39–006 

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 


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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). 5See Piet deWitt & Carole deWitt, ‘‘How Long Does It Take to Prepare and Environmental 

Impact Statement?,’’ ENVIRONMENTAL PRACTICE 10, pp. 164–174 (Dec. 2008). 

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

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 biparVerDate Mar 15 2010 21:41 Feb 27, 2014 Jkt 039006 PO 00000 Frm 00002 Fmt 6659 Sfmt 6601 E:\HR\OC\HR363P1.XXX HR363P1

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6 42 U.S.C. § 4331. 

7 Id. § 4332(2)(C). 8See generally Kristina Alexander, Overview of National Environmental Policy Act (NEPA) Requirements (CRS RS20621 Jan. 12, 2011). 9 Id. at 3. 10Linda Luther, The National Environmental Policy Act (NEPA): Background and Implementation, at 15 (CRS RL33152 Jan. 10, 2011). 11RAPID Act Hearing, note 1 supra, at 201 (Testimony of Thomas Margro). 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. 

tisan 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

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

‘‘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

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 


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14See 28 U.S.C. § 2401. 15Luther, note 10 supra, at 25. 16See 28 U.S.C. § 4342. 17 40 C.F.R. § 1508.16. 18 Id. § 1501.7. 19 Id. § 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’’). 20 Id. § 1501.7(a). 

an agency’s review are brought under the APA’s 6-year statute of 

limitations.14

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

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. 

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: 

• Identifying and inviting ‘‘cooperating agencies,’’ 19 as well as 

stakeholders and other interested parties, to participate in 

preparing the EIS; 

• Identifying significant issues to be analyzed in depth in the 

EIS; 

• Eliminating insignificant issues; 

• Allocating responsibilities among the lead and cooperating 

agencies, although the lead agency ultimately remains responsible for the EIS; 

• Identifying other relevant environmental review documents, 

or review and consultation requirements, to avoid duplication and to maximize efficiency.20


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21 Id. § 1502.14. 22 Id. § 1502.14(a). 23 Id. § 1502.14(b)-(f). 24 Id. § 1501.7(b). 25 Id. § 1502.9. 26 Id. § 1503.1(a)(4) (The lead agency shall ‘‘affirmatively solicit[] comments from those persons 

or organizations who may be interested or affected’’). 27 Id. § 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)). 28 Id. §§ 1501.3, 1507.3. 29 Id. § 1501.3(b). 30 Id. § 1508.9(a). 31 Id. § 1508.9(b). 32 Id. § 1507.3(b). 

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

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

B. Environmental 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

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 


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33See generally Luther, note 10 supra, at 26–29; Linda Luther, The National Environmental 

Policy Act: Streamlining NEPA, at 7–10 (RL33267 Dec. 6, 2007). 34RAPID Act Hearing, note 1 supra, at 47–48 (Testimony of William Kovacs). 35 Available at http://www.law.georgetown.edu/gelpi/researchlarchive/nepa/NEPATaskForce lFinalRecommendations.pdf (last accessed June 22, 2012). 

36Steve 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-permittingchallenges-facing-proposed-energy (last accessed June 22, 2012). 37RAPID Act Hearing, note 1 supra, at 39 (Testimony of William Kovacs). 38See H.R. 3765, Title V, Subtitle A. 39See S. Amdt. 1537 to S. 1813 (Mar. 8, 2012). 40See ‘‘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 

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

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

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 


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(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.’’). 41Dan 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). 42See http://www.keystonepipeline-xl.state.gov (last accessed June 22, 2012). 43See http://energycommerce.house.gov/keystonexl.shtml (last accessed June 22, 2012). 44Save the Peaks Coal. v. U.S. Forest Serv., 669 F.3d 1025, 1034 (9th Cir. 2012). 45 Id. at 1028. 46 Id. 47 Id. 48RAPID Act Hearing, note 1 supra, at 56 (Testimony of William Kovacs). 

