H. Rept. 113-363 - 113th Congress (2013-2014)
February 27, 2014, As Reported by the Judiciary Committee

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House Report 113-363 - RESPONSIBLY AND PROFESSIONALLY INVIGORATING DEVELOPMENT ACT OF 2013




[House Report 113-363]
[From the U.S. Government Publishing Office]


113th Congress                                            Rept. 113-363
                        HOUSE OF REPRESENTATIVES
 2d Session                                                      Part 1

======================================================================



 
  RESPONSIBLY AND PROFESSIONALLY INVIGORATING DEVELOPMENT ACT OF 2013

                                _______
                                

 February 27, 2014.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

   Mr. Goodlatte, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 2641]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 2641) to provide for improved coordination of agency 
actions in the preparation and adoption of environmental 
documents for permitting determinations, and for other 
purposes, having considered the same, reports favorably thereon 
without amendment and recommends that the bill do pass.

                                CONTENTS

                                                                   Page

Purpose and Summary..............................................     2
Background and Need for the Legislation..........................     2
Hearings.........................................................    11
Committee Consideration..........................................    12
Committee Votes..................................................    12
Committee Oversight Findings.....................................    16
New Budget Authority and Tax Expenditures........................    16
Congressional Budget Office Cost Estimate........................    16
Duplication of Federal Programs..................................    20
Disclosure of Directed Rule Makings..............................    20
Performance Goals and Objectives.................................    20
Advisory on Earmarks.............................................    20
Section-by-Section Analysis......................................    20
Changes in Existing Law Made by the Bill, as Reported............    23
Dissenting Views.................................................    35

                          Purpose and Summary

    H.R. 2641, the ``Responsibly And Professionally 
Invigorating Development Act of 2013'' (``RAPID Act'') fosters 
job creation and economic growth by amending the Administrative 
Procedure Act to establish a more streamlined and transparent 
Federal permitting process for construction projects. The 
legislation builds on earlier, more limited steps to streamline 
the permitting process and responds affirmatively to the call 
of the President's Council on Jobs and Competitiveness to 
streamline permitting further.

                Background and Need for the Legislation

    Delays in the Federal permitting process have caused 
gathering concern in recent years. During the 112th Congress, 
the President's Council on Jobs and Competitiveness highlighted 
improvement of the Federal permitting process as one of its top 
recommendations for improving job creation and economic growth.
    The key to improving the Federal permitting process is not 
difficult to identify. As witnesses stated before the 
Subcommittee on Courts, Commercial and Administrative Law 
during the 112th Congress, ``[t]he problem at hand is the 
increasingly undue length of time it takes to conduct a 
[National Environmental Policy Act (NEPA)] review of a proposed 
project, be it public or private, that relies on Federal funds 
or approval of some kind.''\1\ ``The Hoover Dam was built in 5 
years. The Empire State Building took 1 year and 45 days. The 
New Jersey Turnpike needed only 4 years from inception to 
completion. Fast forward to 2012, and the results are much 
different. Cape Wind has needed over a decade to find out if it 
can build an offshore wind farm. Shell Corporation is at 6 
years and counting on its permits for oil and gas exploration 
in Beaufort Bay. And the Port of Savannah, Georgia has spent 13 
years reviewing a potential dredging project, with no end to 
the review process in sight.''\2\ ``[T]he Congress and 
President of 1969 never intended that an environmental impact 
statement process--a statement, mind you--would devolve over 
time into a multiyear incredibly arcane thicket of rules, huge 
reports, and constant court fights in which any project of 
importance to the Nation or a State that has some kind of 
Federal hook attached would likely be delayed.''\3\ ``[W]hen 
Congress was debating the issue, they were talking about time 
frames like 90 days. In 1981 [the Council on Environmental 
Quality (CEQ)] thought it could all be done in a year.''\4\ A 
recent study found that the average length of time to prepare 
an Environmental Impact Statement (EIS) is 3.4 years and gets 
longer each year, making the problem worse and worse.\5\
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    \1\Responsibly And Professionally Invigorating Development (RAPID) 
Act of 2012: Hearing before the Subcomm. on Courts, Commercial and 
Administrative Law of the H. Comm. on the Judiciary, 112th Cong. (Apr. 
25, 2012), (hereinafter ``RAPID Act Hearing'') at 61 (Testimony of Gus 
Bauman).
    \2\Id. at 43 (Testimony of William Kovacs).
    \3\Id. at 61 (Testimony of Gus Bauman).
    \4\Id. at 39 (Testimony of William Kovacs).
    \5\See Piet deWitt & Carole deWitt, ``How Long Does It Take to 
Prepare and Environmental Impact Statement?,'' Environmental Practice 
10, pp. 164-174 (Dec. 2008).
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    To respond to the need for reform, the RAPID Act was first 
introduced as H.R. 4377 in the 112th Congress. H.R. 4377 passed 
the House on July 26, 2012, as title V of H.R. 4078, the ``Red 
Tape Reduction and Small Business Job Creation Act of 2012,'' 
on a bipartisan vote of 245-172. Rep. Marino (R-PA) 
reintroduced the RAPID Act as H.R. 2641, the ``Responsibly And 
Professionally Invigorating Development Act of 2013,'' on July 
10, 2013, with bipartisan support.

            I. THE NATIONAL ENVIRONMENTAL POLICY ACT OF 1969

    The National Environmental Policy Act of 1969 (``NEPA'') 
``declares that it is the continuing policy of the Federal 
Government, in cooperation with State and local governments, 
and other concerned public and private organizations, to use 
all practicable means and measures, including financial and 
technical assistance, in a manner calculated to foster and 
promote the general welfare, to create and maintain conditions 
under which man and nature can exist in productive harmony, and 
fulfill the social, economic, and other requirements of present 
and future generations of Americans.''\6\ In pursuit of this 
goal, NEPA requires agencies to prepare a ``detailed'' 
statement analyzing ``major Federal actions significantly 
affecting the quality of the human environment.''\7\
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    \6\42 U.S.C. Sec. 4331.
    \7\Id. Sec. 4332(2)(C).
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    The environmental review required by NEPA typically causes 
agencies to generate one of three documents: a categorical 
exclusion (CE); an environmental assessment (EA); or, an 
environmental impact statement (EIS). A CE is the shortest 
document and is used for types of actions that are known not to 
significantly affect the environment. An EA is used to 
determine if there is a significant effect on the environment. 
If not, then the agency issues a finding of no significant 
impact (FONSI); otherwise, the agency will prepare an EIS, 
which is a thorough analysis of the proposed agency action, its 
environmental impact, and a range of alternatives and their 
impacts.\8\ ``The required documents can be voluminous and may 
take years to produce.''\9\
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    \8\See generally Kristina Alexander, Overview of National 
Environmental Policy Act (NEPA) Requirements (CRS RS20621 Jan. 12, 
2011).
    \9\Id. at 3.
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    ``CEQ estimates that the vast majority of Federal actions 
require an EA or are categorically excluded from the 
requirement to prepare an EA or EIS.''\10\ But projects that 
require an EA or an EIS, and therefore ``result in the most 
significant delays during NEPA,'' typically also are ``[t]he 
types of projects that create jobs''.\11\
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    \10\Linda Luther, The National Environmental Policy Act (NEPA): 
Background and Implementation, at 15 (CRS RL33152 Jan. 10, 2011).
    \11\RAPID Act Hearing, note 1 supra, at 201 (Testimony of Thomas 
Margro).
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    An EIS ensures that agencies carefully consider a proposed 
action's environmental impacts during, and provides 
transparency into, the decision-making process. ``NEPA does not 
require the agency to choose the most environmentally 
preferable alternative.''\12\ Regulations require robust public 
participation in this process, from the ``scoping'' stage where 
issues are identified, through drafting and in the final EIS, 
which should respond to comments made throughout. Public 
hearings may be utilized.\13\ Because NEPA does not create a 
cause of action, lawsuits challenging an agency's review are 
brought under the APA's 6-year statute of limitations.\14\
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    \12\Alexander, note 8 supra, at 4; see also Robertson v. Methow 
Valley Citizens Council, 490 U.S. 332, 350 (1989) (NEPA ``does not 
mandate particular results, but simply prescribes the necessary 
process.'').
    \13\Alexander, note 8 supra, at 4-5.
    \14\See 28 U.S.C. Sec. 2401.
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    Of course, NEPA is not the only statute that requires 
Federal agencies to analyze environmental effects. Myriad 
federal, state, tribal and local laws also require analysis of 
how a proposed government action could impact particular 
aspects of the environment (e.g., clean air, endangered 
species). In preparing an EIS, agencies should address all of 
the environmental issues they are required to consider:
    To integrate the compliance process and avoid duplication 
of effort, NEPA regulations specify that, to the fullest extent 
possible, agencies must prepare the EIS concurrently with any 
environmental requirements. The EIS must list any Federal 
permits, licenses, and other entitlements required to implement 
the proposed project. In this capacity, NEPA functions as an 
`umbrella' statute; any study, review, or consultation required 
by any other law that is related to the environment should be 
conducted within the framework of the NEPA process.\15\
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    \15\Luther, note 10 supra, at 25.
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               II. REGULATIONS OUTLINING THE NEPA PROCESS

    NEPA created the Council on Environmental Quality (CEQ) 
within the Executive Office of the President.\16\ The CEQ 
promulgates regulations implementing NEPA.
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    \16\See 28 U.S.C. Sec. 4342.
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A. Environmental Impact Statements (EIS)
    The basic EIS preparation process under NEPA regulations 
begins when the lead agency (i.e., ``the agency or agencies 
preparing or having taken primary responsibility for preparing 
the environmental impact statement''\17\) publishes a notice of 
intent in the Federal Register, briefly describing the proposed 
action and the agency's scoping process, and giving contact 
information and/or hearing dates. The lead agency then 
initiates the ``scoping process,''\18\ which entails:
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    \17\40 C.F.R. Sec. 1508.16.
    \18\Id. Sec. 1501.7.

        
 LIdentifying and inviting ``cooperating 
        agencies,''\19\ as well as stakeholders and other 
        interested parties, to participate in preparing the 
        EIS;
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    \19\Id. Sec. 1508.5 (``any Federal agency other than a lead agency 
which has jurisdiction by law or special expertise with respect to any 
environmental impact involved in a proposal (or a reasonable 
alternative) for legislation or other major Federal action 
significantly affecting the quality of the human environment'').

        
 LIdentifying significant issues to be analyzed 
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        in depth in the EIS;

        
 LEliminating insignificant issues;

        
 LAllocating responsibilities among the lead 
        and cooperating agencies, although the lead agency 
        ultimately remains responsible for the EIS;

        
 LIdentifying other relevant environmental 
        review documents, or review and consultation 
        requirements, to avoid duplication and to maximize 
        efficiency.\20\
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    \20\Id. Sec. 1501.7(a).

    The alternatives section ``is the heart of the 
environmental impact statement.''\21\ The lead agency must 
``rigorously explore and objectively evaluate all reasonable 
alternatives'' and explain why other alternatives have been 
excluded.\22\ The EIS must ``devote substantial treatment to 
each alternative in detail'' (including the alternative of no 
action) so the reader may evaluate them comparatively, and give 
the lead agency's preferred alternative in the draft EIS and 
chosen alternative in the final EIS.\23\ The lead agency may 
set time and page limits for preparing the EIS, although none 
are required.\24\
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    \21\Id. Sec. 1502.14.
    \22\Id. Sec. 1502.14(a).
    \23\Id. Sec. 1502.14(b)-(f).
    \24\Id. Sec. 1501.7(b).
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    The EIS is prepared in two stages: draft and final. The 
draft EIS should be within the parameters established during 
the scoping process.\25\ The lead agency is responsible for 
inviting comments on the draft EIS, from interested 
governmental agencies or bodies, the applicant, and the 
public.\26\ The regulations recommend a standard format for the 
final EIS, to ``encourage good analysis and clear presentation 
of the alternatives including the proposed action.''\27\
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    \25\Id. Sec. 1502.9.
    \26\Id. Sec. 1503.1(a)(4) (The lead agency shall ``affirmatively 
solicit[] comments from those persons or organizations who may be 
interested or affected'').
    \27\Id. Sec. 1502.10. (The recommended format is: Cover sheet; 
Summary; Table of contents; Purpose of and need for action; 
Alternatives including proposed action; Affected environment; 
Environmental consequences; List of preparers; List of Agencies, 
Organizations, and persons to whom copies of the statement are sent; 
Index; Appendices (if any)).
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B. LEnvironmental Assessments (EA) and Categorical Exclusions (CE)
    NEPA regulations do not address in detail the process for 
formulating an EA. Instead, each agency has the authority to 
develop its own process\28\, although ``[a]gencies may prepare 
an environmental assessment on any action at any time in order 
to assist agency planning and decisionmaking''\29\ or to: ``(1) 
Briefly provide sufficient evidence and analysis for 
determining whether to prepare an environmental impact 
statement or a finding of no significant impact; (2) Aid an 
agency's compliance with the Act when no environmental impact 
statement is necessary; (3) Facilitate preparation of a 
statement when one is necessary.''\30\ The general format for 
an EA is that it ``[s]hall include brief discussions of the 
need for the proposal, of alternatives as required by section 
102(2)(E), of the environmental impacts of the proposed action 
and alternatives, and a listing of agencies and persons 
consulted.''\31\ Regarding CEs, agencies are required to list 
in their regulations ``Specific criteria for and identification 
of'' actions that typically result in a CE (as well as those 
that typically result in an EA and in an EIS).\32\
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    \28\Id. Sec. Sec. 1501.3, 1507.3.
    \29\Id. Sec. 1501.3(b).
    \30\Id. Sec. 1508.9(a).
    \31\Id. Sec. 1508.9(b).
    \32\Id. Sec. 1507.3(b).
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              III. PROJECT DELAYS DUE TO THE NEPA PROCESS

    It has long been alleged that NEPA is overly cumbersome, 
causing a lengthy decision-making process for Federal agencies. 
The cause of delay falls into two categories: preparation of 
the documents required by NEPA (e.g., an EIS) and litigation 
challenging the documents' adequacy. Generally, stakeholders 
express that EISs have become far too lengthy and technical, 
and that litigation--and the mere threat of litigation during 
the 6-year statute of limitations period--deters breaking 
ground on a project even after all permits have been 
approved.\33\ The deWitt study, which ``appears to be the only 
true quantitative analysis of the time required to complete an 
EIS,'' found that ``between January 1, 1998 and December 31, 
2006, 53 Federal executive branch entities made available to 
the public 2,236 final EIS documents; the time to prepare an 
EIS during this time ranged from 51 days to 6,708 days (18.4 
years). The average time for all Federal entities was 3.4 
years, but most of the shorter EIS documents occurred in the 
earlier years of the analysis; EIS completion time increased by 
37 days each year.''\34\ In the 109th Congress, the U.S. House 
of Representatives Committee on Natural Resources Task Force on 
Improving and Updating the National Environmental Policy Act 
received testimony regarding delays in environmental review and 
permitting, including delays that cost jobs by causing projects 
to fail, and made suggestions to improve the NEPA process in 
its Final Report.\35\
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    \33\See generally Luther, note 10 supra, at 26-29; Linda Luther, 
The National Environmental Policy Act: Streamlining NEPA, at 7-10 
(RL33267 Dec. 6, 2007).
    \34\RAPID Act Hearing, note 1 supra, at 47-48 (Testimony of William 
Kovacs).
    \35\Available at http://www.law.georgetown.edu/gelpi/
research_archive/nepa/NEPATaskForce
_FinalRecommendations.pdf (last accessed June 22, 2012).
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    Stakeholders believe this ``paralysis by analysis'' results 
in lost jobs when project sponsors and capital withdraw their 
support in the face of lengthy delays. In March 2011, as part 
of its Project No Project initiative the U.S. Chamber of 
Commerce published a study of 351 proposed energy projects--
solar, wind, wave, bio-fuel, coal, gas and nuclear--that have 
been delayed or cancelled altogether due to extensive delays in 
the Federal permitting process.\36\ ``[I]f these projects had 
been built, there would have been direct investment in the 2010 
timeframe of $576 billion; that trickle-down effect or the 
multiplier effect would have been a $1.1 trillion boost to the 
economy and it would have created 1.9 million jobs through the 
7 years of construction.''\37\
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    \36\Steve Pociask & Joseph P. Fuhr, Jr., Progress Denied: A Study 
on the Potential Economic Impact of Permitting Challenges Facing 
Proposed Energy Projects (Mar. 11, 2011), available at http://
www.uschamber.com/reports/progress-denied-study-potential-economic-
impact-permitting-challenges-facing-proposed-energy (last accessed June 
22, 2012).
    \37\RAPID Act Hearing, note 1 supra, at 39 (Testimony of William 
Kovacs).
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    One timely example of the need to reform Federal permitting 
and environmental review is the Keystone Pipeline XL project, 
which--after more than 1,200 days and 10,000 pages of 
analysis--prompted an Act of Congress to force the 
Administration to decide the issue by February 21, 2012.\38\ 
Even then, on January 18, 2012, the Administration announced 
the Keystone Pipeline XL permit would not be approved by the 
February 21, 2012, deadline. On March 8, 2012, the Senate 
narrowly defeated an amendment to a transportation bill to 
override the President's decision and approve the pipeline.\39\ 
On March 22, 2012, the President announced during a speech in 
Oklahoma that he was ordering agencies to fast-track review of 
the TransCanada pipeline from Cushing, Okla., to refineries on 
the Gulf Coast of Texas.\40\ TransCanada then reapplied to 
build the pipeline, which would run from Alberta to the Gulf of 
Mexico,\41\ and the U.S. Department of State announced that it 
would begin preparing a new, supplemental environmental impact 
statement.\42\ TransCanada first applied for a permit to build 
the pipeline in September 2008.\43\
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    \38\See H.R. 3765, Title V, Subtitle A.
    \39\See S. Amdt. 1537 to S. 1813 (Mar. 8, 2012).
    \40\See ``Remarks by the President on American-Made Energy,'' Mar. 
22, 2012, available at http://www.whitehouse.gov/the-press-office/2012/
03/22/remarks-president-american-made-energy (last accessed June 22, 
2012) (``Now, right now, a company called TransCanada has applied to 
build a new pipeline to speed more oil from Cushing to state-of-the-art 
refineries down on the Gulf Coast. And today, I'm directing my 
administration to cut through the red tape, break through the 
bureaucratic hurdles, and make this project a priority, to go ahead and 
get it done.'').
    \41\Dan Frosch, ``New Application Is Submitted for Keystone 
Pipeline,'' New York Times (May 4, 2012), available at http://
www.nytimes.com/2012/05/05/us/transcanada-submits-new-application-for-
keystone-project.html (last accessed June 22, 2012).
    \42\See http://www.keystonepipeline-xl.state.gov (last accessed 
June 22, 2012).
    \43\See http://energycommerce.house.gov/keystonexl.shtml (last 
accessed June 22, 2012).
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    Save the Peaks Coalition v. United States Forest Service 
illustrates how a party can delay a project through litigation 
after ``resting on its rights.'' The Ninth Circuit called the 
plaintiff's obstructionist tactics ``a serious abuse of the 
judicial process'' but still declined to bar their lawsuit.\44\ 
Save the Peaks Coalition (SPC) sued the U.S. Forest Service 
(USFS) and Arizona Snowbowl Resort Limited Partnership (ASRLP) 
after they ``had successfully defended an agency decision to 
allow snowmaking at a ski resort on Federal land all the way to 
the United States Supreme Court.''\45\ SPC ``had closely 
monitored and, in some cases, actively encouraged and helped 
finance the first litigation,'' but waited until the last 
moment to sue.\46\ The court decried SPC's deliberate delaying 
tactics while bemoaning that current law allows them:
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    \44\Save the Peaks Coal. v. U.S. Forest Serv., 669 F.3d 1025, 1034 
(9th Cir. 2012).
    \45\Id. at 1028.
    \46\Id.

