsed the legislation.
H.R. 2170 would require any Federal agency that is
considering whether or not to authorize a renewable energy
project, either onshore or offshore, to limit the scope of its
consideration, NEPA analysis, and identification of mitigation
measures to only the project as it is proposed or to a ``no
action alternative.'' This effectively guts a core function of
the review process required under the National Environmental
Policy Act (NEPA), which is to have the agency present the
environmental impacts of the proposal and the possible
alternatives in comparative form so that issues are sharply
defined and the project developer and the public are provided
Fully considering a range of alternatives is not a
pointless exercise in red tape, as this bill asserts, but
rather a process that typically leads to optimal results for
both the public and the project developer. By constraining all
federal agencies from considering alternatives during the NEPA
review process, the agencies would be unable to make fully
informed decisions about the best course of action and
renewable energy projects would more frequently be rejected or
be developed in sub-optimal locations.
The majority maintains that H.R. 2170 would accelerate
renewable energy development on public lands. However,
curtailing the NEPA alternatives analysis would likely lead to
two consequences that would have the opposite effect. The first
consequence is that permitting agencies will reject more
renewable energy proposals because they would be unable to
suggest changes to the project that would mitigate
environmental or public health and safety impacts that might
otherwise make the project viable. Secondly, there will be more
litigation challenging any approved renewable energy projects
since the agency's decision making process would be less fully
informed and more vulnerable to legal challenges. The two
leading federal land management agencies, the Bureau of Land
Management and the Forest Service, echoed both of these
concerns during the Committee's legislative hearing on this
bill on June 23, 2011.
Additionally, increased litigation is almost certain to
result from a separate aspect of the bill: the short-circuiting
of the public participation process. The role of land
management agencies is to manage public lands for the benefit
of the American people, and NEPA provides the American people
with their best opportunity to provide input to the land
management agencies on how these lands should be utilized.
Currently, the minimum amount of time for public comment is 45
days, but agencies often provide 60-90 days or longer for
controversial projects. H.R. 2170 would cap public comment
periods at 30 days. Additionally, a second round of public
comment typically occurs following the publication of a Final
Environmental Impact Statement because this allows the public
to comment on an agency's preliminary decision as to how it
will proceed on a project. H.R. 2170 eliminates this round of
public comment altogether. If the public is not given a
meaningful opportunity to comment during the NEPA process, then
it is more likely that they will take recourse in the only
remaining venue available: the courts.
During full committee mark-up of this bill on July 13,
2011, an amendment was offered by Chairman Hastings to give the
project developer the option of whether or not, in considering
the proposed project, the federal agency would analyze a full
range of alternatives. This amendment, which was agreed to by
voice vote, essentially concedes that waving the ability of
permitting agencies to consider a full range of alternatives,
as the bill proposes, might not be in the best interest of
project developers. Representative Holt took this one step
further, offering an amendment that would make the proposed
``all or nothing'' permitting approach in the underlying bill
contingent upon the Secretary of Interior certifying that doing
so would actually increase the production of renewable energy
on public lands. This amendment was defeated 21-14, with all
Ranking Member Markey also offered an amendment to add two
new sections that would incorporate into the bill key language
supported by renewable energy industries from H.R. 2196 and
H.R. 2176. The amendment would increase the federal renewable
electricity standard on federal agencies through 2025, at which
point the federal government would be required to obtain 25
percent of their electricity from renewable resources by 2025.
This would build on a provision originally passed in the 2005
Republican Energy Bill that currently mandates federal agencies
obtain 5 percent of their electricity from renewable sources.
The other provision of the amendment would establish a
mechanism for ensuring adequate human resources are available
at the Interior Department to process wind and solar project
applications. Onshore oil and gas permitting already has a
similar funding mechanism in place. This amendment was
withdrawn as a result of a point of order raised by the
H.R. 2170 is a predictable solution from a majority that
has misidentified environmental protection as the cause of
almost any problem. This bill guts key environmental and public
health and safety protections that have been in place for
decades in favor of a process that is likely to actually reduce
the number of renewable energy projects that are developed on
public lands. The renewable energy industry has not suggested
this solution and does not support the legislation. We oppose
it as well.
Edward J. Markey.
Gregorio Kilili Camacho Sablan.
Colleen W. Hanabusa.
Grace F. Napolitano.
Frank Pallone, Jr.
Madeleine Z. Bordallo.
Ben R. Lujan.
Raul M. Grijalva.