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

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: 

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

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 


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49See 23 U.S.C. § 139(l). 50Office 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). 51See P.L. 112–141, §§ 1301–1323. 52 Id., § 1308. 53See, 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). 54 109 P.L. 58, § 368. 55 109P.L. 58, § 369. 56 109 P.L. 58, § 372. 57See note 35 supra. 

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

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

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 MAP21’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

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

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 

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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. 63 ‘‘How We’re Meeting the Job Creation Challenge,’’ WALL STREET JOURNAL, June 13, 2011. 64 ‘‘Simply Regulatory Review and Streamline Project Approvals,’’ JOBS COUNCIL

RECOMMENDATIONS, available at http://files.jobs-council.com/files/2011/10/JobsCouncill 

Regulatory.pdf (last accessed June 22, 2012). 

ings 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

D. President’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 jobcreating 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 jobcreating 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: 

• Data collection and transparency; 

• Early stakeholder engagement; 

• Centralized monitoring and accountability for Federal agency performance; 

• Limiting duplication among local, state, and Federal agency 

reviews; 

• Improve litigation management.64


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65 Available at http://files.jobs-council.com/jobscouncil/files/2011/10/JobsCouncillInterim 

ReportlOct11.pdf, p. 27 (last accessed June 22, 2012). 66 Available at http://files.jobs-council.com/files/2012/01/JobsCouncill2011YearEndReport 

Web.pdf, pp. 42–44 (last accessed June 22, 2012). 67Press 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 accessed June 22, 2012). 68 Id. 69Press 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-announcesselection-14-infrastructure-projects-be-e (last accessed June 22, 2012). 70See 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). 

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

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 commonsense 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: 

• Institutionalizing 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; 

• Developing mechanisms to better communicate priorities and 

resolve disputes among agencies at the national and regional 

levels; 

• Institutionalizing use of the Dashboard, working with the 

CIO to enhance the Dashboard, and utilizing other cost-effective information technology systems to share environmental 


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72See http://permits.performance.gov/sites/default/files/FederallInfrastructurelPlan.pdf (last 

accessed June 22, 2012). 73RAPID Act Hearing, note 1 supra, at 57 (Testimony of William Kovacs). 74See http://permits.performance.gov/news-and-updates (June 22, 2012). 

and project-related information with the public, project sponsors, and permit reviewers; and 

• Identifying 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. 

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 intergovernmental 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

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, 


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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 


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ROLLCALL NO. 1—Continued 

Ayes Nays Present 

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) .......................................................................................


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ROLLCALL NO. 2—Continued 

Ayes Nays Present 

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) ...............................................................................................


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ROLLCALL NO. 3—Continued 

Ayes Nays Present 

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 


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ROLLCALL NO. 4—Continued 

Ayes Nays Present 

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: 


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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 


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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: 

• Authorize 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; 

• Require 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; 

• Allow 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; 

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

• Impose 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 

• Establish 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: 

• The Department of Transportation (which spends about $50 

billion annually on highway and transit related construction 

projects); 

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

• The 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 


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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 


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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, 


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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 


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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 


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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 

* * * * * * * 


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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 

§ 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; 


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(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 


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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. 


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(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 INVITA- TION.—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. 


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(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. 


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(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; 


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(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): 


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(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 


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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). 


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(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; 


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(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. 


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1Pub. L. No. 91–190 (1970), codified at 42 U.S.C. §§ 4321 et seq. (2014). 2 5 U.S.C. Sec. 551–59, 701–06, 1305, 3105, 3344, 5372, 7521 (2014). 

3 42 U.S.C. §§ 7401 et seq. (2014). 

(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. 

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. 

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 


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4Letter 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). 6Letter 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). 

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

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) authorizes 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) deems 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) prohibits, 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) allows 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; 


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7 42 U.S.C. § 4321 (2014). 

8The 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. 