        Although it is apparent to us that the `new' plaintiffs 
        and their counsel have grossly abused the judicial 
        process by strategically holding back claims that could 
        have, and should have, been asserted in the first 
        lawsuit (and would have been decided earlier but for 
        counsel's procedural errors in raising those claims), 
        we are compelled to hold that laches does not apply 
        here because the USFS and ASRLP cannot demonstrate that 
        they suffered prejudice, as defined by our case 
        law.\47\
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    \47\Id.

       IV. EXAMPLES OF AND RECOMMENDATIONS FOR NEPA STREAMLINING

A. SAFETEA-LU and MAP-21
    ``The RAPID Act almost exclusively relies upon concepts 
that are part of existing law and that have been shown to work 
in other contexts, such as SAFETEA-LU,''\48\ which authorized 
spending on Federal highway programs for FYs 2005-2009. Section 
6002, regarding ``Efficient environmental reviews for project 
decisionmaking,'' expedited construction by codifying existing 
regulatory requirements, definitions, concepts and procedures. 
Specifically, Section 6002 utilized the lead agency/
participating agency NEPA process for conducting environmental 
reviews: project initiation; defining the project's purpose and 
need; coordination and scheduling for conducting the review; 
and, identifying and resolving issues that could delay the 
approval process. SAFETEA-LU also established a 180-day statute 
of limitations to challenge a final agency action (e.g., 
permitting decision) related to the environmental review.\49\ A 
bipartisan bill co-sponsored by numerous Democrats, SAFETEA-LU 
passed the House 412 to 8. The Federal Highway Administration 
found Section 6002 has reduced the average NEPA review time 
almost by half, from 73 months to 36.85 months.\50\
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    \48\RAPID Act Hearing, note 1 supra, at 56 (Testimony of William 
Kovacs).
    \49\See 23 U.S.C. Sec. 139(l).
    \50\Office of Project Development & Environmental Review, Federal 
Highway Administration, U.S. Department of Transportation, ``Biannual 
Assessment of SAFETEA-LU Section 6002 Implementation Effectiveness,'' 
at 9 (Sept. 2010) (OPDER Assessment).
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    In 2012, the ``Moving Ahead for Progress in the 21st 
Century Act'' (MAP-21), signed into law as P.L. 112-141, again 
legislated steps to streamline permitting of federally funded 
transportation projects.\51\ MAP-21 contained a shorter statute 
of limitations than SAFETEA-LU, however, reducing the time 
allowed for suit to 150 days.\52\
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    \51\See P.L. 112-141, Sec. Sec. 1301-1323.
    \52\Id., Sec. 1308.
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    During its consideration of the RAPID Act, the Subcommittee 
on Regulatory Reform, Commercial and Antitrust Law received 
testimony demonstrating the effectiveness of SAFETEA-LU's and 
MAP-21's permitting reforms and their usefulness as models for 
expanded reform, as well as testimony detailing the 
effectiveness of permit streamlining reforms in the American 
Recovery and Reinvestment Act.\53\
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    \53\See, e.g., OPDER Assessment at 9; William L. Kovacs, Statement 
of the U.S. Chamber of Commerce, Hearing on the ``Responsibly And 
Professionally Invigorating Development Act of 2013,'' House Committee 
on the Judiciary, Subcommittee on Regulatory Reform, Commercial and 
Antitrust Law at 12-13 (July 11, 2013).
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B. The Energy Policy Act of 2005
    The Energy Policy Act of 2005 also contained several NEPA 
streamlining provisions, requiring the Secretaries of 
Agriculture, Commerce, Defense, Energy and the Interior to 
complete within 2 years any environmental review related to 
designating energy corridors in the West.\54\ The Act required 
the Secretary of the Interior to complete within 18 months a 
programmatic EIS ``for a commercial leasing program for oil 
shale and tar sands resources on public lands, with an emphasis 
on the most geologically prospective lands within each of the 
States of Colorado, Utah, and Wyoming.''\55\ The Act also 
codified principles of inter-agency coordination by directing 
the Secretary of Energy, in consultation with the Secretaries 
of Interior, Agriculture and Defense, to prepare a memorandum 
of understanding ``to coordinate all applicable Federal 
authorizations and environmental reviews relating to a proposed 
or existing utility facility.'' The MOU was needed to ``provide 
for an agreement among the affected Federal agencies to prepare 
a single environmental review document to be used as the basis 
for all Federal authorization decisions.''\56\
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    \54\109 P.L. 58, Sec. 368.
    \55\109P.L. 58, Sec. 369.
    \56\109 P.L. 58, Sec. 372.
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C. The NEPA Task Force
    In July 2006 the House Natural Resources Committee's NEPA 
Task Force released its Final Report,\57\ with 20 
recommendations based on input received at five field hearings 
and two more hearings in Washington, D.C., and on comments to 
the December 2005 draft report. Finding that ``there are no 
time limits for any component of the NEPA process'' because 
agencies have not ``establish[ed] appropriate time limits for 
the [EIS] process'' as the regulations require, the Final 
Report recommended that agencies have 18 months to complete an 
EIS and 9 months to complete an EA.\58\ The Final Report 
recommended that the CEQ should ``prepare regulations that 
would, in cases where state environmental reviews are 
functionally equivalent to NEPA requirements, allow these 
requirements to satisfy commensurate NEPA requirements.''\59\ 
Regarding the need to streamline litigation, the Final Report 
recommended that only parties that had ``been actively involved 
throughout the [NEPA] process'' could bring a lawsuit, with a 
180-day statute of limitations.\60\ The Final Report 
recommended that agencies should have to consider only 
``reasonable'' alternatives in its analysis, defined as ``those 
that are economically and technically feasible.''\61\ The Final 
Report also stressed the need to clarify the responsibilities 
of lead agencies, and that the lead agency should be in charge 
of ``develop[ing] a consolidated record for the NEPA reviews, 
EIS development, and other NEPA decisions,'' as well as 
``recognizing the mission and operations of cooperating 
agencies.''\62\
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    \57\See note 35 supra.
    \58\Id., Recommendation 1.3.
    \59\Id., Recommendation 3.1.
    \60\Id., Recommendation 4.1.
    \61\Id., Recommendation 5.1.
    \62\Id., Recommendation 6.2.
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D. LPresident's Council on Jobs and Competitiveness
    During the 112th Congress, the President's Council on Jobs 
and Competitiveness recommended streamlined permitting as a 
strategy to create jobs. A June 2011 op-ed by Jeffrey Immelt, 
Chair of the Jobs Council and Chairman and CEO of General 
Electric, and Kenneth I. Chenault, Chairman and CEO of American 
Express, urged the President: ``Streamline permitting. Cut red 
tape so job-creating construction and infrastructure projects 
can move forward. The administration can take a few simple 
steps to streamline the process of obtaining permits, without 
undercutting the protections that our regulatory system 
provides.''\63\ The Jobs Council also observed that ``[t]he 
current system for permitting and approving job-creating 
projects, which involves federal, state and local agencies, can 
lead to significant delays.'' In June 2011 the Jobs Council 
made several relevant recommendations to the President:
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    \63\``How We're Meeting the Job Creation Challenge,'' Wall Street 
Journal, June 13, 2011.

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 LData collection and transparency;

        
 LEarly stakeholder engagement;

        
 LCentralized monitoring and accountability for 
        Federal agency performance;

        
 LLimiting duplication among local, state, and 
        Federal agency reviews;

        
 LImprove litigation management.\64\
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    \64\``Simply Regulatory Review and Streamline Project Approvals,'' 
Jobs Council 
Recommendations, available at http://files.jobs-council.com/files/2011/
10/JobsCouncil_
Regulatory.pdf (last accessed June 22, 2012).

The Jobs Council reiterated these suggestions in its October 
2011 Interim Report, explaining that ``[t]he thrust is to give 
stakeholders visibility into the process, deliver timely 
reviews and avoid duplicative analysis and requirements.''\65\ 
The Jobs Council's year-end report also mentioned the 
importance of permit streamlining.\66\
---------------------------------------------------------------------------
    \65\Available at http://files.jobs-council.com/jobscouncil/files/
2011/10/JobsCouncil_Interim
Report_Oct11.pdf, p. 27 (last accessed June 22, 2012).
    \66\Available at http://files.jobs-council.com/files/2012/01/
JobsCouncil_2011YearEndReport
Web.pdf, pp. 42-44 (last accessed June 22, 2012).
---------------------------------------------------------------------------
E. The Administration
    Following these recommendations, on August 31, 2011, the 
President asked the Secretaries of Agriculture, Commerce, 
Housing and Urban Development, the Interior, and Transportation 
each to identify three ``high-impact, job-creating 
infrastructure projects that can be expedited through 
outstanding review and permitting processes.''\67\ The 
President described this initiative as ``a common-sense step to 
speed job creation in the near term while increasing our 
competitiveness and strengthening the economy in the long 
term.''\68\ On October 11, 2011, the President announced 14 
projects for expedited permitting and environmental review.\69\ 
These projects are tracked by the online Federal Infrastructure 
Projects Dashboard (``Dashboard''), which was created pursuant 
to the August 31 Presidential Memorandum.\70\ On March 22, 
2012, the President by Executive Order 13604 established a 
``Steering Committee on Federal Infrastructure Permitting and 
Review Process Improvement'' to select projects to be tracked 
on the Dashboard and to ``develop and publish on the Dashboard 
a Federal Plan to significantly reduce the aggregate time 
required to make Federal permitting and review decisions on 
infrastructure projects while improving outcomes for 
communities and the environment.''\71\ President Obama 
emphasized that the Federal Plan should address the following 
goals:
---------------------------------------------------------------------------
    \67\Press Release, ``White House Announces Steps to Expedite High 
Impact Infrastructure Projects to Create Jobs,'' Aug. 31, 2011, 
available at http://www.whitehouse.gov/the-press-office/2011/08/31/
white-house-announces-steps-expedite-high-impact-infrastructure-
projects (last ac-
cessed June 22, 2012).
    \68\Id.
    \69\Press Release, ``Obama Administration Announces Selection of 14 
Infrastructure Projects to be Expedited Through Permitting and 
Environmental Review Process,'' Oct. 11, 2011, available at http://
www.whitehouse.gov/the-press-office/2011/10/11/obama-administration-
announces-
selection-14-infrastructure-projects-be-e (last accessed June 22, 
2012).
    \70\See http://permits.performance.gov/(last accessed June 22, 
2012).
    \71\Exec. Order No. 13604, Improving Performance of Federal 
Permitting and Review of Infrastructure Projects, 77 Fed. Reg. 18887 
(Mar. 22, 2012).

        
 LInstitutionalizing best practices for: 
        enhancing Federal, State, local, and tribal government 
        coordination on permitting and review processes (such 
        as conducting reviews concurrently rather than 
        sequentially to the extent practicable); avoiding 
        duplicative reviews; and engaging with stakeholders 
---------------------------------------------------------------------------
        early in the permitting process;

        
 LDeveloping mechanisms to better communicate 
        priorities and resolve disputes among agencies at the 
        national and regional levels;

        
 LInstitutionalizing use of the Dashboard, 
        working with the CIO to enhance the Dashboard, and 
        utilizing other cost-effective information technology 
        systems to share environmental and project-related 
        information with the public, project sponsors, and 
        permit reviewers; and

        
 LIdentifying timeframes and Member Agency 
        responsibilities for the implementation of each 
        proposed action.

    The Federal Plan has since been released\72\ and contains 
numerous suggestions for agencies to follow when conducting 
environmental reviews that are consistent both with the goals 
identified in Executive Order 13604 and with suggestions made 
at the Subcommittee's April 25, 2012, hearing.
---------------------------------------------------------------------------
    \72\See http://permits.performance.gov/sites/default/files/
Federal_Infrastructure_Plan.pdf (last accessed June 22, 2012).
---------------------------------------------------------------------------
    Relatedly, on March 6, 2012, the CEQ issued a memorandum to 
Federal agencies and departments regarding ``Improving the 
Process for Preparing Efficient and Timely Environmental 
Reviews under [NEPA].'' This guidance was issued to ``emphasize 
and clarify'' the opportunities for agencies to ``meet the 
goal'' of conducting ``high quality, efficient and timely 
environmental reviews'' under NEPA that are ``fully consistent 
with a thorough and meaningful environmental review.'' The 
memorandum encouraged agencies to follow numerous practices 
that would be required by the Bill, such as the need for EISs 
and EAs to be concise and clear; the importance of early and 
effective scoping and of inter-agency and inter-governmental 
coordination, including conducting concurrent reviews; 
adopting, when appropriate, existing environmental study 
documents; and, the importance of establishing clear timelines 
and deadlines. ``In many ways, the RAPID Act is a codification 
of principles set forth in CEQ's March 2012 guidance on NEPA 
efficiency.''\73\ Environmental review already has been 
completed, permits have been issued, and construction has 
begun, for several of these projects.\74\
---------------------------------------------------------------------------
    \73\RAPID Act Hearing, note 1 supra, at 57 (Testimony of William 
Kovacs).
    \74\See http://permits.performance.gov/news-and-updates (June 22, 
2012).
---------------------------------------------------------------------------
    Most recently, on May 17, 2013, the President issued a 
presidential memorandum directing the aforementioned Steering 
Committee, in conjunction with the Administration's Chief 
Performance Officer (CPO), OIRA, and the Council on 
Environmental Quality to modernize regulations, policies and 
procedures on Federal infrastructure permitting and review. 
This initiative is intended to include the Departments of 
Defense, Interior, Agriculture, Commerce, Transportation, 
Energy, and Homeland Security, the Environmental Protection 
Agency, the Advisory Council on Historic Preservation, the 
Department of the Army, the Council on Environmental Quality, 
and ``such other agencies or offices as the CPO may invite to 
participate.''
    This history reflects the effectiveness of prior, more 
incremental permit streamlining steps and a consensus that 
permit streamlining should be expanded and made more durable. 
The RAPID Act achieves both of those goals.

                                Hearings

    The Committee's Subcommittee on Regulatory Reform, 
Commercial and Antitrust Law held 1 day of hearings on H.R. 
2641 on July 11, 2013. The Subcommittee received testimony at 
the hearing from William L. Kovacs, Senior Vice President for 
Environment, Technology & Regulatory Affairs, U.S. Chamber of 
Commerce, Dennis Duffy, Vice President for Regulatory Affairs, 
EMI Energy, Inc., Nick Ivanoff, President & CEO, Ammann & 
Whitney and First Vice Chairman of the American Road and 
Transportation Builders Association, and Scott Slesinger, 
Legislative Director, Natural Resources Defense Council, with 
additional material submitted jointly by Alaska's Big Village 
Network, Alaska Inter-Tribal Council, Alaska Wilderness League, 
Center for Biological Diversity, Center for Water Advocacy, 
Defenders of Wildlife, Earthjustice, Environmental Protection 
Information Center, Great Old Broads for the Wilderness, High 
Country Citizens' Alliance, The Lands Council, League of 
Conservation Voters, Natural Resources Defense Council, Public 
Citizen, San Juan Citizens Alliance, Sierra Club, Southern 
Environmental Law Center, Western Environmental Law Center, The 
Wilderness Society, and Wilderness Workshop.

                        Committee Consideration

    On July 18, 2013, the Subcommittee on Regulatory Reform, 
Commercial and Antitrust Law met in open session and ordered 
the bill H.R. 2641 favorably reported, without amendment, by 
voice vote, a quorum being present. On July 31, 2013, the 
Committee met in open session and ordered the bill H.R. 2641 
favorably reported without amendment, by a rollcall vote of 18 
to 9, a quorum being present.

                            Committee Votes

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, the Committee advises that the 
following rollcall votes occurred during the Committee's 
consideration of H.R. 2641.
    1. The amendment offered by Mr. Nadler exempts from the 
bill projects that pertain to nuclear facilities in areas 
designated as earthquake fault zones. The amendment was 
defeated by a rollcall vote of 9-15.

