19–006 

112TH CONGRESS REPT. 112–596 " ! HOUSE OF REPRESENTATIVES 2d Session Part 1 

RAPID ACT 

JULY 17, 2012.—Committed to the Committee of the Whole House on the State of 

the Union and ordered to be printed 

Mr. SMITH of Texas, from the Committee on the Judiciary, 

submitted the following 

R E P O R T 

together with 

DISSENTING VIEWS 

[To accompany H.R. 4377] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on on the Judiciary, to whom was referred the 

bill (H.R. 4377) 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 with an amendment 

and recommends that the bill as amended do pass. 

CONTENTS 

Page 

The Amendment ...................................................................................................... 2 

Purpose and Summary ............................................................................................ 9 

Background and Need for the Legislation ............................................................. 9 

Hearings ................................................................................................................... 19 

Committee Consideration ........................................................................................ 20 

Committee Votes ...................................................................................................... 20 

Committee Oversight Findings ............................................................................... 26 

New Budget Authority and Tax Expenditures ...................................................... 26 

Congressional Budget Office Cost Estimate .......................................................... 26 

Performance Goals and Objectives ......................................................................... 29 

Advisory on Earmarks ............................................................................................. 29 

Section-by-Section Analysis .................................................................................... 30 

Changes in Existing Law Made by the Bill, as Reported ..................................... 33 

Dissenting Views ..................................................................................................... 44 


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The Amendment 

The amendment is as follows: 

Strike all after the enacting clause and insert the following: 

SECTION 1. SHORT TITLE. 

This Act may be cited as the ‘‘Responsibly And Professionally Invigorating Development Act of 2012’’ or as the ‘‘RAPID Act’’. 

SEC. 2. COORDINATION OF AGENCY ADMINISTRATIVE OPERATIONS FOR EFFICIENT DECISIONMAKING. 

(a) IN GENERAL.—Part I of chapter 5 of title 5, United States Code, is amended 

by inserting after subchapter II the following: 

‘‘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; 

‘‘(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 


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decision and states whether all practicable means to avoid or minimize environmental harm from the alternative selected have been adopted, and if not, why 

they were not adopted. 

‘‘(c) PREPARATION OF ENVIRONMENTAL DOCUMENTS.—Upon the request of the lead 

agency, the project sponsor shall be authorized to prepare any document for purposes of an environmental review required in support of any project or approval by 

the lead agency if the lead agency furnishes oversight in such preparation and independently evaluates such document and the document is approved and adopted by 

the lead agency prior to taking any action or making any approval based on such 

document. 

‘‘(d) ADOPTION AND USE OF DOCUMENTS.— ‘‘(1) DOCUMENTS PREPARED UNDER NEPA.— ‘‘(A) Not more than 1 environmental impact statement and 1 environmental assessment shall be prepared under NEPA for a project (except for 

supplemental environmental documents prepared under NEPA or environmental documents prepared pursuant to a court order), and, except as otherwise provided by law, the lead agency shall prepare the environmental 

impact statement or environmental assessment. After the lead agency 

issues a record of decision, no Federal agency responsible for making any 

approval for that project may rely on a document other than the environmental document prepared by the lead agency. 

‘‘(B) Upon the request of a project sponsor, a lead agency may adopt, use, 

or rely upon secondary and cumulative impact analyses included in any environmental document prepared under NEPA for projects in the same geographic area where the secondary and cumulative impact analyses provide 

information and data that pertains to the NEPA decision for the project 

under review. 

‘‘(2) STATE ENVIRONMENTAL DOCUMENTS; SUPPLEMENTAL DOCUMENTS.— 

‘‘(A) Upon the request of a project sponsor, a lead agency may adopt a 

document that has been prepared for a project under State laws and procedures as the environmental impact statement or environmental assessment 

for the project, provided that the State laws and procedures under which 

the document was prepared provide environmental protection and opportunities for public involvement that are substantially equivalent to NEPA. 

‘‘(B) An environmental document adopted under subparagraph (A) is 

deemed to satisfy the lead agency’s obligation under NEPA to prepare an 

environmental impact statement or environmental assessment. 

‘‘(C) In the case of a document described in subparagraph (A), during the 

period after preparation of the document but before its adoption by the lead 

agency, the lead agency shall prepare and publish a supplement to that document if the lead agency determines that— 

‘‘(i) a significant change has been made to the project that is relevant 

for purposes of environmental review of the project; or 

‘‘(ii) there have been significant changes in circumstances or availability of information relevant to the environmental review for the 

project. 