(5) authorizes 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) requires 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) precludes 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) imposes 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) imposes 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 


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10 Id. 11 42 U.S.C. § 4321 (2014). 12 Id. 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. 

lands while encouraging compromise and cultivating better projects 

with more public input.’’ 10

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. 

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

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. 

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: 


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15 16 U.S.C. §§ 1531 et seq. (2014). 16 42 U.S.C. § 4321 (2014). 17 42 U.S.C. § 4342 (2014). 

• publication of a public notice of intent, 

• scoping (identification of issues that are important to analyze 

in the EIS, including interagency concerns), 

• appointing agencies that should participate in the environmental review process, 

• issuing a draft EIS that is then published in the Federal 

Register with a minimum of a 45-day public review and comment period, 

• responding to all substantive comments at the end of the 

comment period, 

• publishing a 30-day notice of the availability of a final EIS 

that includes a summary of the comments and responses 

thereto, and 

• rendering 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. 

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 qualVerDate Mar 15 2010 21:41 Feb 27, 2014 Jkt 039006 PO 00000 Frm 00039 Fmt 6659 Sfmt 6601 E:\HR\OC\HR363P1.XXX HR363P1

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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. § 4344 (2014). 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. 23Memorandum 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. 25 Id. at 5–6. 26 Id. at 6–8 

ity of the environment.’’ 18 NEPA further enumerates the CEQ’s 

specific duties.19

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

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: 

(1) environmental reviews should be concise and ‘‘written 

in plain language;’’ 25

(2) agencies should integrate NEPA early in their internal 

processes for developing a proposed policy, program, 

management plan, or project;26


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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. § 1501.7 (2014). 28 Id. at 10–11. 29 Id. at 11–12. 30 Id. at 12. 31 Id. at 13. 32 Id. at 13–14. 33 Id. at 14. 34The 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. 36Linda 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). 

(3) agencies should effectuate integrated decisionmaking 

and avoid duplication by using a process described as 

‘‘scoping;’’ 27

(4) agencies 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

(5) agencies must integrate, to the fullest extent possible, 

their draft environmental analyses with those required 

by other statutes or Executive Orders;29

(6) agencies should promote the adoption of another Federal agency’s EIS;30

(7) agencies should utilize incorporation by reference, 

which is a ‘‘method that provides efficiency and timesaving when preparing either an EA or an EIS;’’ 31

(8) agencies should facilitate public review of and comment on EISs and EAs and provide reasonable and 

proportionate responses to comments;32 and 

(9) agencies should establish ‘‘appropriate and predictable 

time limits.’’ 33

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

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


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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 diVerDate Mar 15 2010 21:41 Feb 27, 2014 Jkt 039006 PO 00000 Frm 00042 Fmt 6659 Sfmt 6601 E:\HR\OC\HR363P1.XXX HR363P1

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37Responsibly 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). 38Linda 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. 

rection, including Congressional oversight, and new information.37

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

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 


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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. 

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

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 


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41Pub. L. No. 109–59, 119 Stat. 1144 (2005) (as amended). 42Pub. L. No. 109–59, Title VI, § 6005, 119 Stat. 1868–72, codified at 23 U.S.C. § 327(b) (2006). 43Pub. L. No. 109–59, Title VI, § 6005, codified at 23 U.S.C. § 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.’’). 

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

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 


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45Markup Tr. at 119. 46 40 C.F.R. § 1502.14 (2014). 

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

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

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 


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47The 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. 48Markup Tr. at 158. 

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

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

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. 


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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. 


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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 subVerDate Mar 15 2010 21:41 Feb 27, 2014 Jkt 039006 PO 00000 Frm 00049 Fmt 6659 Sfmt 6601 E:\HR\OC\HR363P1.XXX HR363P1

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section 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 idenVerDate Mar 15 2010 21:41 Feb 27, 2014 Jkt 039006 PO 00000 Frm 00050 Fmt 6659 Sfmt 6601 E:\HR\OC\HR363P1.XXX HR363P1

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tified, 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. 


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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. 


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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 


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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 


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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. 

Æ 


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