                             ROLLCALL NO. 1
------------------------------------------------------------------------
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................              X
Mr. Sensenbrenner, Jr. (WI)....................              X
Mr. Coble (NC).................................              X
Mr. Smith (TX).................................
Mr. Chabot (OH)................................              X
Mr. Bachus (AL)................................              X
Mr. Issa (CA)..................................
Mr. Forbes (VA)................................
Mr. King (IA)..................................              X
Mr. Franks (AZ)................................              X
Mr. Gohmert (TX)...............................              X
Mr. Jordan (OH)................................
Mr. Poe (TX)...................................
Mr. Chaffetz (UT)..............................
Mr. Marino (PA)................................              X
Mr. Gowdy (SC).................................              X
Mr. Amodei (NV)................................
Mr. Labrador (ID)..............................              X
Ms. Farenthold (TX)............................              X
Mr. Holding (NC)...............................              X
Mr. Collins (GA)...............................
Mr. DeSantis (FL)..............................              X
Mr. Smith (MO).................................              X

Mr. Conyers, Jr. (MI), Ranking Member..........      X
Mr. Nadler (NY)................................      X
Mr. Scott (VA).................................      X
Mr. Watt (NC)..................................
Ms. Lofgren (CA)...............................
Ms. Jackson Lee (TX)...........................      X
Mr. Cohen (TN).................................
Mr. Johnson (GA)...............................      X
Mr. Pierluisi (PR).............................      X
Ms. Chu (CA)...................................      X
Mr. Deutch (FL)................................
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Ms. DelBene (WA)...............................      X
Mr. Garcia (FL)................................
Mr. Jeffries (NY)..............................      X
                                                ------------------------
    Total......................................      9      15
------------------------------------------------------------------------

    2. The amendment offered by Mr. Conyers adds a rule of 
construction that the bill is not to be interpreted to change 
existing laws that require or provide for public comment or 
public participation during agency decision-making processes. 
The amendment was defeated by a rollcall vote of 7-16.

                             ROLLCALL NO. 2
------------------------------------------------------------------------
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................              X
Mr. Sensenbrenner, Jr. (WI)....................              X
Mr. Coble (NC).................................              X
Mr. Smith (TX).................................              X
Mr. Chabot (OH)................................              X
Mr. Bachus (AL)................................              X
Mr. Issa (CA)..................................
Mr. Forbes (VA)................................
Mr. King (IA)..................................              X
Mr. Franks (AZ)................................
Mr. Gohmert (TX)...............................              X
Mr. Jordan (OH)................................              X
Mr. Poe (TX)...................................
Mr. Chaffetz (UT)..............................
Mr. Marino (PA)................................              X
Mr. Gowdy (SC).................................              X
Mr. Amodei (NV)................................
Mr. Labrador (ID)..............................              X
Ms. Farenthold (TX)............................              X
Mr. Holding (NC)...............................              X
Mr. Collins (GA)...............................
Mr. DeSantis (FL)..............................              X
Mr. Smith (MO).................................              X

Mr. Conyers, Jr. (MI), Ranking Member..........      X
Mr. Nadler (NY)................................      X
Mr. Scott (VA).................................      X
Mr. Watt (NC)..................................
Ms. Lofgren (CA)...............................
Ms. Jackson Lee (TX)...........................      X
Mr. Cohen (TN).................................
Mr. Johnson (GA)...............................
Mr. Pierluisi (PR).............................      X
Ms. Chu (CA)...................................      X
Mr. Deutch (FL)................................
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Ms. DelBene (WA)...............................      X
Mr. Garcia (FL)................................
Mr. Jeffries (NY)..............................
                                                ------------------------
    Total......................................      7      16
------------------------------------------------------------------------

    3. The amendment offered by Ms. Jackson Lee strikes from 
the bill terms that deem permits for covered projects approved 
if agencies do not meet deadlines in the bill. The amendment 
was defeated by a rollcall vote of 8-16.

                             ROLLCALL NO. 3
------------------------------------------------------------------------
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................              X
Mr. Sensenbrenner, Jr. (WI)....................              X
Mr. Coble (NC).................................              X
Mr. Smith (TX).................................              X
Mr. Chabot (OH)................................              X
Mr. Bachus (AL)................................              X
Mr. Issa (CA)..................................
Mr. Forbes (VA)................................              X
Mr. King (IA)..................................              X
Mr. Franks (AZ)................................
Mr. Gohmert (TX)...............................
Mr. Jordan (OH)................................              X
Mr. Poe (TX)...................................
Mr. Chaffetz (UT)..............................
Mr. Marino (PA)................................              X
Mr. Gowdy (SC).................................              X
Mr. Amodei (NV)................................
Mr. Labrador (ID)..............................              X
Ms. Farenthold (TX)............................              X
Mr. Holding (NC)...............................              X
Mr. Collins (GA)...............................
Mr. DeSantis (FL)..............................              X
Mr. Smith (MO).................................              X

Mr. Conyers, Jr. (MI), Ranking Member..........      X
Mr. Nadler (NY)................................      X
Mr. Scott (VA).................................      X
Mr. Watt (NC)..................................
Ms. Lofgren (CA)...............................
Ms. Jackson Lee (TX)...........................      X
Mr. Cohen (TN).................................
Mr. Johnson (GA)...............................
Mr. Pierluisi (PR).............................      X
Ms. Chu (CA)...................................      X
Mr. Deutch (FL)................................
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Ms. DelBene (WA)...............................      X
Mr. Garcia (FL)................................      X
Mr. Jeffries (NY)..............................
                                                ------------------------
    Total......................................      8      16
------------------------------------------------------------------------

    4. The bill was reported favorably by a rollcall vote of 
18-9.

                             ROLLCALL NO. 4
------------------------------------------------------------------------
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................      X
Mr. Sensenbrenner, Jr. (WI)....................      X
Mr. Coble (NC).................................      X
Mr. Smith (TX).................................      X
Mr. Chabot (OH)................................      X
Mr. Bachus (AL)................................      X
Mr. Issa (CA)..................................
Mr. Forbes (VA)................................      X
Mr. King (IA)..................................      X
Mr. Franks (AZ)................................      X
Mr. Gohmert (TX)...............................      X
Mr. Jordan (OH)................................      X
Mr. Poe (TX)...................................
Mr. Chaffetz (UT)..............................
Mr. Marino (PA)................................      X
Mr. Gowdy (SC).................................      X
Mr. Amodei (NV)................................
Mr. Labrador (ID)..............................      X
Ms. Farenthold (TX)............................      X
Mr. Holding (NC)...............................      X
Mr. Collins (GA)...............................
Mr. DeSantis (FL)..............................      X
Mr. Smith (MO).................................      X

Mr. Conyers, Jr. (MI), Ranking Member..........              X
Mr. Nadler (NY)................................              X
Mr. Scott (VA).................................              X
Mr. Watt (NC)..................................
Ms. Lofgren (CA)...............................
Ms. Jackson Lee (TX)...........................              X
Mr. Cohen (TN).................................
Mr. Johnson (GA)...............................              X
Mr. Pierluisi (PR).............................              X
Ms. Chu (CA)...................................              X
Mr. Deutch (FL)................................
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Ms. DelBene (WA)...............................              X
Mr. Garcia (FL)................................              X
Mr. Jeffries (NY)..............................
                                                ------------------------
    Total......................................     18       9
------------------------------------------------------------------------

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee advises that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives is inapplicable because this legislation does 
not provide new budgetary authority or increased tax 
expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the bill, H.R. 2641, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                   Washington, DC, August 23, 2013.
Hon. Bob Goodlatte, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 2641, the 
``Responsibility and Professionally Invigorating Development 
Act of 2013.''
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Susanne S. 
Mehlman, who can be reached at 226-2860.
            Sincerely,
                                      Douglas W. Elmendorf,
                                                  Director.

Enclosure

cc:
        Honorable John Conyers, Jr.
        Ranking Member




 H.R. 2641--Responsibility and Professionally Invigorating Development 
                              Act of 2013.

      As ordered reported by the House Committee on the Judiciary 
                           on July 31, 2013.




                                SUMMARY

    H.R. 2641 would amend the Administrative Procedures Act, 
the law that governs how Federal agencies propose and establish 
regulations. Specifically, the bill would aim to expedite the 
review process required by the National Environmental Policy 
Act (NEPA) for construction projects that are partly or fully 
financed with Federal funds or require permits or approvals 
from Federal regulatory agencies.
    CBO estimates that implementing this legislation would cost 
$5 million over the next 5 years, assuming the availability of 
appropriated funds, as Federal agencies would incur additional 
administrative costs to meet the new requirements imposed by 
H.R. 2641. Additional Federal expenditures also would occur if 
agencies face legal challenges as a result of the bill's 
implementation. Over time, we expect that the bill could reduce 
the time needed to commence and complete some construction 
projects financed with Federal funds. Expediting the time 
required to start such projects would generally reduce the 
total costs to complete them, but CBO has no basis for 
estimating the timing or magnitude of such savings.
    Enacting H.R. 2641 would not affect direct spending or 
revenues; therefore, pay-as-you-go procedures do not apply.
    H.R. 2641 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act (UMRA).

                            MAJOR PROVISIONS

    Under NEPA, Federal agencies are required to assess the 
environmental consequences of certain actions and their 
alternatives before proceeding. The affected Federal agencies 
are required to consult with other interested agencies, 
document analyses, and make this information available for 
public comment prior to implementing a proposal. Most 
construction projects that are partially or fully financed by 
the Federal Government require a NEPA review; in those cases, a 
permit or regulatory decision by a Federal agency may also be 
necessary. In addition, if Federal agencies must issue permits 
or regulatory decisions before certain privately funded 
construction projects can proceed, then a NEPA review may also 
be required.
    The bill's major provisions would:

        
 LAuthorize sponsors of private construction 
        projects to prepare environmental reviews for NEPA 
        purposes as long as they are later reviewed and 
        approved by the Federal agency leading those reviews;

        
 LRequire agencies to join a multiagency 
        process for NEPA reviews as participants or be 
        precluded from commenting on or opposing a construction 
        project at a later time;

        
 LAllow the lead Federal agency to use 
        environmental reviews that were conducted for other 
        projects in close proximity to a proposed construction 
        project if the projects are expected to have similar 
        effects on the environment;

        
 LSpecify which type of alternatives should be 
        considered during the NEPA review process;

        
 LImpose strict deadlines on various stages of 
        the NEPA review process, including a 2-year deadline 
        for completing Environmental Impact Statements and 
        issuing a Record of Decision; and

        
 LEstablish a 180-day deadline to file a 
        lawsuit challenging a NEPA review process.

       COSTS FOR FEDERAL AGENCIES TO IMPLEMENT EXPEDITED REVIEWS

    All Federal agencies have a responsibility to implement 
NEPA; however, most Federal construction projects are sponsored 
by:

        
 LThe Department of Transportation (which 
        spends about $50 billion annually on highway and 
        transit related construction projects);

        
 LThe Department of Defense (which spends 
        roughly $15 billion a year for construction); and

        
 LThe Army Corps of Engineers (the Corps) 
        (which spends about $2 billion annually on civilian 
        construction projects).

    The NEPA review process may also be required when private 
entities need to obtain a Federal permit to construct a 
project. Federal agencies that have a major role in regulating 
and overseeing the permit process for such projects include: 
the Federal Energy Regulatory Commission, the Nuclear 
Regulatory Commission, the Corps, the Bureau of Land 
Management, and the Forest Service.
    This legislation would codify many existing practices in 
use by DOT and other agencies when conducting NEPA reviews, but 
it also would impose some new requirements. CBO expects that 
some Federal agencies would issue new regulations and 
guidelines to meet the new requirements and deadlines imposed 
by this bill and, consequently, would be required to devote 
more personnel and technical resources to implementing the 
bill. For example, when DOT implemented similar NEPA 
requirements under the Safe, Accountable, Flexible, Efficient 
Transportation Equity Act (SAFE TEA-LU), the agency spent about 
$1 million to establish new regulations, issue guidance, and 
establish new review processes. Based on information from 
several Federal agencies and regulatory experts, CBO estimates 
that additional discretionary funding would be required over 
the next several years by Federal agencies. Assuming that the 
level of effort required under the bill would be similar to 
that experienced by DOT under SAFE TEA-LU, CBO estimates that 
implementing the bill's requirements would cost $5 million over 
the next 5 years, subject to the availability of appropriated 
funds.

                            LITIGATION COSTS

    According to the Congressional Research Service, specific 
actions and procedures taken by Federal agencies to comply with 
NEPA have evolved over many years following considerable 
litigation, and Federal courts have played a prominent role in 
interpreting and enforcing NEPA's requirements. Although this 
legislation would impose some restrictions that would seek to 
limit the number of NEPA claims filed against Federal agencies, 
several agencies indicated to CBO that some new litigation 
would likely occur under this bill. Given the history of 
litigation associated with the NEPA process and the fact that 
H.R. 2641 would affect that process by amending the 
Administrative Procedures Act and not the underlying law, CBO 
expects that agencies would face increased litigation costs 
following enactment of the bill as stakeholders seek 
clarification of the new law's requirements or challenge an 
agency's compliance with those requirements. CBO has no basis 
for estimating the level of spending that would occur, however.

                 COST OF FEDERAL CONSTRUCTION PROJECTS

    H.R. 2641 also could affect Federal spending for 
construction projects, but CBO has no basis for estimating the 
timing or magnitude of such impacts. On the one hand, 
implementing H.R. 2641 could successfully streamline the NEPA 
review process, accelerating the time line for completing 
Federal construction projects. Over the long term, Federal 
agencies would realize efficiencies and ultimately savings in 
construction and administrative costs from such efficiencies. 
On the other hand, if enacting this legislation leads to short-
term delays in completing Federal construction projects over 
the next 5 years because of increased litigation, those 
efficiencies would not be gained immediately.

              INTERGOVERNMENTAL AND PRIVATE-SECTOR IMPACT

    H.R. 2641 contains no intergovernmental or private-sector 
mandates as defined in UMRA.

                         ESTIMATE PREPARED BY:

Federal Costs: Susanne S. Mehlmann
Impact on State, Local, and Tribal Governments: Melissa Merrell
Impact on the Private Sector: Paige Piper/Bach

                         ESTIMATE APPROVED BY:

Theresa Gullo
Deputy Assistant Director for Budget Analysis

                    Duplication of Federal Programs

    No provision of H.R. 2641 establishes or reauthorizes a 
program of the Federal Government known to be duplicative of 
another Federal program, a program that was included in any 
report from the Government Accountability Office to Congress 
pursuant to section 21 of Public Law 111-139, or a program 
related to a program identified in the most recent Catalog of 
Federal Domestic Assistance.

                  Disclosure of Directed Rule Makings

    The Committee estimates that H.R. 2641 specifically directs 
the Council on Environmental Quality and related Federal 
agencies to conduct two rule making proceedings within the 
meaning of 5 U.S.C. 551.

                    Performance Goals and Objectives

    The Committee states that pursuant to clause 3(c)(4) of 
rule XIII of the Rules of the House of Representatives, H.R. 
2641 fosters job creation and economic growth by amending the 
Administrative Procedure Act to establish a more streamlined 
and transparent Federal permitting process for construction 
projects.

                          Advisory on Earmarks

    In accordance with clause 9 of rule XXI of the Rules of the 
House of Representatives, H.R. 2641 does not contain any 
congressional earmarks, limited tax benefits, or limited tariff 
benefits as defined in clause 9(e), 9(f), or 9(g) of Rule XXI.

