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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

                             together with

                            DISSENTING VIEWS

                        [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 
following:

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 
agency shall--
          (1) consider only the proposed action and the no action 
        alternative;
          (2) analyze only the proposed action and the no action 
        alternative; and
          (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 
        seq.).
          (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 
projects.

                  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 
lawsuits.
    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.

                            COMMITTEE ACTION

    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 
follows:



                      SECTION-BY-SECTION ANALYSIS

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 
apply.

                           EARMARK STATEMENT

    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 
tribal law.

                        CHANGES IN EXISTING LAW

    If enacted, this bill would make no changes in existing 
law.

                            DISSENTING VIEWS

    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 
clear choices.
    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 
Republicans opposing.
    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 
Republican majority.
    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.
                                   Rush Holt.
                                   Grace F. Napolitano.
                                   Niki Tsongas.
                                   Frank Pallone, Jr.
                                   Madeleine Z. Bordallo.
                                   Betty Sutton.
                                   Ben R. Lujan.
                                   Raul M. Grijalva.