                      Section-by-Section Analysis

    The following discussion describes the bill as reported by 
the Committee.
Sec. 1. Short Title.
    Section 1 sets forth the short title of the bill as the 
``Responsibly And Professionally Invigorating Development Act 
of 2013'' or as the ``RAPID Act.''
Sec. 2. Coordination of Agency Administrative Operations for Efficient 
        Decisionmaking.
    Section 2 adds a new subchapter to title 5 of the U.S. Code 
to address permit streamlining, makes associated technical 
amendments to the U.S. Code, and requires Council on 
Environmental Quality to promulgate regulations to implement 
the RAPID Act.
    Subsec. 2(a) adds a new Section 560 to title 5 to effect 
the RAPID Act's principal reforms. Under its terms, new sec. 
560(a) declares that the purpose of the Bill is to establish a 
framework to increase efficiency in the Federal permitting 
process. Because the Administrative Procedure Act coordinates 
agency action in other respects, it is fitting that it also 
should coordinate agency permitting decisions, a major 
component of which is the environmental review process.
    Subsection 560(b) contains definitions of terms used in the 
Bill, drawing upon NEPA regulations.
    Subsection 560(c) allows a project sponsor to prepare any 
environmental document required by NEPA, at the request and 
with the oversight and approval of the lead agency.
    Subsection 560(d) states that only one EIS and one EA (not 
including supplemental and court-ordered environmental 
documents) may be prepared under NEPA for a project, to be used 
by all Federal agencies. To maximize efficiency, lead agencies 
may choose to use existing, relevant data from similar 
environmental reviews. The lead agency may adopt an existing 
environmental study document that already has been prepared 
under state law that meets the requirements of NEPA. A lead 
agency also may prepare and publish a supplement to an existing 
state environmental study document, and its record of decision 
or finding of no significant impact should be based upon this 
environmental study document and any supplements. A lead agency 
may adopt environmental documents for a similar nearby project 
within the last 5 years.
    Subsection 560(e) provides that a lead agency is 
responsible for inviting and designating participating 
agencies. The lead agency designates as a participating agency 
any Federal agency that will adopt the resulting environmental 
study document; the designated agency can only decline the 
designation in writing. The lead agency must invite to be a 
participating agency any other agencies ``that may have an 
interest in the project, including, where appropriate, 
Governors of affected states.'' Consistent with current NEPA 
practice, tribal and local governments, including counties, 
also may become participating agencies in the environmental 
review process. If the agency does not respond in writing in 30 
days to the lead agency's invitation, then the invitation is 
declined. If an agency declines the lead agency's designation 
or invitation, then it is precluded from participating in the 
environmental review or taking any measures to oppose any 
permit, license or approval related to the project. A 
participating agency also may be designated as a cooperating 
agency, using the definition given to this term in the NEPA 
regulations as an agency with a particularly strong 
jurisdictional interest or expertise in the review. Subsection 
(e) requires the participating agencies to contribute to the 
environmental document concurrently, pursuant to regulations 
issued by CEQ, and to limit comments to their own areas of 
jurisdiction and authority.
    Subsection 560(f) directs the project sponsor to notify the 
responsible Federal agency of the project's initiation, so it 
can identify and promptly notify the lead agency. The lead 
agency should initiate the environmental review within 45 days, 
by inviting and designating the participating agencies.
    Subsection 560(g) requires the lead agency and the 
cooperating agencies to begin the scoping process ``as early as 
practicable.'' The lead agency ultimately is responsible for 
determining the range of alternatives to be evaluated. When 
making a decision under the project, no agency should evaluate 
an alternative that was not evaluated in the environmental 
study document. Cooperating agencies should only evaluate those 
alternatives that are ``technically and economically feasible'' 
for the project sponsor to undertake, and the methodologies 
should be developed collaboratively between the lead and 
cooperating agencies and published in the environmental 
document. An alternative that does not meet the project's 
purpose and need should not be evaluated. The lead agency may 
give a greater degree of analysis to a preferred alternative, 
and the analysis of each alternative shall include its 
potential effects on employment.
    Under Subsection 560(h), the lead agency is responsible for 
coordinating public and agency involvement in the review 
process and for making a schedule to complete the entire review 
process within the applicable timeframe, considering the 
particular factors given in the Bill. The lead agency should 
disregard untimely contributions made by participating 
agencies. If a participating agency does not object in writing 
to a lead agency decision, finding or request for concurrence 
in the document, then the participating agency shall be deemed 
to have concurred. As the review proceeds, the lead agency may 
lengthen the schedule for good cause, or shorten it with the 
concurrence of the cooperating agencies. The schedule must be 
given to the participating agencies and project sponsor within 
15 days and made publicly available.
    Subsection 560(i)(1)-(3) set reasonable deadlines to 
complete the environmental review. The lead agency must 
complete a review that requires an EA within 1 year, with a 6-
month extension allowed for good cause or by agreement of the 
lead agency, project sponsor and all participating agencies. An 
EIS must be completed within 2 years, with a 1-year extension 
allowed for good cause or by agreement among the lead agency, 
project sponsor and all participating agencies. Thus, for a 
project requiring both an EA and an EIS, the entire 
environmental review process should not take more than four-
and-a-half years, with maximum extensions granted. All comments 
on a draft EIS must be made within 60 days, and on other 
documents within 30 days; extensions on these deadlines are 
allowed by agreement among the lead agency, all participating 
agencies, and the project sponsor, or for good cause in the 
lead agency's judgment.
    Subsection 560(i)(4) sets reasonable deadlines for agencies 
to make permitting decisions. These timelines do not begin to 
run until all relevant agency review on the project--including 
the environmental review, per the applicable deadlines 
established by Subsection (i)(1)--is complete. Thus, no permit 
would ever be issued, by default or otherwise, until the 
relevant agency review and analysis has been performed. If the 
decision must be made before the record of decision is 
published, then the agency has 90 days beginning after all 
other relevant agency review related to the project is complete 
and after the lead agency publishes the final environmental 
impact statement, to make the decision, finding or approval. 
Otherwise, the agency has 180 days beginning after all other 
relevant agency review related to the project is complete and 
after the record of decision is published to make the decision, 
finding or approval, with extensions not to exceed 1 year from 
when the record of decision was published. If the agency does 
not decide within these timeframes, then the project or permit 
is deemed approved. The default approval is not appealable 
within the agency, and the mere fact that an approval was 
obtained by default cannot be used to support an APA lawsuit 
challenging the permitting decision as arbitrary, capricious, 
an abuse of discretion, or otherwise not in accordance with 
law, or unsupported by substantial evidence. A default approval 
still could be challenged under the APA on other grounds, 
however.
    Subsection 560(j) generally requires the lead agency and 
participating agencies to work cooperatively to identify 
relevant issues; new issues should not be raised when it is too 
late to analyze them properly. The CEQ retains its traditional 
power to mediate disputes among agencies regarding issues that 
could delay completion of the environmental review.
    Subsection (k) increases transparency by requiring each 
agency to report annually to Congress regarding its compliance 
with NEPA.
    Subsection 560(l) applies to claims against an agency 
decision that are predicated on an alleged defect in the NEPA 
process. Only persons or entities that commented on the 
environmental review document (if an opportunity for comment 
was provided) may challenge that document in court, and all 
claims must be brought within 180 days after the final decision 
is published. Filing a supplemental EIS begins the 180-day 
statute of limitations anew, but a lawsuit brought within that 
new statute of limitations can only challenge the supplemental 
EIS. Subsection (l) neither creates a right to judicial review 
nor limits the right to claim a violation of the terms of a 
permit, license or approval.
    Subsection 560(m) allows the Bill's process to apply to 
individual projects or to categories of projects.
    Subsections 560 (n) and (o) provide that the Bill applies 
only prospectively, not retroactively, to all covered projects 
for which an agency is required to undertake an environmental 
review or to make a decision that is based upon an 
environmental review.
    Subsec. 2(b). Makes technical amendments to the U.S. Code.
    Subsec. 2(c). Requires the CEQ to issue implementing 
regulations within 180 days of enactment, and agencies to amend 
their regulations within 120 days thereafter.

         Changes in Existing Law Made by the Bill, as Reported

      In compliance with clause 3(e) of rule XIII of the Rules 
of the House of Representatives, changes in existing law made 
by the bill, as reported, are shown as follows (new matter is 
printed in italics and existing law in which no change is 
proposed is shown in roman):

                      TITLE 5, UNITED STATES CODE



           *       *       *       *       *       *       *
PART I--THE AGENCIES GENERALLY

           *       *       *       *       *       *       *


                  CHAPTER 5--ADMINISTRATIVE PROCEDURE

                    SUBCHAPTER I--GENERAL PROVISIONS

Sec.
500. Administrative practice; general provisions.
     * * * * * * *

      SUBCHAPTER IIA--INTERAGENCY COORDINATION REGARDING PERMITTING

560. Coordination of agency administrative operations for efficient 
          decisionmaking.

           *       *       *       *       *       *       *


     SUBCHAPTER IIA--INTERAGENCY COORDINATION REGARDING PERMITTING

Sec. 560. Coordination of agency administrative operations for 
                    efficient decisionmaking

    (a) Congressional Declaration of Purpose.--The purpose of 
this subchapter is to establish a framework and procedures to 
streamline, increase the efficiency of, and enhance 
coordination of agency administration of the regulatory review, 
environmental decisionmaking, and permitting process for 
projects undertaken, reviewed, or funded by Federal agencies. 
This subchapter will ensure that agencies administer the 
regulatory process in a manner that is efficient so that 
citizens are not burdened with regulatory excuses and time 
delays.
    (b) Definitions.--For purposes of this subchapter, the 
term--
            (1) ``agency'' means any agency, department, or 
        other unit of Federal, State, local, or Indian tribal 
        government;
            (2) ``category of projects'' means 2 or more 
        projects related by project type, potential 
        environmental impacts, geographic location, or another 
        similar project feature or characteristic;
            (3) ``environmental assessment'' means a concise 
        public document for which a Federal agency is 
        responsible that serves to--
                    (A) briefly provide sufficient evidence and 
                analysis for determining whether to prepare an 
                environmental impact statement or a finding of 
                no significant impact;
                    (B) aid an agency's compliance with NEPA 
                when no environmental impact statement is 
                necessary; and
                    (C) facilitate preparation of an 
                environmental impact statement when one is 
                necessary;
            (4) ``environmental impact statement'' means the 
        detailed statement of significant environmental impacts 
        required to be prepared under NEPA;
            (5) ``environmental review'' means the Federal 
        agency procedures for preparing an environmental impact 
        statement, environmental assessment, categorical 
        exclusion, or other document under NEPA;
            (6) ``environmental decisionmaking process'' means 
        the Federal agency procedures for undertaking and 
        completion of any environmental permit, decision, 
        approval, review, or study under any Federal law other 
        than NEPA for a project subject to an environmental 
        review;
            (7) ``environmental document'' means an 
        environmental assessment or environmental impact 
        statement, and includes any supplemental document or 
        document prepared pursuant to a court order;
            (8) ``finding of no significant impact'' means a 
        document by a Federal agency briefly presenting the 
        reasons why a project, not otherwise subject to a 
        categorical exclusion, will not have a significant 
        effect on the human environment and for which an 
        environmental impact statement therefore will not be 
        prepared;
            (9) ``lead agency'' means the Federal agency 
        preparing or responsible for preparing the 
        environmental document;
            (10) ``NEPA'' means the National Environmental 
        Policy Act of 1969 (42 U.S.C. 4321 et seq.);
            (11) ``project'' means major Federal actions that 
        are construction activities undertaken with Federal 
        funds or that are construction activities that require 
        approval by a permit or regulatory decision issued by a 
        Federal agency;
            (12) ``project sponsor'' means the agency or other 
        entity, including any private or public-private entity, 
        that seeks approval for a project or is otherwise 
        responsible for undertaking a project; and
            (13) ``record of decision'' means a document 
        prepared by a lead agency under NEPA following an 
        environmental impact statement that states the lead 
        agency's decision, identifies the alternatives 
        considered by the agency in reaching its decision and 
        states whether all practicable means to avoid or 
        minimize environmental harm from the alternative 
        selected have been adopted, and if not, why they were 
        not adopted.
    (c) Preparation of Environmental Documents.--Upon the 
request of the lead agency, the project sponsor shall be 
authorized to prepare any document for purposes of an 
environmental review required in support of any project or 
approval by the lead agency if the lead agency furnishes 
oversight in such preparation and independently evaluates such 
document and the document is approved and adopted by the lead 
agency prior to taking any action or making any approval based 
on such document.
    (d) Adoption and Use of Documents.--
            (1) Documents prepared under nepa.--
                    (A) Not more than 1 environmental impact 
                statement and 1 environmental assessment shall 
                be prepared under NEPA for a project (except 
                for supplemental environmental documents 
                prepared under NEPA or environmental documents 
                prepared pursuant to a court order), and, 
                except as otherwise provided by law, the lead 
                agency shall prepare the environmental impact 
                statement or environmental assessment. After 
                the lead agency issues a record of decision, no 
                Federal agency responsible for making any 
                approval for that project may rely on a 
                document other than the environmental document 
                prepared by the lead agency.
                    (B) Upon the request of a project sponsor, 
                a lead agency may adopt, use, or rely upon 
                secondary and cumulative impact analyses 
                included in any environmental document prepared 
                under NEPA for projects in the same geographic 
                area where the secondary and cumulative impact 
                analyses provide information and data that 
                pertains to the NEPA decision for the project 
                under review.
            (2) State environmental documents; supplemental 
        documents.--
                    (A) Upon the request of a project sponsor, 
                a lead agency may adopt a document that has 
                been prepared for a project under State laws 
                and procedures as the environmental impact 
                statement or environmental assessment for the 
                project, provided that the State laws and 
                procedures under which the document was 
                prepared provide environmental protection and 
                opportunities for public involvement that are 
                substantially equivalent to NEPA.
                    (B) An environmental document adopted under 
                subparagraph (A) is deemed to satisfy the lead 
                agency's obligation under NEPA to prepare an 
                environmental impact statement or environmental 
                assessment.
                    (C) In the case of a document described in 
                subparagraph (A), during the period after 
                preparation of the document but before its 
                adoption by the lead agency, the lead agency 
                shall prepare and publish a supplement to that 
                document if the lead agency determines that--
                            (i) a significant change has been 
                        made to the project that is relevant 
                        for purposes of environmental review of 
                        the project; or
                            (ii) there have been significant 
                        changes in circumstances or 
                        availability of information relevant to 
                        the environmental review for the 
                        project.
                    (D) If the agency prepares and publishes a 
                supplemental document under subparagraph (C), 
                the lead agency may solicit comments from 
                agencies and the public on the supplemental 
                document for a period of not more than 45 days 
                beginning on the date of the publication of the 
                supplement.
                    (E) A lead agency shall issue its record of 
                decision or finding of no significant impact, 
                as appropriate, based upon the document adopted 
                under subparagraph (A), and any supplements 
                thereto.
            (3) Contemporaneous projects.--If the lead agency 
        determines that there is a reasonable likelihood that 
        the project will have similar environmental impacts as 
        a similar project in geographical proximity to the 
        project, and that similar project was subject to 
        environmental review or similar State procedures within 
        the 5-year period immediately preceding the date that 
        the lead agency makes that determination, the lead 
        agency may adopt the environmental document that 
        resulted from that environmental review or similar 
        State procedure. The lead agency may adopt such an 
        environmental document, if it is prepared under State 
        laws and procedures only upon making a favorable 
        determination on such environmental document pursuant 
        to paragraph (2)(A).
    (e) Participating Agencies.--
            (1) In general.--The lead agency shall be 
        responsible for inviting and designating participating 
        agencies in accordance with this subsection. The lead 
        agency shall provide the invitation or notice of the 
        designation in writing.
            (2) Federal participating agencies.--Any Federal 
        agency that is required to adopt the environmental 
        document of the lead agency for a project shall be 
        designated as a participating agency and shall 
        collaborate on the preparation of the environmental 
        document, unless the Federal agency informs the lead 
        agency, in writing, by a time specified by the lead 
        agency in the designation of the Federal agency that 
        the Federal agency--
                    (A) has no jurisdiction or authority with 
                respect to the project;
                    (B) has no expertise or information 
                relevant to the project; and
                    (C) does not intend to submit comments on 
                the project.
            (3) Invitation.--The lead agency shall identify, as 
        early as practicable in the environmental review for a 
        project, any agencies other than an agency described in 
        paragraph (2) that may have an interest in the project, 
        including, where appropriate, Governors of affected 
        States, and heads of appropriate tribal and local 
        (including county) governments, and shall invite such 
        identified agencies and officials to become 
        participating agencies in the environmental review for 
        the project. The invitation shall set a deadline of 30 
        days for responses to be submitted, which may only be 
        extended by the lead agency for good cause shown. Any 
        agency that fails to respond prior to the deadline 
        shall be deemed to have declined the invitation.
            (4) Effect of declining participating agency 
        invitation.--Any agency that declines a designation or 
        invitation by the lead agency to be a participating 
        agency shall be precluded from submitting comments on 
        any document prepared under NEPA for that project or 
        taking any measures to oppose, based on the 
        environmental review, any permit, license, or approval 
        related to that project.
            (5) Effect of designation.--Designation as a 
        participating agency under this subsection does not 
        imply that the participating agency--
                    (A) supports a proposed project; or
                    (B) has any jurisdiction over, or special 
                expertise with respect to evaluation of, the 
                project.
            (6) Cooperating agency.--A participating agency may 
        also be designated by a lead agency as a ``cooperating 
        agency'' under the regulations contained in part 1500 
        of title 40, Code of Federal Regulations, as in effect 
        on January 1, 2011. Designation as a cooperating agency 
        shall have no effect on designation as participating 
        agency. No agency that is not a participating agency 
        may be designated as a cooperating agency.
            (7) Concurrent reviews.--Each Federal agency 
        shall--
                    (A) carry out obligations of the Federal 
                agency under other applicable law concurrently 
                and in conjunction with the review required 
                under NEPA; and
                    (B) in accordance with the rules made by 
                the Council on Environmental Quality pursuant 
                to subsection (n)(1), make and carry out such 
                rules, policies, and procedures as may be 
                reasonably necessary to enable the agency to 
                ensure completion of the environmental review 
                and environmental decisionmaking process in a 
                timely, coordinated, and environmentally 
                responsible manner.
            (8) Comments.--Each participating agency shall 
        limit its comments on a project to areas that are 
        within the authority and expertise of such 
        participating agency. Each participating agency shall 
        identify in such comments the statutory authority of 
        the participating agency pertaining to the subject 
        matter of its comments. The lead agency shall not act 
        upon, respond to or include in any document prepared 
        under NEPA, any comment submitted by a participating 
        agency that concerns matters that are outside of the 
        authority and expertise of the commenting participating 
        agency.
    (f) Project Initiation Request.--
            (1) Notice.--A project sponsor shall provide the 
        Federal agency responsible for undertaking a project 
        with notice of the initiation of the project by 
        providing a description of the proposed project, the 
        general location of the proposed project, and a 
        statement of any Federal approvals anticipated to be 
        necessary for the proposed project, for the purpose of 
        informing the Federal agency that the environmental 
        review should be initiated.
            (2) Lead agency initiation.--The agency receiving a 
        project initiation notice under paragraph (1) shall 
        promptly identify the lead agency for the project, and 
        the lead agency shall initiate the environmental review 
        within a period of 45 days after receiving the notice 
        required by paragraph (1) by inviting or designating 
        agencies to become participating agencies, or, where 
        the lead agency determines that no participating 
        agencies are required for the project, by taking such 
        other actions that are reasonable and necessary to 
        initiate the environmental review.
    (g) Alternatives Analysis.--
            (1) Participation.--As early as practicable during 
        the environmental review, but no later than during 
        scoping for a project requiring the preparation of an 
        environmental impact statement, the lead agency shall 
        provide an opportunity for involvement by cooperating 
        agencies in determining the range of alternatives to be 
        considered for a project.
            (2) Range of alternatives.--Following participation 
        under paragraph (1), the lead agency shall determine 
        the range of alternatives for consideration in any 
        document which the lead agency is responsible for 
        preparing for the project, subject to the following 
        limitations:
                    (A) No evaluation of certain 
                alternatives.--No Federal agency shall evaluate 
                any alternative that was identified but not 
                carried forward for detailed evaluation in an 
                environmental document or evaluated and not 
                selected in any environmental document prepared 
                under NEPA for the same project.
                    (B) Only feasible alternatives evaluated.--
                Where a project is being constructed, managed, 
                funded, or undertaken by a project sponsor that 
                is not a Federal agency, Federal agencies shall 
                only be required to evaluate alternatives that 
                the project sponsor could feasibly undertake, 
                consistent with the purpose of and the need for 
                the project, including alternatives that can be 
                undertaken by the project sponsor and that are 
                technically and economically feasible.
            (3) Methodologies.--
                    (A) In general.--The lead agency shall 
                determine, in collaboration with cooperating 
                agencies at appropriate times during the 
                environmental review, the methodologies to be 
                used and the level of detail required in the 
                analysis of each alternative for a project. The 
                lead agency shall include in the environmental 
                document a description of the methodologies 
                used and how the methodologies were selected.
                    (B) No evaluation of inappropriate 
                alternatives.--When a lead agency determines 
                that an alternative does not meet the purpose 
                and need for a project, that alternative is not 
                required to be evaluated in detail in an 
                environmental document.
            (4) Preferred alternative.--At the discretion of 
        the lead agency, the preferred alternative for a 
        project, after being identified, may be developed to a 
        higher level of detail than other alternatives in order 
        to facilitate the development of mitigation measures or 
        concurrent compliance with other applicable laws if the 
        lead agency determines that the development of such 
        higher level of detail will not prevent the lead agency 
        from making an impartial decision as to whether to 
        accept another alternative which is being considered in 
        the environmental review.
            (5) Employment analysis.--The evaluation of each 
        alternative in an environmental impact statement or an 
        environmental assessment shall identify the potential 
        effects of the alternative on employment, including 
        potential short-term and long-term employment increases 
        and reductions and shifts in employment.
    (h) Coordination and Scheduling.--
            (1) Coordination plan.--
                    (A) In general.--The lead agency shall 
                establish and implement a plan for coordinating 
                public and agency participation in and comment 
                on the environmental review for a project or 
                category of projects to facilitate the 
                expeditious resolution of the environmental 
                review.
                    (B) Schedule.--
                            (i) In general.--The lead agency 
                        shall establish as part of the 
                        coordination plan for a project, after 
                        consultation with each participating 
                        agency and, where applicable, the 
                        project sponsor, a schedule for 
                        completion of the environmental review. 
                        The schedule shall include deadlines, 
                        consistent with subsection (i), for 
                        decisions under any other Federal laws 
                        (including the issuance or denial of a 
                        permit or license) relating to the 
                        project that is covered by the 
                        schedule.
                            (ii) Factors for consideration.--In 
                        establishing the schedule, the lead 
                        agency shall consider factors such as--
                                    (I) the responsibilities of 
                                participating agencies under 
                                applicable laws;
                                    (II) resources available to 
                                the participating agencies;
                                    (III) overall size and 
                                complexity of the project;
                                    (IV) overall schedule for 
                                and cost of the project;
                                    (V) the sensitivity of the 
                                natural and historic resources 
                                that could be affected by the 
                                project; and
                                    (VI) the extent to which 
                                similar projects in geographic 
                                proximity were recently subject 
                                to environmental review or 
                                similar State procedures.
                            (iii) Compliance with the 
                        schedule.--
                                    (I) All participating 
                                agencies shall comply with the 
                                time periods established in the 
                                schedule or with any modified 
                                time periods, where the lead 
                                agency modifies the schedule 
                                pursuant to subparagraph (D).
                                    (II) The lead agency shall 
                                disregard and shall not respond 
                                to or include in any document 
                                prepared under NEPA, any 
                                comment or information 
                                submitted or any finding made 
                                by a participating agency that 
                                is outside of the time period 
                                established in the schedule or 
                                modification pursuant to 
                                subparagraph (D) for that 
                                agency's comment, submission or 
                                finding.
                                    (III) If a participating 
                                agency fails to object in 
                                writing to a lead agency 
                                decision, finding or request 
                                for concurrence within the time 
                                period established under law or 
                                by the lead agency, the agency 
                                shall be deemed to have 
                                concurred in the decision, 
                                finding or request.
                    (C) Consistency with other time periods.--A 
                schedule under subparagraph (B) shall be 
                consistent with any other relevant time periods 
                established under Federal law.
                    (D) Modification.--The lead agency may--
                            (i) lengthen a schedule established 
                        under subparagraph (B) for good cause; 
                        and
                            (ii) shorten a schedule only with 
                        the concurrence of the cooperating 
                        agencies.
                    (E) Dissemination.--A copy of a schedule 
                under subparagraph (B), and of any 
                modifications to the schedule, shall be--
                            (i) provided within 15 days of 
                        completion or modification of such 
                        schedule to all participating agencies 
                        and to the project sponsor; and
                            (ii) made available to the public.
                    (F) Roles and responsibility of lead 
                agency.--With respect to the environmental 
                review for any project, the lead agency shall 
                have authority and responsibility to take such 
                actions as are necessary and proper, within the 
                authority of the lead agency, to facilitate the 
                expeditious resolution of the environmental 
                review for the project.
    (i) Deadlines.--The following deadlines shall apply to any 
project subject to review under NEPA and any decision under any 
Federal law relating to such project (including the issuance or 
denial of a permit or license or any required finding):
            (1) Environmental review deadlines.--The lead 
        agency shall complete the environmental review within 
        the following deadlines:
                    (A) Environmental impact statement 
                projects.--For projects requiring preparation 
                of an environmental impact statement--
                            (i) the lead agency shall issue an 
                        environmental impact statement within 2 
                        years after the earlier of the date the 
                        lead agency receives the project 
                        initiation request or a Notice of 
                        Intent to Prepare an Environmental 
                        Impact Statement is published in the 
                        Federal Register; and
                            (ii) in circumstances where the 
                        lead agency has prepared an 
                        environmental assessment and determined 
                        that an environmental impact statement 
                        will be required, the lead agency shall 
                        issue the environmental impact 
                        statement within 2 years after the date 
                        of publication of the Notice of Intent 
                        to Prepare an Environmental Impact 
                        Statement in the Federal Register.
                    (B) Environmental assessment projects.--For 
                projects requiring preparation of an 
                environmental assessment, the lead agency shall 
                issue a finding of no significant impact or 
                publish a Notice of Intent to Prepare an 
                Environmental Impact Statement in the Federal 
                Register within 1 year after the earlier of the 
                date the lead agency receives the project 
                initiation request, makes a decision to prepare 
                an environmental assessment, or sends out 
                participating agency invitations.
            (2) Extensions.--
                    (A) Requirements.--The environmental review 
                deadlines may be extended only if--
                            (i) a different deadline is 
                        established by agreement of the lead 
                        agency, the project sponsor, and all 
                        participating agencies; or
                            (ii) the deadline is extended by 
                        the lead agency for good cause.
                    (B) Limitation.--The environmental review 
                shall not be extended by more than 1 year for a 
                project requiring preparation of an 
                environmental impact statement or by more than 
                180 days for a project requiring preparation of 
                an environmental assessment.
            (3) Environmental review comments.--
                    (A) Comments on draft environmental impact 
                statement.--For comments by agencies and the 
                public on a draft environmental impact 
                statement, the lead agency shall establish a 
                comment period of not more than 60 days after 
                publication in the Federal Register of notice 
                of the date of public availability of such 
                document, unless--
                            (i) a different deadline is 
                        established by agreement of the lead 
                        agency, the project sponsor, and all 
                        participating agencies; or
                            (ii) the deadline is extended by 
                        the lead agency for good cause.
                    (B) Other comments.--For all other comment 
                periods for agency or public comments in the 
                environmental review process, the lead agency 
                shall establish a comment period of no more 
                than 30 days from availability of the materials 
                on which comment is requested, unless--
                            (i) a different deadline is 
                        established by agreement of the lead 
                        agency, the project sponsor, and all 
                        participating agencies; or
                            (ii) the deadline is extended by 
                        the lead agency for good cause.
            (4) Deadlines for decisions under other laws.--
        Notwithstanding any other provision of law, in any case 
        in which a decision under any other Federal law 
        relating to the undertaking of a project being reviewed 
        under NEPA (including the issuance or denial of a 
        permit or license) is required to be made, the 
        following deadlines shall apply:
                    (A) Decisions prior to record of decision 
                or finding of no significant impact.--If a 
                Federal agency is required to approve, or 
                otherwise to act upon, a permit, license, or 
                other similar application for approval related 
                to a project prior to the record of decision or 
                finding of no significant impact, such Federal 
                agency shall approve or otherwise act not later 
                than the end of a 90-day period beginning--
                            (i) after all other relevant agency 
                        review related to the project is 
                        complete; and
                            (ii) after the lead agency 
                        publishes a notice of the availability 
                        of the final environmental impact 
                        statement or issuance of other final 
                        environmental documents, or no later 
                        than such other date that is otherwise 
                        required by law, whichever event occurs 
                        first.
                    (B) Other decisions.--With regard to any 
                approval or other action related to a project 
                by a Federal agency that is not subject to 
                subparagraph (A), each Federal agency shall 
                approve or otherwise act not later than the end 
                of a period of 180 days beginning--
                            (i) after all other relevant agency 
                        review related to the project is 
                        complete; and
                            (ii) after the lead agency issues 
                        the record of decision or finding of no 
                        significant impact, unless a different 
                        deadline is established by agreement of 
                        the Federal agency, lead agency, and 
                        the project sponsor, where applicable, 
                        or the deadline is extended by the 
                        Federal agency for good cause, provided 
                        that such extension shall not extend 
                        beyond a period that is 1 year after 
                        the lead agency issues the record of 
                        decision or finding of no significant 
                        impact.
                    (C) Failure to act.--In the event that any 
                Federal agency fails to approve, or otherwise 
                to act upon, a permit, license, or other 
                similar application for approval related to a 
                project within the applicable deadline 
                described in subparagraph (A) or (B), the 
                permit, license, or other similar application 
                shall be deemed approved by such agency and the 
                agency shall take action in accordance with 
                such approval within 30 days of the applicable 
                deadline described in subparagraph (A) or (B).
                    (D) Final agency action.--Any approval 
                under subparagraph (C) is deemed to be final 
                agency action, and may not be reversed by any 
                agency. In any action under chapter 7 seeking 
                review of such a final agency action, the court 
                may not set aside such agency action by reason 
                of that agency action having occurred under 
                this paragraph.
    (j) Issue Identification and Resolution.--
            (1) Cooperation.--The lead agency and the 
        participating agencies shall work cooperatively in 
        accordance with this section to identify and resolve 
        issues that could delay completion of the environmental 
        review or could result in denial of any approvals 
        required for the project under applicable laws.
            (2) Lead agency responsibilities.--The lead agency 
        shall make information available to the participating 
        agencies as early as practicable in the environmental 
        review regarding the environmental, historic, and 
        socioeconomic resources located within the project area 
        and the general locations of the alternatives under 
        consideration. Such information may be based on 
        existing data sources, including geographic information 
        systems mapping.
            (3) Participating agency responsibilities.--Based 
        on information received from the lead agency, 
        participating agencies shall identify, as early as 
        practicable, any issues of concern regarding the 
        project's potential environmental, historic, or 
        socioeconomic impacts. In this paragraph, issues of 
        concern include any issues that could substantially 
        delay or prevent an agency from granting a permit or 
        other approval that is needed for the project.
            (4) Issue resolution.--
                    (A) Meeting of participating agencies.--At 
                any time upon request of a project sponsor, the 
                lead agency shall promptly convene a meeting 
                with the relevant participating agencies and 
                the project sponsor, to resolve issues that 
                could delay completion of the environmental 
                review or could result in denial of any 
                approvals required for the project under 
                applicable laws.
                    (B) Notice that resolution cannot be 
                achieved.--If a resolution cannot be achieved 
                within 30 days following such a meeting and a 
                determination by the lead agency that all 
                information necessary to resolve the issue has 
                been obtained, the lead agency shall notify the 
                heads of all participating agencies, the 
                project sponsor, and the Council on 
                Environmental Quality for further proceedings 
                in accordance with section 204 of NEPA, and 
                shall publish such notification in the Federal 
                Register.
    (k) Report to Congress.--The head of each Federal agency 
shall report annually to Congress--
            (1) the projects for which the agency initiated 
        preparation of an environmental impact statement or 
        environmental assessment;
            (2) the projects for which the agency issued a 
        record of decision or finding of no significant impact 
        and the length of time it took the agency to complete 
        the environmental review for each such project;
            (3) the filing of any lawsuits against the agency 
        seeking judicial review of a permit, license, or 
        approval issued by the agency for an action subject to 
        NEPA, including the date the complaint was filed, the 
        court in which the complaint was filed, and a summary 
        of the claims for which judicial review was sought; and
            (4) the resolution of any lawsuits against the 
        agency that sought judicial review of a permit, 
        license, or approval issued by the agency for an action 
        subject to NEPA.
    (l) Limitations on Claims.--
            (1) In general.--Notwithstanding any other 
        provision of law, a claim arising under Federal law 
        seeking judicial review of a permit, license, or 
        approval issued by a Federal agency for an action 
        subject to NEPA shall be barred unless--
                    (A) in the case of a claim pertaining to a 
                project for which an environmental review was 
                conducted and an opportunity for comment was 
                provided, the claim is filed by a party that 
                submitted a comment during the environmental 
                review on the issue on which the party seeks 
                judicial review, and such comment was 
                sufficiently detailed to put the lead agency on 
                notice of the issue upon which the party seeks 
                judicial review; and
                    (B) filed within 180 days after publication 
                of a notice in the Federal Register announcing 
                that the permit, license, or approval is final 
                pursuant to the law under which the agency 
                action is taken, unless a shorter time is 
                specified in the Federal law pursuant to which 
                judicial review is allowed.
            (2) New information.--The preparation of a 
        supplemental environmental impact statement, when 
        required, is deemed a separate final agency action and 
        the deadline for filing a claim for judicial review of 
        such action shall be 180 days after the date of 
        publication of a notice in the Federal Register 
        announcing the record of decision for such action. Any 
        claim challenging agency action on the basis of 
        information in a supplemental environmental impact 
        statement shall be limited to challenges on the basis 
        of that information.
            (3) Rule of construction.--Nothing in this 
        subsection shall be construed to create a right to 
        judicial review or place any limit on filing a claim 
        that a person has violated the terms of a permit, 
        license, or approval.
    (m) Categories of Projects.--The authorities granted under 
this subchapter may be exercised for an individual project or a 
category of projects.
    (n) Effective Date.--The requirements of this subchapter 
shall apply only to environmental reviews and environmental 
decisionmaking processes initiated after the date of enactment 
of this subchapter.
    (o) Applicability.--Except as provided in subsection (p), 
this subchapter applies, according to the provisions thereof, 
to all projects for which a Federal agency is required to 
undertake an environmental review or make a decision under an 
environmental law for a project for which a Federal agency is 
undertaking an environmental review.
    (p) Savings Clause.--Nothing in this section shall be 
construed to supersede, amend, or modify sections 134, 135, 
139, 325, 326, and 327 of title 23, United States Code, 
sections 5303 and 5304 of title 49, United States Code or 
subtitle C of title I of division A of the Moving Ahead for 
Progress in the 21st Century Act and the amendments made by 
such subtitle (Public Law 112-141).

           *       *       *       *       *       *       *


                            Dissenting Views

    H.R. 2641, the ``Responsibly And Professionally 
Invigorating Development Act of 2013,'' or the ``RAPID Act,'' 
is an ill-conceived effort to force agencies to prioritize 
speed over analysis for congressionally-mandated environmental 
reviews of construction projects that are federally funded or 
that require Federal approval by the issuance of a permit or 
regulatory decision. The bill, which imposes numerous new 
requirements and deadlines that Federal agencies must follow, 
amends the environmental review process under the National 
Environmental Policy Act (NEPA).\1\ The bill is drafted as an 
amendment to the Administrative Procedure Act (APA),\2\ even 
though the APA does not include a single provision concerning 
environmental law.
---------------------------------------------------------------------------
    \1\Pub. L. No. 91-190 (1970), codified at 42 U.S.C. Sec. Sec. 4321 
et seq. (2014).
    \2\5 U.S.C. Sec. 551-59, 701-06, 1305, 3105, 3344, 5372, 7521 
(2014).
---------------------------------------------------------------------------
    Contrary to the bill's contrived title, the RAPID Act will 
lead to more litigation and delay rather than streamlining the 
permit approval process. It will create a parallel universe of 
regulatory requirements that would pertain only to certain 
types of projects, even though NEPA has provided an effective 
framework for more than 40 years for all types of projects that 
require Federal approval pursuant to a Federal law, such as the 
Clean Air Act.\3\ Most importantly, H.R. 2641 will potentially 
shift control of the regulatory approval process from Federal 
agencies that are charged with protecting the health and safety 
of our Nation's citizens to the private sector. It does this by 
skewing the process in favor of project approval and one-size-
fits-all deadlines, while severely truncating the deliberative 
process pursuant to which the environmental consequences of 
proposed projects are considered.
---------------------------------------------------------------------------
    \3\42 U.S.C. Sec. Sec. 7401 et seq. (2014).
---------------------------------------------------------------------------
    Specifically, H.R. 2641: (1) is a solution in search of a 
problem as it attempts to address purported delays in the 
environmental review and permit approval process that have 
nothing to do with NEPA, the law that this bill primarily 
attempts to re-write; (2) creates a parallel environmental 
review process for an ill-defined subset of Federal projects 
that will lead to confusion and spawn litigation that will 
result in further delay; (3) forecloses potentially valuable 
agency and public input and imposes unduly rigid deadlines for 
agency action; (4) institutionalizes a bias in favor of 
approving an agency's preferred alternative; and (5) is a 
thinly veiled effort to amend NEPA, which is not in the 
Committee's jurisdiction, by amending the APA.
    Not surprisingly, the Administration and the Council on 
Environmental Quality strenuously opposed a nearly identical 
version of the RAPID Act in the last Congress.\4\ In issuing 
its veto threat regarding that prior measure, the 
Administration noted that the bill ``would create excessively 
complex permitting processes that would hamper economic 
growth.''\5\ In addition, 25 respected environmental groups, 
including the Audubon Society, League of Conservation Voters, 
Natural Resources Defense Council, Sierra Club, and The 
Wilderness Society, strenuously opposed this measure.\6\
---------------------------------------------------------------------------
    \4\Letter from Nancy H. Sutley, Chair, Council on Environmental 
Quality, Executive Office of the President, to Rep. Howard Coble (R-
NC), Chair, and Rep. Steve Cohen (D-TN), Ranking Member, Subcomm. on 
Courts, Commercial and Administrative Law of the H. Comm. on the 
Judiciary (Apr. 24, 2012) (on file with H. Comm. on the Judiciary 
Democratic staff) (noting that the legislation is ``deeply flawed'' and 
that it ``will undermine the environmental review process'').
    \5\Executive Office of the President--Office of Management and 
Budget, Statement of Administration Policy for H.R. 4078--Regulatory 
Freeze for Jobs Act of 2012, at 1 (July 23, 2012).
    \6\Letter from Carl Wassilie, Yupiaq Biologist, Alaska's Big 
Village Network, et al. to Members of the Subcomm. on Regulatory 
Reform, Commercial and Antitrust Law of the H. Comm. on the Judiciary 
(July 11, 2013) (on file with H. Comm. on the Judiciary Democratic 
staff).
---------------------------------------------------------------------------
    For these reasons and those described below, we 
respectfully dissent and urge our colleagues to reject this 
seriously flawed bill.

                       DESCRIPTION AND BACKGROUND

                              DESCRIPTION

    H.R. 2641 amends the APA to establish an extremely complex 
series of requirements that Federal agencies must adhere to 
with respect to reviewing the environmental impact of 
construction projects that are federally funded or that require 
approval by a Federal agency. Although a detailed section-by-
section explanation of the bill appears later in these views, 
the bill's principal provisions are summarized here. The bill:

        (1) Lauthorizes a project sponsor, upon the request of 
        a lead agency (the agency responsible preparing the 
        environmental document), to prepare any document for 
        environmental review required in support of, or for 
        approval of, such an activity if such agency furnishes 
        oversight and independently evaluates, approves, and 
        adopts such document prior to taking action or making 
        any approval based on such document;

        (2) Ldeems a project to be approved in the event that a 
        Federal agency fails to approve or otherwise act upon a 
        permit, license, or other similar application for 
        approval related to a project within such deadlines, 
        and specifies that such approval to be final agency 
        action that may not be reversed by an agency;

        (3) Lprohibits, after the lead agency issues a record 
        of decision, any Federal agency responsible for making 
        any approval for a project from relying on a document 
        other than the environmental document prepared by the 
        lead agency;

        (4) Lallows the lead agency, upon the request of a 
        project sponsor, to utilize secondary and cumulative 
        impact analyses included in documents prepared under 
        NEPA for projects in the same geographic area if such 
        documents are pertinent to the NEPA decision for the 
        project under review;

        (5) Lauthorizes a lead agency to adopt for a project a 
        state environmental document for a similar project that 
        is in geographical proximity and that was subject to 
        environmental review or similar state procedures within 
        the preceding 5 years if the agency determines that 
        there is a reasonable likelihood that the projects will 
        have similar environmental impacts;

        (6) Lrequires the lead agency to invite and designate 
        as a participating agency in the preparation of an 
        environmental document for a project any Federal agency 
        that is required to adopt such document;

        (7) Lprecludes any agency that declines to participate 
        from submitting comments on such document or taking 
        measures to oppose any permit, license, or approval 
        related to that project based on the environmental 
        review and prohibits the lead agency from acting upon, 
        responding to, or including in any document prepared 
        under NEPA any comment submitted by a participating 
        agency that concerns matters outside of such agency's 
        authority and expertise;

        (8) Limposes a 1-year deadline for issuing a finding of 
        no significant impact or a Notice of Intent to Prepare 
        an environmental impact statement and a 2-year deadline 
        for completing an environmental impact statement for 
        projects that require such analyses; and

        (9) Limposes deadlines for decisions required under any 
        other Federal law relating to the undertaking of a 
        project being reviewed under NEPA.

                               BACKGROUND

    Signed into law by President Richard Nixon in 1970, NEPA 
was enacted to ``declare a national policy which will encourage 
productive and enjoyable harmony between man and his 
environment; to promote efforts which will prevent or eliminate 
damage to the environment and biosphere and stimulate the 
health and welfare of man; [and] to enrich the understanding of 
the ecological systems and natural resources important to the 
Nation[.]''\7\ As a representative on behalf of the Natural 
Resources Defense Council testified at the hearing on H.R. 
2641, NEPA ``protects our health, our homes, and our 
environment.''\8\ For more than 40 years, it has emphasized 
```smart from the start' federal decision making'' through an 
inherently democratic process that empowers ``the public, 
including citizens, local officials, landowners, industry, and 
taxpayers'' to weigh in on these decisions.\9\ In sum, NEPA 
``has saved money, time, lives, historical sites, endangered 
species, and public lands while encouraging compromise and 
cultivating better projects with more public input.''\10\
---------------------------------------------------------------------------
    \7\42 U.S.C. Sec. 4321 (2014).
    \8\The Responsibly And Professionally Invigorating Development Act 
of 2013: Hearing on H.R. 2641 Before the Subcomm. on Regulatory Reform, 
Commercial and Antitrust Law of the H. Comm. on the Judiciary, 113th 
Cong. (2013) (prepared testimony of Scott Slesinger, Legislative 
Director for the Natural Resources Defense Council) [hereinafter H.R. 
2641 Hearing].
    \9\Id.
    \10\Id.
---------------------------------------------------------------------------
    NEPA was one of the first environmental statutes enacted in 
recognition of the importance of the environment and the need 
to have a coordinated regulatory response by Federal agencies 
charged with reviewing proposed undertakings requiring Federal 
funding or approval. Approximately 85 agencies are subject to 
NEPA and must thereby under the Act consider the environmental 
impact of these undertakings and involve the public and other 
agencies. The Act's procedural requirements specify that 
agencies must take a ``hard look,'' but environmental factors 
do not necessarily trump all other considerations. In sum, NEPA 
helps agencies make better decisions.
    In practice, the NEPA process consists of a three-tiered 
evaluation of the environmental effects of a Federal action 
that must be conducted by the lead agency, which is the agency 
that has ultimate authority to prepare the evaluation. The 
first type of evaluation consists of an administrative 
determination by the agency that the proposed action can be 
categorically excluded from a detailed environmental analysis 
if it meets certain criteria previously determined to have no 
significant environmental impact.\11\ Annually, the number of 
these determinations may be in millions as the vast amount of 
undertakings subject to NEPA fall within this category.
---------------------------------------------------------------------------
    \11\42 U.S.C. Sec. 4321 (2014).
---------------------------------------------------------------------------
    If a proposed undertaking cannot be categorically excluded, 
i.e., it has some level of environmental impact, then the 
Federal agency must prepare a written environmental assessment 
(EA) to determine whether or not a Federal action would 
significantly affect the environment. Annually, the number of 
EAs can range from 30,000 to 50,000. Where such action would 
not significantly impact the environment, i.e., a finding of no 
significant impact (FONSI), then the agency issues a FONSI, 
which can include measures that an agency must take to mitigate 
potentially significant impacts.\12\
---------------------------------------------------------------------------
    \12\Id.
---------------------------------------------------------------------------
    Where the proposed action presents significant 
environmental consequences, draft and final environmental 
impact statements (EIS) must be prepared that provide a more 
detailed evaluation of such action and alternatives.\13\ The 
EIS is prepared by an agency (referred to as the ``lead 
agency'') or outside contractor who must file a financial 
disclosure form disclosing any conflicts of interest. Other 
Federal agencies, the public, and outside parties may provide 
input into the preparation of an EIS and then comment on the 
draft EIS when it is completed.\14\ Annually, the number of 
EISs approximate 500.
---------------------------------------------------------------------------
    \13\U.S. Dep't of Environmental Protection, National Environmental 
Policy Act--Basic Information, available at http://www.epa.gov/
compliance/basics/nepa.html (last visited Feb. 18, 2014).
    \14\Id.
---------------------------------------------------------------------------
    An EIS must meet certain specified requirements, including 
the preparation of a purpose and need statement, which provides 
the foundation of the review. The statement must also identify 
all reasonable alternatives to the proposed action that would 
satisfied the need for it. For each alternative, the EIS must 
consider its environmental, socioeconomic, and cumulative 
effect and impact. Other steps that a lead agency must 
undertake include the following:

        
 Lpublication of a public notice of intent,

        
 Lscoping (identification of issues that are 
        important to analyze in the EIS, including interagency 
        concerns),

        
 Lappointing agencies that should participate 
        in the environmental review process,

        
 Lissuing a draft EIS that is then published in 
        the Federal Register with a minimum of a 45-day public 
        review and comment period,

        
 Lresponding to all substantive comments at the 
        end of the comment period,

        
 Lpublishing a 30-day notice of the 
        availability of a final EIS that includes a summary of 
        the comments and responses thereto, and

        
 Lrendering a final decision.

Note that various factors can affect these requirements and 
their timeliness, including delays in funding, changes in 
circumstances, or changes in the state or Federal 
administrations. In addition, there may be a need to publish a 
supplemental EIS. Should there be a dispute, the Council on 
Environmental Quality (CEQ) has a referral process.
    In preparing an environmental review under NEPA, the lead 
agency must consider a host of factors, including the economic 
impact of the undertaking; the proposed action's effect on 
historical preservation efforts; and various environmental 
laws, such as the Endangered Species Act.\15\ Undertakings can 
include an array of agencies, including the U.S. Fish and 
Wildlife Service, National Park Service, U.S. Army Corps of 
Engineers, and the Department of Transportation, which may have 
their own regulations. The lead agency must also consider 
alternatives to the proposed undertaking.
---------------------------------------------------------------------------
    \15\16 U.S.C. Sec. Sec. 1531 et seq. (2014).
---------------------------------------------------------------------------
    As part of this review process, the lead agency seeks 
feedback from cooperating agencies, agencies (such as state, 
local or tribal governmental entities) that are required by law 
to have an interest or that have special expertise in the 
proposed undertaking. Regulations have been promulgated to 
determine who qualifies as a cooperating agency and what such 
agency must do.
    To oversee the implementation of NEPA, the Act established 
the CEQ\16\ within the Executive Office of the President, whose 
members are appointed by the President with the advice and 
consent of the Senate.\17\ The CEQ is charged with: (1) 
analyzing and interpreting ``environmental trends and 
information of all kinds;'' (2) appraising ``programs and 
activities of the Federal Government in the light of the policy 
set forth'' in NEPA; (3) being ``conscious of and responsive to 
the scientific, economic, social, esthetic, and cultural needs 
and interests of the Nation;'' (4) and formulating and 
recommending ``national policies to promote the improvement of 
the quality of the environment.''\18\ NEPA further enumerates 
the CEQ's specific duties.\19\
---------------------------------------------------------------------------
    \16\42 U.S.C. Sec. 4321 (2014).
    \17\42 U.S.C. Sec. 4342 (2014).
    \18\Id.
    \19\NEPA requires the CEQ:

      (1) to assist and advise the President in the preparation 
      of the Environmental Quality Report required by section 
---------------------------------------------------------------------------
      4341 of this title;

      (2) to gather timely and authoritative information 
      concerning the conditions and trends in the quality of the 
      environment both current and prospective, to analyze and 
      interpret such information for the purpose of determining 
      whether such conditions and trends are interfering, or are 
      likely to interfere, with the achievement of the policy set 
      forth in subchapter I of this chapter, and to compile and 
      submit to the President studies relating to such conditions 
      and trends;

      (3) to review and appraise the various programs and 
      activities of the Federal Government in the light of the 
      policy set forth in subchapter I of this chapter for the 
      purpose of determining the extent to which such programs 
      and activities are contributing to the achievement of such 
      policy, and to make recommendations to the President with 
      respect thereto;

      (4) to develop and recommend to the President national 
      policies to foster and promote the improvement of 
      environmental quality to meet the conservation, social, 
      economic, health, and other requirements and goals of the 
      Nation;

      (5) to conduct investigations, studies, surveys, research, 
      and analyses relating to ecological systems and 
      environmental quality;

      (6) to document and define changes in the natural 
      environment, including the plant and animal systems, and to 
      accumulate necessary data and other information for a 
      continuing analysis of these changes or trends and an 
      interpretation of their underlying causes;

      (7) to report at least once each year to the President on 
      the state and condition of the environment; and

      (8) to make and furnish such studies, reports thereon, and 
      recommendations with respect to matters of policy and 
      legislation as the President may request.

42 U.S.C. Sec. 4344 (2014).
    In 1978, the CEQ promulgated regulations to implement NEPA 
that are binding on all Federal agencies.\20\ It has also 
issued guidance ``on various aspects'' of these regulations, 
``including an information document on `Forty Most Asked 
Questions Concerning CEQ's National Environmental Policy Act,' 
Scoping Guidance, and Guidance Regarding NEPA 
Regulations.''\21\ In turn, most Federal agencies have issued 
their own implementing regulations and guidance tailored to 
such agencies' specific mission and activities.\22\
---------------------------------------------------------------------------
    \20\40 CFR Parts 1500-15081 (2014).
    \21\U.S. Dep't of Environmental Protection, National Environmental 
Policy Act--Basic Information, available at http://www.epa.gov/
compliance/basics/nepa.html (last visited Feb, 18, 2014).
    \22\Id.
---------------------------------------------------------------------------
    From time to time, the CEQ has issued guidance for Federal 
agencies to clarify the requirements of NEPA and CEQ's 
regulations.\23\ For example, the CEQ issued guidance in 2012 
consisting of a series of principles intended to improve the 
process for preparing efficient and timely environmental 
reviews under NEPA.\24\ These principles include the following 
exhortations:
---------------------------------------------------------------------------
    \23\Memorandum from Nancy H. Sutley, Chair, Council on 
Environmental Quality, Executive Office of the President, to heads of 
Federal departments and agencies, at 2 (Mar. 6, 2012).
    \24\Id.

        (1) Lenvironmental reviews should be concise and 
        ``written in plain language;''\25\
---------------------------------------------------------------------------
    \25\Id. at 5-6.

        (2) Lagencies should integrate NEPA early in their 
        internal processes for developing a proposed policy, 
        program, management plan, or project;\26\
---------------------------------------------------------------------------
    \26\Id. at 6-8

        (3) Lagencies should effectuate integrated 
        decisionmaking and avoid duplication by using a process 
        described as ``scoping;''\27\
---------------------------------------------------------------------------
    \27\Id. at 8-10. ``Scoping'' is defined as ``an early and open 
process for determining the scope of issues to be addressed and for 
identifying the significant issues related to a proposed action.'' 40 
C.F.R. Sec. 1501.7 (2014).

        (4) Lagencies should collaborate with tribal, state, 
        and local governments to reduce duplication, ``unless 
        the agencies are specifically barred from doing so by 
        some other law;''\28\
---------------------------------------------------------------------------
    \28\Id. at 10-11.

        (5) Lagencies must integrate, to the fullest extent 
        possible, their draft environmental analyses with those 
        required by other statutes or Executive Orders;\29\
---------------------------------------------------------------------------
    \29\Id. at 11-12.

        (6) Lagencies should promote the adoption of another 
        Federal agency's EIS;\30\
---------------------------------------------------------------------------
    \30\Id. at 12.

        (7) Lagencies should utilize incorporation by 
        reference, which is a ``method that provides efficiency 
        and timesaving when preparing either an EA or an 
        EIS;''\31\
---------------------------------------------------------------------------
    \31\Id. at 13.

        (8) Lagencies should facilitate public review of and 
        comment on EISs and EAs and provide reasonable and 
        proportionate responses to comments;\32\ and
---------------------------------------------------------------------------
    \32\Id. at 13-14.

        (9) Lagencies should establish ``appropriate and 
        predictable time limits.''\33\
---------------------------------------------------------------------------
    \33\Id. at 14.

And, last year, the CEQ published two handbooks to ``encourage 
more efficient environmental reviews under NEPA by integrating 
the NEPA process with the review processes of the National 
Historic Preservation Act Section 106 and the California 
Environmental Quality Act.''\34\ According to CEQ, these 
handbooks ``will facilitate quicker, more informed Federal 
decision-making on projects that impact American communities 
and help agencies improve efficiency, maximize staff resources, 
and reduce costs.''\35\
---------------------------------------------------------------------------
    \34\The White House--Council on Environmental Quality, Steps to 
Modernize and Reinvigorate NEPA, available at http://
www.whitehouse.gov/administration/eop/ceq/initatives/nepa (last visited 
Feb. 18, 2014).
    \35\Id.
---------------------------------------------------------------------------
    Although NEPA may not be perfect, proponents of legislative 
initiatives such as H.R. 2641 either intentionally or otherwise 
blame the Act as causing inordinate delay in the review and 
approval process. As the Congressional Research Service noted, 
however, with respect to federally funded highway projects, 
``[c]auses of delay that have been identified are more often 
tied to local/state and project-specific factors, primarily 
local/state agency priorities, project funding levels, local 
opposition to a project, project complexity, or late changes in 
project scope.''\36\
---------------------------------------------------------------------------
    \36\Linda Luther, The Role of the Environmental Review Process in 
Federally Funded Highway Projects: Background and Issues for Congress, 
Congressional Research Service Report, R42470, at summary (2012).
---------------------------------------------------------------------------

                        CONCERNS WITH H.R. 2641

    H.R. 2641 imposes a series of highly problematic review and 
approval requirements for agencies responsible for approving 
construction projects that are federally funded or that require 
Federal approval. The bill ignores the fact that for more than 
40 years, NEPA has provided an effective framework for all 
types of proposed actions, not just construction projects. 
Further, the CEQ, to ensure compliance with NEPA, has issued 
regulations and guidance that makes measures such as H.R. 2641 
unnecessary. Moreover, a comprehensive body of case law has 
developed interpreting NEPA's provisions that have guided its 
implementation.
    Contrary to the bill's title, H.R. 2641 will lead to more 
litigation and delay rather than streamlining the permit 
approval process. It will also create a parallel universe of 
regulatory requirements that would pertain only to certain 
types of projects. Most importantly, it potentially will shift 
control of the approval process from Federal agencies that are 
charged with protecting the health and safety of our Nation's 
citizens to the private sector.

         I. THE RAPID ACT IS A SOLUTION IN SEARCH OF A PROBLEM

    While not perfect, NEPA works very well. The vast majority 
of projects requiring Federal approval go through the NEPA 
process in a timely manner. Of the remaining projects that 
actually require a formal environmental review leading to an 
EIS or EA because of the complexity of the issues they present, 
NEPA provides flexibility to permit careful review without 
artificial deadlines.
    To the extent that the RAPID Act is intended to reduce 
delays in the conduct of environmental reviews of Federal 
projects, it is aimed at the wrong target. Broadly speaking, 
the bill attempts to short-circuit the existing environmental 
review processes under NEPA and its implementing regulations. 
As Dinah Bear, who served as the CEQ's General Counsel for 25 
years during the Reagan, George H.W. Bush, Clinton, and George 
W. Bush Administrations and who was intimately involved in the 
implementation of NEPA throughout the Executive Branch, 
observed, most delays in the environmental review processes are 
caused by factors other than NEPA or are justified by the 
nature of the project in question. Specifically, she noted:

        [T]he principal causes of unjustified delay in 
        implementing the NEPA review process are inadequate 
        agency resources, inadequate training, inadequate 
        leadership in implementing conflict dispute resolution 
        mechanisms (both internal and interagency), and lack of 
        coordination between Federal agencies and agencies at 
        the county, tribal and state level, including and in 
        particular coordinated, single environmental review 
        processes in cases where government agencies at other 
        levels have environmental review procedures. Causes of 
        justified delay include the complexity of proposed 
        projects and the associated impacts of them, changes in 
        the proposed project, the extent and nature of public 
        controversy, changes in budget and policy direction, 
        including Congressional oversight, and new 
        information.\37\
---------------------------------------------------------------------------
    \37\Responsibly And Professionally Invigorating Development (RAPID) 
Act of 2012: Hearing on H.R. 4377 Before the Subcomm. on Courts, 
Commercial and Admin. L. of the H. Comm. on the Judiciary, 112th Cong. 
193 (2012) (response of Dinah Bear to questions for the record from 
Subcommittee Ranking Member Steve Cohen) (emphases in the original).

In a similar vein, the Congressional Research Service, in an 
April 2012 report on the environmental review process for 
---------------------------------------------------------------------------
federally funded highway projects, noted:

        The time it takes to complete the NEPA process is often 
        the focus of debate over project delays attributable to 
        the overall environmental review stage. However, the 
        majority of [Federal Highway Administration]-approved 
        projects required limited documentation or analyses 
        under NEPA. Further, when environmental requirements 
        have caused project delays, requirements established 
        under laws other than NEPA have generally been the 
        source. This calls into question the degree to which 
        the NEPA compliance process is a significant source of 
        delay in completing either the environmental review 
        process or overall project delivery. Causes of delay 
        that have been identified are more often tied to local/
        state and project-specific factors, primarily local/
        state agency priorities, project funding levels, local 
        opposition to a project, project complexity, or late 
        changes in project scope. Further, approaches that have 
        been found to expedite environmental reviews involve 
        procedures that local and state transportation agencies 
        may implement currently, such as efficient coordination 
        of interagency involvement; early and continued 
        involvement with stakeholders interested in the 
        project; and identifying environmental issues and 
        requirements early in project development.\38\
---------------------------------------------------------------------------
    \38\Linda Luther, The Role of the Environmental Review Process in 
Federally Funded Highway Projects: Background and Issues for Congress, 
Congressional Research Service Report for Congress, R42479, Apr. 11, 
2012, at unnumbered summary page.

In light of the foregoing, the RAPID Act's focus on upending 
the NEPA review process for construction projects is, at best, 
misplaced.

 II. THE RAPID ACT TILTS THE APPROVAL PROCESS IN FAVOR OF THE PRIVATE 
                SECTOR AND IMPOSES UNREALISTIC DEADLINES

    One of the most critical concerns presented by the RAPID 
Act is that many of its provisions will give project proponents 
more control of the approval process, which presents serious 
public health and safety concerns. For example, new section 
560(c) would permit the project sponsor to prepare any document 
for purposes of an environmental review. This represents a 
fundamental shift in control of the review process from the 
agency to the private sector particularly with respect to EISs. 
While under NEPA the project sponsor may retain the services of 
an independent contractor to prepare certain documents, the 
contractual arrangement is between the agency and the 
contractor and the contractor must complete a financial 
disclosure statement disclosing any conflicts of interest.
    Another concern is that the bill imposes certain deadlines 
by which the environmental review must be complete. The failure 
of an agency meet these deadlines could result in the project 
being deemed approved pursuant to new section 560(i)(4)(C). The 
bill also prohibits a court from setting aside such action on 
grounds that it was deemed approved pursuant to new section 
560(i)(4)(D)).
    To illustrate these problems with the bill, House Judiciary 
Committee Ranking Member John Conyers, Jr. (D-MI) offered an 
amendment that would have ensured sufficient opportunity for 
public participation in this process. His amendment would have 
made certain that ``the ultimate decision made by these 
agencies for these projects are well informed . . .''\39\ His 
amendment, however, failed by party-line vote of 7 to 16.\40\
---------------------------------------------------------------------------
    \39\Unofficial Tr. of Markup of H.R. 2641, the Responsibly And 
Professionally Invigorating 
Development Act of 2013, by the H. Comm. on the Judiciary 139 (July 31, 
2013), available 
at http://judiciary.house.gov/_files/hearings/Markups%202013/
mark_07312013/07.31.13%20Mark up%20Transcript.pdf [hereinafter Markup 
Tr.].
    \40\Id. at 144.
---------------------------------------------------------------------------

 III. THE RAPID ACT ESTABLISHES A REGULATORY APPROVAL SCHEME THAT WILL 
                 CAUSE CONFUSION, DELAY, AND LITIGATION

    Like the U.S. Constitution, NEPA establishes a flexible 
framework that applies to all Federal agencies and all actions 
affecting the environment that require Federal approval. It has 
accommodated developing technologies and environmental issues. 
Much of NEPA's implementation over the past 40 years has been 
through the promulgation of regulations by CEQ and case law.
    NEPA applies to a vast panoply of Federal actions, such as 
management plans; fishing, hunting, and grazing permits; 
Defense Department Base Realignment and Closures activities; 
and treaties. In contrast, the RAPID Act would apply to an 
inexact subset of these actions, namely, construction projects, 
which the bill itself does not define. In fact, the bill may 
apply to only part of an undertaking. Consider the construction 
of a new nuclear reactor facility. The RAPID Act would apply to 
the building phase of the project, but not to the 
decommissioning aspect of the projects or to the transportation 
and storage aspects of spent fuel. Thus, agencies charged with 
regulating the reactor would be forced to apply two distinct 
sets of law to one undertaking.
    In addition, the RAPID Act borrows a variety of concepts 
from NEPA, but ignores others. It also incorporates modified 
versions of still other NEPA provisions. For example, new 
section 560(b) defines various terms, some of which are 
identical to how they are defined in NEPA, but other 
definitions in the bill differ from NEPA. Likewise, new section 
560(g)(2)(B) requires consideration, under certain 
circumstances, of whether alternatives to the project are 
``economically feasible,'' which is apparently a new term. As a 
result, courts will be required to interpret new terminology 
and requirements without the benefit of any precedent.
    Yet another concern presented by the bill is that it has 
internal inconsistences. For example, new section 560(d)(1) 
states that the lead agency must prepare the EIS and EA, but 
section 560(c) allows the project sponsor to prepare any 
document for purposes of an environmental review, subject to 
certain standards.
    Further, the bill would import state law into the Federal 
approval process. New section 560(d)(2) would direct the lead 
agency to adopt a document prepared for a project under state 
law if such law and the state's procedure are ``substantially 
equivalent to NEPA.'' First, it is unclear why a state approval 
process would even apply in a context that concerns a Federal 
project context. NEPA ensures that the Federal Government is 
regulating its own actions. Thus it does not make sense to 
allow an entity that is bound by state law to bind the Federal 
Government. Second, it is important to keep in mind that few 
states have meaningful environmental laws. Third, the bill 
requires the lead agency to adopt a state environmental review 
even if it was poorly executed, providing the state's law and 
review process is ``substantially'' equivalent to NEPA.
    Proponents of this legislation will likely argue that this 
requirement to use state environmental documents is similar to 
provisions in the Safe, Accountable, Flexible, Efficient 
Transportation Equity Act: A Legacy for Users (SAFETEA-LU).\41\ 
There are, however, significant differences. Under SAFETEA-LU, 
a pilot project was established for five states\42\ to 
undertake Federal NEPA standards that required the states to 
waive their immunity from suit.\43\ While more than one-half of 
the states have laws somewhat similar to NEPA, only a few of 
these have laws that are substantially equivalent to NEPA. As a 
result, only California has opted into the Federal pilot 
program and agreed to waive its sovereign immunity.\44\
---------------------------------------------------------------------------
    \41\Pub. L. No. 109-59, 119 Stat. 1144 (2005) (as amended).
    \42\Pub. L. No. 109-59, Title VI, Sec. 6005, 119 Stat. 1868-72, 
codified at 23 U.S.C. Sec. 327(b) (2006).
    \43\Pub. L. No. 109-59, Title VI, Sec. 6005, codified at 23 U.S.C. 
Sec. 327(c)(3) (2006).
    \44\\4\ See Federal Highway Administration, Report to Congress on 
the Surface Transportation Project Delivery Pilot Program Activities, 
Sept. 30, 2011, http://www.environment.fhwa.dot.gov/strmlng/6005_10-
11.htm (``This is the sixth report submitted to Congress and provides 
information on the activities of the Pilot Program during its sixth 
year, from August 11, 2010, to September 30, 2011. California continues 
to be the only State participating in the Pilot Program.''). See also 
Title 23 USC 327: NEPA Assignment, Cal. Dept. of Transp., http://
www.dot.ca.gov/hq/env/nepa_pilot/html/nepa_delegation_pilot_program.htm 
(``Previous to passage of MAP-21, Caltrans was the only state in the 
nation to participate in the ``Surface Transportation Project Delivery 
Pilot Program'' (Pilot Program), pursuant to Section 6005 of the Safe, 
Accountable, Flexible, Efficient Transportation Equity Act: A Legacy 
for Users act (SAFETEA-LU) beginning July 1, 2007 and ending September 
30, 2012.'').
---------------------------------------------------------------------------
    Finally, the RAPID Act would generate confusion because it 
parks these amendments in the Administrative Procedure Act 
(APA), which applies to all Federal agencies, even though the 
bill only applies to agencies subject to environmental law 
requirements, which do not implicate the APA. The bill is also 
silent as to how the litigation should be commenced and the 
timing.

 IV. THE RAPID ACT FORECLOSES MEANINGFUL PUBLIC AND GOVERNMENTAL INPUT 
                      AND IMPOSES RIGID DEADLINES

    Several provisions in the RAPID Act will limit meaningful 
input from other government agencies and restrict public 
comment and judicial review. For example, the lead agency is 
prohibited from considering comments supplied by an agency if 
the agency did not become a participating agency pursuant to 
new section 560(d)(4). There are many reasons why an agency may 
decline to be a participating agency, but the bill cuts off 
their ability to provide helpful input. Similarly, the bill 
prevents a lead agency from considering any untimely comments, 
even if they provide meaningful insight.
    The RAPID Act ignores various opportunities under NEPA that 
agencies have to develop a robust record with input from the 
public, such as scoping, public meetings, and responding to 
comments received from the public. For example, new section 
560(g) requires the lead agency to have cooperating agencies 
involved in determining the range of alternatives to be 
considered for a project, but is silent about public input. 
NEPA, on the other hand, requires agencies to go into the area 
and hold public hearings as well as solicit public input. As a 
result of these and other restrictions, the bill would enable 
agencies to approve projects without an informed basis derived 
from sufficient feedback and analysis.
    With respect to the bill's deadlines for projects subject 
to review under NEPA, the impact of these time frames in many 
instances may be nominal as a lot of environmental reviews do 
not take much time. On the other hand, there are occasionally 
very complicated and complex projects that require extended 
review periods that would exceed the deadlines set forth in new 
section 560(i). The bill allows these deadlines to be extended 
by consent of the interested parties or for good cause, which 
may not provide sufficient flexibility.
    To highlight these concerns about the bill, Representative 
Jerrold Nadler (D-NY) offered an amendment that would have 
exempted from the bill any construction project for a nuclear 
facility planned to be built in an area designated in an 
earthquake fault zone. Unfortunately, his amendment was 
rejected by a party-line vote of 9 to 15.\45\
---------------------------------------------------------------------------
    \45\Markup Tr. at 119.
---------------------------------------------------------------------------

     V. THE RAPID ACT ALLOWS AN AGENCY TO PRIORITIZE ITS PREFERRED 
 ALTERNATIVE, WHICH COULD CAUSE IT TO GIVE LESS CONSIDERATION TO OTHER 
                              ALTERNATIVES

    The requirement that agencies analyze and consider 
reasonable alternatives that fulfill the purpose of and need 
for the proposed action has long been considered the heart of 
the NEPA process. Without a genuine consideration of 
alternatives, the NEPA process loses its primary value in 
influencing decisionmaking and becomes a process that simply 
analyzes the effects of a decision already made. It is 
important to remember that under current law, alternatives can 
be proposed by anyone, inside or outside the lead agency, and 
that agencies are obligated to analyze the alternative of not 
approving a proposed project just as robustly as the 
alternative of approving the proposed project and reasonable 
alternatives to it.\46\
---------------------------------------------------------------------------
    \46\40 C.F.R. Sec. 1502.14 (2014).
---------------------------------------------------------------------------
    The RAPID Act fundamentally alters this essential 
requirement in at least two ways. First, subsection (g)(4) 
permits a lead agency to develop the preferred alternative to a 
higher level of detail than other alternatives if the agency 
determines that such analysis will not prevent it from making 
an impartial decision as to whether to accept another 
alternative. While this may seem fine in theory, in reality, 
developing one alternative to a higher level of detail than 
other alternatives inevitably raises the risk that the 
preferred alternative will be more likely to be approved than 
the other alternatives, including the alternative of non-
approval.
    Second, the various provisions that mandate ``approval by 
default'' if deadlines are not met, as well as the provision in 
subsection (j)(1) requiring resolution of issues that ``could 
result in denial of any approvals,'' all demonstrate a bias 
towards project approval. While project approval may well be 
the optimum result in many situations, Congress should not be 
weighing in across the spectrum of almost a hundred Federal 
agencies to dictate in advance that all proposed projects are 
worthy of approval, no matter what their impacts might be to 
the environment, to affected citizens, and to the public 
fisc.\47\
---------------------------------------------------------------------------
    \47\The RAPID Act tilts the balance of the environmental review and 
permit approval processes in favor of project sponsors in other ways 
too. For example, new section 560(i)(4)(C) would deem permits or 
licenses approved if an agency does not meet certain deadlines under 
the bill, rather than allowing agencies the time necessary to make an 
informed decision on a permit or license application. Moreover, the 
bill prohibits a court from setting aside such action pursuant to new 
section 560(i)(4)(D)), denying affected parties the right to challenge 
a ``deemed'' approval and placing the interests of private sector 
actors above those of other stakeholders in the environmental review 
and permit approval processes.
---------------------------------------------------------------------------
    Representative Sheila Jackson Lee (D-TX) offered an 
amendment that would have deleted the bill's problematic 
``deemed approved'' provision. The amendment, however, failed 
by a party-line vote of 8 to 16.\48\
---------------------------------------------------------------------------
    \48\Markup Tr. at 158.
---------------------------------------------------------------------------

   VI. THE RAPID ACT WILL LIKELY HAVE THE UNINTENDED CONSEQUENCE OF 
                   SLOWING DOWN THE APPROVAL PROCESS

    The bill presents the potential for numerous unintended 
consequences. For example, new section 560(d)(1) prohibits a 
lead agency from issuing more than one EIS or EA, ostensibly to 
streamline the review process. In practice, however, the bill 
fails to take into account the reality that a new EIS or EA may 
be clearly warranted in instances where: (1) the original 
environmental document was found to be incorrect; (2) a court 
directs the preparation of a new EIS or EA; or (3) a settlement 
agreement resolves pending litigation by requiring the issuance 
of a new EIS or EA. Another provision in the bill, section 
560(c) would force more participants to be formally involved in 
the commenting process at the risk of being precluded from 
offering comments as a nonparticipating agency. This 
requirement could unnecessarily inflate the number of 
participants and thereby slow down the review process.

              SECTION-BY-SECTION EXPLANATION OF H.R. 2641

    The following provides an explanation of the substantive 
provisions of H.R. 2641, which adds a new section 560 to the 
APA. This explanation details each subsection of new section 
560.
    Subsection (a) sets forth a congressional declaration of 
purpose. It states that this new subchapter is intended to 
establish a framework and procedures to streamline agency 
administration of the regulatory review, environmental 
decisionmaking, and permitting process for projects undertaken, 
reviewed, or funded by Federal agencies. The apparent scope of 
this provision is extremely extensive, as it is not limited to 
environmental actions by agencies.
    In addition, subsection (a) also states that the subchapter 
is intended to ensure that agencies administer the regulatory 
process in a manner that is efficient ``so that citizens are 
not burdened with regulatory excuses and time delays.'' It is 
unclear what would constitute a ``regulatory'' excuse. Also, it 
is somewhat hypocritical for supporters of this legislation to 
criticize ``time delays,'' when virtually all of the regulatory 
legislation that the Subcommittee has considered this Congress 
has been intended to slow down or stop the regulatory processes 
of agencies.
    Subsection (b) sets forth various definitions, including 
those for EAs, EISs, and FONSIs. An environmental document 
(ED), for example, means an EA or an EIS. It should be noted 
that the bill frequently utilizes the term ``project,'' which 
is defined here as ``major Federal actions that are 
construction activities undertaken with Federal funds or that 
require approval by a permit or regulatory decision issued by a 
Federal agency.'' As a result, it appears that the bill is 
largely limited to construction projects that are either 
federally funded or that require Federal approval. NEPA, 
however, applies to activities that do not involve construction 
projects, such as such as management plans; fishing, hunting, 
and grazing permits; Defense Department Base Realignment and 
Closures activities; and treaties.
    Subsection (c) specifies the authority of a ``project 
sponsor,'' which is defined as including an agency, private 
entity, or public-private entity that seeks approval for a 
project or otherwise is responsible for undertaking a project. 
A project is, in turn, defined as major Federal actions that 
are construction activities undertaken with Federal funds or 
that require approval by a permit or regulatory decision by a 
Federal agency.
    Upon request of the lead agency (LA) (which is the Federal 
agency responsible for preparing an EA or EIS), the project 
sponsor is authorized to prepare any document for purposes of 
an environmental review required in support of any project or 
LA approval. This applies if such agency: (1) furnishes 
oversight in the preparation of such document; (2) 
independently evaluates it; and (3) approves and adopts such 
document prior to taking or making any approval based on such 
document.
    Subsection (d)(1)(A) provides that only one EIS and one EA 
may be prepared for a project and that only the LA may prepare 
these documents. After the LA issues a record of decision, no 
Federal agency responsible for making any approval for that 
project may rely on a document other than the ED prepared by 
the LA. It is unclear, however, what would happen if an EIS or 
EA is later found to be defective and an agency, pursuant to a 
settlement agreement, is required to issue a new EIS or EA.
    Subsection (d)(1)(B) requires the LA to adopt, use or rely 
on secondary and cumulative impact analyses included in any ED 
prepared under NEPA for projects in the same geographic area 
where the secondary and cumulative impact analyses provide 
information and data that pertains to the NEPA decision for the 
project under review. It is unclear why this provision is in 
the alternative.
    Subsection (d)(2)(A) provides that the LA, upon request of 
a project sponsor, must adopt a document prepared for a project 
under state law and procedures as the EIS or EA for the 
project, providing the state law and procedures provide 
environmental protection and opportunities for public 
involvement that are substantially equivalent to NEPA. This 
provision could generate litigation as to whether a state law 
or procedure is ``substantially equivalent'' to NEPA, although 
section (c)(1) of the bill may address this concern.
    Subsection(d)(2)(B) provides that an ED adopted pursuant to 
the above is deemed to satisfy the LA's obligation under NEPA 
to prepare an EIS or EA.
    Subsection (d)(2)(C) provides that the LA--after 
preparation of such ED, but before its adoption by the agency--
must prepare and publish a supplement to such ED if the agency 
determines that there has been a significant change to the 
project that is relevant to the environmental review of such 
project or there has been significant changes in the 
information relevant to the environmental review of the 
project.
    Subsection (d)(2)(D) provides that if the agency prepares 
and publishes a supplemental document (as described above), the 
agency may solicit comments from agencies and the public on 
such document for a period not to exceed 30 days from 
publication of the supplement.
    Subsection (d)(2)(E) requires a LA to issue its record of 
decision or FONSI based on the document adopted pursuant to 
subsection (d)(2)(A) and any supplements thereto.
    If the LA determines that there is a reasonable likelihood 
that the project will have similar environmental impacts as a 
similar project in geographical proximity to the project, 
subsection (d)(3) authorizes the LA to adopt the ED that 
resulted from the environmental review of such similar project 
if it was subject to environmental review or similar state 
procedures within the 5-year period immediately preceding the 
date on which the agency made such determination. The LA may 
adopt such ED, if it is prepared under state law and procedures 
only after making a favorable determination on such ED pursuant 
to subsection (d)(2)(A). This provision does not require the 
state law or procedure is substantially similar to NEPA.
    Subsection (e)(1) requires the LA to be responsible for 
inviting and designating participating agencies in accordance 
with subsection (e) and such invitation and notice of 
desgination must be in writing.
    Subsection (e)(2) provides that a Federal agency required 
to adopt the ED of the LA for a project must be designated as a 
participating agency and collaborate on the preparation of the 
ED, unless the agency informs the LA in writing by a time 
specified by the LA that such agency: (1) has no jurisdiction 
or authority with respect to the project; (2) has no expertise 
or information relevant to the project; and (3) does not intend 
to submit comments on the project. It would appear that these 
requirements should be in the alternative.
    Subsection (e)(3) requires the LA to identify and invite as 
early as possible in the environmental review for a project any 
other agencies (other than those described in paragraph (2)) 
that may have an interest in the project, including governors 
of affected states. Such invitation must set a 30-day deadline 
for responses to be submitted. Such period may be extended by 
the LA for good cause shown. Any agency that fails to respond 
prior to the deadline is deemed to have declined the 
invitation.
    Subsection (e)(4) pertains to an agency that declines a 
designation or invitation by a LA to be a participating agency 
(PA). It provides that such agency is precluded from submitting 
comments on or taking any measures to oppose: (1) the project, 
(2) any document prepared under NEPA for such project, and (3) 
any permit, license, or approval related to such project. This 
prohibition may preclude an agency from identifying useful 
information to the LA. The subsection also requires the LA to 
disregard and to not respond to any comment submitted by such 
agency. This appears to be a rather shortsighted provision. On 
the one hand, it could encourage various agencies, even those 
with only a peripheral interest in the project, to become a PA 
so their opportunity to comment is not foreclosed. On the other 
hand, agencies may decline to participate on an unrelated 
basis, e.g., lack of resources, but then be foreclosed from 
offering helpful comments.
    Subsection (e)(5) provides that designation as a PA does 
not imply that such agency supports a proposed project or has 
any jurisdiction over or special expertise with respect to the 
evaluation of such project.
    Subsection (e)(6) permits a LA to designate a PA as a 
cooperating agency under 40 C.F.R. part 1500. Such designation 
has no effect on the agency's designation as a PA. On the other 
hand, only a PA may be designated as a cooperating agency. It 
is not clear, however, what the substantive differences are 
between a PA and a cooperating agency.
    Subsection (e)(7) requires each Federal agency to implement 
its responsibilities under other applicable law concurrently 
and in conjunction with its NEPA review, and in accordance with 
CEQ's rules in a way to ensure completion of the environmental 
review and decisionmaking process in a timely, coordinated, and 
environmentally responsible manner.
    Subsection (e)(8) requires a PA to limit its comments on a 
project to areas that are within such agency's authority and 
expertise and it must identify in such comments its statutory 
authority to make such comments. The LA cannot act upon, 
respond to, or include in any document prepared under NEPA any 
comment submitted by a PA that concerns matters outside of the 
PA's authority and expertise.
    Subsection (f)(1) requires the project sponsor to provide 
the Federal agency responsible for undertaking a project with 
notice of the initiation of the project by giving a description 
of the proposed project, its general location, and a statement 
of any Federal approvals anticipated to be necessary for the 
project for the purpose of informing the Federal agency that 
the environmental review should be initiated.
    Subsection (f)(2) requires the agency that receives the 
project initiation notice to promptly identify the LA for the 
project. In turn, the LA must initiate the environmental review 
within 45 days of receipt of such notice by inviting or 
designating agencies to become a PA. If the LA determines that 
no PA is required for the project, then it must take such other 
action that is reasonable and necessary to initiate the 
environmental review.
    Subsection (g)(1) requires the LA, as early as practicable 
during the environmental review, but no later than during 
scoping for a project requiring the preparation of an EIS, to 
give an opportunity for involvement by cooperating agencies in 
determining the range of alternatives to be considered for a 
project.
    Subsection (g)(2) provides that following participation 
pursuant to the above, the LA must determine the range of 
alternatives for consideration in any document that the LA is 
responsible for preparing for the project, subject to certain 
limit. First, no Federal agency may be required to evaluate any 
alternative that was identified, but not carried forward for 
detailed evaluation in an environmental document or evaluated 
and not selected in any environmental document prepared under 
NEPA for the same project.
    When a project sponsor, which is not a Federal agency, 
undertakes a project, cooperating agencies can only be required 
to evaluate alternatives that the project sponsor could 
feasibly undertake, including alternatives that can actually be 
undertaken by the project sponsor, and are technically and 
economically feasible.
    Subsection (g)(3)(A) requires the LA to determine, in 
collaboration with cooperating agencies at appropriate times 
during the environmental review, the methodologies to be used 
and the level of detail required in the analysis of each 
alternative for a project. The LA must include in the 
environmental document a description of the methodologies used 
and how they were selected.
    Subsection (g)(3)(B) provides that if the LA determines 
that an alternative does not meet the purpose and need for a 
project, then that alternative does not have to be evaluated in 
detail in an environmental document.
    Subsection (g)(4) provides that the LA, in its discretion, 
may develop the preferred alternative for a project to a higher 
level of detail than other alternatives to facilitate the 
development of mitigation measures or concurrent compliance 
with other applicable laws if such additional detail will not 
prevent the LA from making an impartial decision as to whether 
to accept another alternative which is being considered in the 
environmental review.
    Subsection (g)(5) requires the evaluation of each 
alternative in an EIS or EA to identify the potential effects 
of such alternative on employment, including potential short-
term and long-term impacts.
    Subsection (h)(1)(A) requires the LA to establish and 
implement a plan for coordinating public and agency 
participation/comment for the environmental review for a 
project or category of projects to facilitate the expeditious 
resolution of such review.
    Subsection (h)(1)(B) requires the LA, after consultation 
with each PA and project sponsor (if applicable), to establish 
a schedule for completion of the environmental review, which 
must include deadlines for decisions under any other Federal 
laws, including the issuance or denial of a permit or license 
relating to the project that is the subject of such schedule. 
The provision itemizes a series of factors that must be 
considered in establishing the schedule. A PA must comply with 
such time periods. The LA must disregard, not respond to, or 
include in any document prepared under NEPA any comment or 
information submitted or any finding made by a PA that is 
outside of the time periods established in the schedule. If a 
PA fails to object in writing to a LA's decision, finding, or 
request for concurrence within the time period established by 
law or by the LA, the agency shall be deemed to have concurred 
in the decision, finding, or request. What if there is a 
conflict between current law and the LA's determination?
    Subsection (h)(1)(C) requires the schedule as described 
above to be consistent with any other relevant time periods 
established under Federal law.
    Subsection (h)(1)(D) permits the LA to lengthen an 
established schedule for good cause. It may shorten it only 
with the concurrence of the cooperating agencies.
    Subsection (h)(1)(E) requires a copy of the schedule and 
any modification to be provided to all PA's and the project 
sponsor within 15 days of completion or modification and made 
available to the public. This does not specify who is to make 
the schedule available and how it is to be made available to 
the public.
    Subsection (h)(1)(F) provides that the LA has the authority 
and responsibility to take such actions as are necessary and 
proper to facilitate the expeditious resolution of the 
environmental review for the project.
    Subsection (i)(1) sets forth various deadlines applicable 
to any project subject to review under NEAP and any decision 
under Federal law relating to such project, including the 
issuance or denial of a permit or license or any required 
finding. For a project requiring an EIA, the LA has 2 years to 
issue a record of decision from the earlier of the date on 
which the LA receives the project initiation request or a 
Notice of Intent to Prepare an EIS is published in the Federal 
Register. Where the LA has prepared an ES and determined that 
an EIS is required, the LA must issue a record of decision 
within 2 years from the date of publication of the Notice of 
Intent to Prepare an Environmental Impact Statement in the 
Federal Register.
    For a project requiring an EA, the LA must issue a FONSI or 
publish a Notice of Intent to Prepare an EIS in the Federal 
Register within 1 year after the earlier of the date the LA 
receives the project initiation request, makes a decision to 
prepare an EA, or sends out PA invitations.
    Subsection (i)(2) provides that these deadlines may be 
extended only if a LA, project sponsor and PA agree or the LA 
determines that such extension is needed for good cause. The 
extension for a project requiring an EIS cannot be more than 1 
year. The limit for an EA is 180 days.
    Subsection (i)(3) pertains to environmental review 
comments. With respect to comments by agencies and the public 
on a draft EIS, the LA must establish a comment period not 
longer than 60 days after publication in the Federal Register 
of notice of the date of public availability of such EIS, 
unless a different deadline is established by agreement of the 
LA, project sponsor, and PA, or the deadline is extended by the 
LA for good cause.
    For all other comment periods for agency or public comments 
in the environmental review process, the LA shall establish a 
comment period that does not exceed 30 days from the 
availability of the materials on which comment is requested, 
unless a different deadline is established by agreement of the 
LA, project sponsor, and PA, or if the deadline is extended by 
the LA for good cause.
    Subsection (i)(4) overrides all other laws to impose 
certain deadlines in any case in which a decision under any 
other Federal law relating to the undertaking of a project 
reviewed under NEPA. With respect to instances where a Federal 
agency must approve or make a determination or finding 
regarding a project prior to the record of decision or FONSI, 
such approval, determination, or finding must be within 90 days 
after the LA publishes a notice of the availability of the 
final EIS or issuance of other final environmental documents, 
or not later than such other date that is otherwise required by 
law, whichever occurs first. This provision may impose an 
unreasonable time frame for certain determinations.
    With respect to other decisions, a Federal agency must make 
any required approval, determination, or finding within 180 
days after the LA issues the record of decision or FOSNI, 
unless a different deadline is established by agreement of the 
Federal agency, LA, and project sponsor, or the Federal agency 
extends the deadline for good cause. This gives the project 
sponsor a lot of control. The extension cannot be more than 1 
year after the LA issues the record of decision or FOSNI.
    If the Federal agency fails to approve or disapprove the 
project, or make a required finding or determination with the 
applicable deadlines, the project shall be deemed approved by 
such agency and the agency must issue any required permit or 
make any required finding or determination authorizing the 
project to proceed within 30 days of such deadline. This 
provision would appear to be problematic for very complex 
projects that require more time for review.
    Subsection (j)(1) requires the LA and PA to work 
cooperatively to identify and resolve issues that could delay 
completion of the environmental review or could result in 
denial of any approvals required for the project under 
applicable law. What happens if the PA does not work 
cooperatively?
    Subsection (j)(2) requires the LA to make information 
available to a PA as early as practicable in the environmental 
review regarding the environmental, historic, and socioeconomic 
resources located within the project area and the general 
locations of alternatives under consideration. Such information 
may be based on existing data sources, including geographic 
information systems mapping. Why is the identification of 
historic and socioeconomic resources relevant in all instances? 
What if the LA fails to comply with this provision?
    Subsection (j)(3) requires the PA, based on information 
received from the LA, to identify as early as practicable any 
issue of concern regarding the project's potential 
environmental, historic, or socioeconomic impacts. How does 
``impacts'' compare with ``resources''? What if the PA's 
concerns are not based on information provided by the LA? The 
provision specifies that issues of concern include any issues 
that could substantially delay or prevent an agency from 
granting a permit or other approval needed for the project.
    Subsection (j)(4) requires the LA, upon request of a 
project sponsor, to promptly convene a meeting with the 
relevant PA-s and the project sponsor to resolve issues that 
could delay completion of the environmental review or could 
result in denial of any approvals required for such project. If 
a resolution cannot be achieved within 30 days following such 
meeting and a determination by the LA that all information 
necessary to resolve the issue has been obtained, the LA must 
notify all PA-s, the project sponsor, and the CEQ for further 
proceedings in accordance with section 204 of NEPA and shall 
publish such notification in the Federal Register.
    Subsection (k) requires each Federal agency to report 
annually to Congress on the following: (1) the projects for 
which the agency initiated the preparation of an EIS or EA; (2) 
projects for which the agency issued a record of decision or 
FOSNI and the length of time it took for the agency to complete 
the environmental review for each such project; (3) filing of 
any lawsuits against the agency seeking judicial review of a 
permit, license, or approval issued by the agency for an action 
subject to NEPA, including the date the complaint was filed, 
the court in which the complaint was filed, and a summary of 
the claims for which judicial review was sought; and (4) the 
resolution of such lawsuits.
    Subsection (1)(1) overrides all other laws to bar a claim 
for judicial review of a permit, license, or approval issued by 
a Federal agency for an action subject to NEPA, unless certain 
criteria apply. Judicial review is available for a claim 
pertaining to a project for which an environmental review was 
conducted, if such claim is filed by a party that submitted a 
comment during the environmental review on the issue on which 
the party seeks judicial review and such comment was 
sufficiently detailed to put the LA on notice of the issue. In 
addition, the claim must be filed within 180 days after 
publication of a Federal Register notice announcing that the 
permit, license, or approval is final pursuant to the law under 
which the agency action is taken, unless a shorter time is 
specified in the Federal law pursuant to which judicial review 
is allowed.
    Subsection (l)(2) provides that the preparation of a 
supplemental EIS (when required) is deemed a separate final 
agency action and the deadline for filing a claim for judicial 
review of such action is 180 days after publication of a 
Federal Register notice announcing the record of decision for 
such action. Any claim challenging agency action on the basis 
of information in a supplemental EIS is limited to challenges 
on the basis of such information.
    Subsection (l)(3) specifies that nothing in subsection (l) 
may be construed to create a right to judicial review or limit 
the filing of a claim that a person has violated the terms of a 
permit, license, or approval.
    Subsection (m) provides that the authorities under 
subchapter IIA may be exercised for an individual project or 
category of projects.
    Subsection (n) specifies that the amendments made by this 
legislation apply prospectively to environmental reviews and 
environmental decisionmaking processes initiated after the date 
of enactment.
    Subsection (o) specifies that the amendments apply to all 
projects for which a Federal agency is required to undertake an 
environmental review or make a decision under an environmental 
law for a project for which a Federal agency is undertaking an 
environmental review or making a decision under an 
environmental law for a project for which a Federal agency is 
undertaking an environmental review.
    Section (c)(1) of the bill requires the CEQ to amend its 
regulations to implement this Act within 180 days from date of 
enactment. Also, the CEQ must designate states with laws and 
procedures that satisfy 5 U.S.C. section 560(d)(2)(A), as added 
by this act. This time frame may not be feasible.
    Section (c)(2) of the bill requires Federal agencies with 
regulations implementing NEPA to amend such regulations within 
120 days from when the CEQ amends its regulations.

                               CONCLUSION

    H.R. 2641 is based on the unproven assertion that there are 
unwarranted and extensive delays in the environmental review 
and permit approval process required by NEPA. To the contrary, 
the facts prove that NEPA provides a very workable process. 
Rather than streamline this process, the bill will create 
confusion, increased litigation, and delay. It will create a 
parallel environmental review process for an ill-defined subset 
of Federal activities; foreclose potentially meaningful input 
into the environmental review process from agencies and the 
public; institutionalize a bias in favor of approving an 
agency's preferred alternative; and inappropriately change 
substantive law by amending the APA.
    For the foregoing reasons, we strongly urge our colleagues 
to oppose H.R. 2641.

                                   John Conyers, Jr.
                                   Jerrold Nadler.
                                   Robert C. ``Bobby'' Scott.
                                   Sheila Jackson Lee.
                                   Steve Cohen.
                                   Henry C. ``Hank'' Johnson, Jr.
                                   Judy Chu.
                                   Luis V. Gutierrez.
                                   Joe Garcia.
                                   David N. Cicilline.