‘‘(D) If the agency prepares and publishes a supplemental document 

under subparagraph (C), the lead agency may solicit comments from agencies and the public on the supplemental document for a period of not more 

than 45 days beginning on the date of the publication of the supplement. 

‘‘(E) A lead agency shall issue its record of decision or finding of no significant impact, as appropriate, based upon the document adopted under 

subparagraph (A), and any supplements thereto. 

‘‘(3) CONTEMPORANEOUS PROJECTS.—If the lead agency determines that there 

is a reasonable likelihood that the project will have similar environmental impacts as a similar project in geographical proximity to the project, and that 

similar project was subject to environmental review or similar State procedures 

within the 5 year period immediately preceding the date that the lead agency 

makes that determination, the lead agency may adopt the environmental document that resulted from that environmental review or similar State procedure. 

The lead agency may adopt such an environmental document, if it is prepared 

under State laws and procedures only upon making a favorable determination 

on such environmental document pursuant to paragraph (2)(A). 

‘‘(e) PARTICIPATING AGENCIES.— 

‘‘(1) IN GENERAL.—The lead agency shall be responsible for inviting and designating participating agencies in accordance with this subsection. The lead agency shall provide the invitation or notice of the designation in writing. 

‘‘(2) FEDERAL PARTICIPATING AGENCIES.—Any Federal agency that is required 

to adopt the environmental document of the lead agency for a project shall be 


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designated as a participating agency and shall collaborate on the preparation 

of the environmental document, unless the Federal agency informs the lead 

agency, in writing, by a time specified by the lead agency in the designation 

of the Federal agency that the Federal agency— 

‘‘(A) has no jurisdiction or authority with respect to the project; 

‘‘(B) has no expertise or information relevant to the project; and 

‘‘(C) does not intend to submit comments on the project. 

‘‘(3) INVITATION.—The lead agency shall identify, as early as practicable in the 

environmental review for a project, any agencies other than an agency described 

in paragraph (2) that may have an interest in the project, including, where appropriate, Governors of affected States, and heads of appropriate tribal and 

local (including county) governments, and shall invite such identified agencies 

and officials to become participating agencies in the environmental review for 

the project. The invitation shall set a deadline of 30 days for responses to be 

submitted, which may only be extended by the lead agency for good cause 

shown. Any agency that fails to respond prior to the deadline shall be deemed 

to have declined the invitation. 

‘‘(4) EFFECT OF DECLINING PARTICIPATING AGENCY INVITATION.—Any agency 

that declines a designation or invitation by the lead agency to be a participating 

agency shall be precluded from submitting comments on any document prepared under NEPA for that project or taking any measures to oppose, based on 

the environmental review, any permit, license, or approval related to that 

project. 

‘‘(5) EFFECT OF DESIGNATION.—Designation as a participating agency under 

this subsection does not imply that the participating agency— 

‘‘(A) supports a proposed project; or 

‘‘(B) has any jurisdiction over, or special expertise with respect to evaluation of, the project. 

‘‘(6) COOPERATING AGENCY.—A participating agency may also be designated by 

a lead agency as a ‘cooperating agency’ under the regulations contained in part 

1500 of title 40, Code of Federal Regulations, as in effect on January 1, 2011. 

Designation as a cooperating agency shall have no effect on designation as participating agency. No agency that is not a participating agency may be designated as a cooperating agency. 

‘‘(7) CONCURRENT REVIEWS.—Each Federal agency shall— 

‘‘(A) carry out obligations of the Federal agency under other applicable 

law concurrently and in conjunction with the review required under NEPA; 

and 

‘‘(B) in accordance with the rules made by the Council on Environmental 

Quality pursuant to subsection (n)(1), make and carry out such rules, policies, and procedures as may be reasonably necessary to enable the agency 

to ensure completion of the environmental review and environmental decisionmaking process in a timely, coordinated, and environmentally responsible manner. 

‘‘(8) COMMENTS.—Each participating agency shall limit its comments on a 

project to areas that are within the authority and expertise of such participating agency. Each participating agency shall identify in such comments the 

statutory authority of the participating agency pertaining to the subject matter 

of its comments. The lead agency shall not act upon, respond to or include in 

any document prepared under NEPA, any comment submitted by a participating agency that concerns matters that are outside of the authority and expertise of the commenting participating agency. 

‘‘(f) PROJECT INITIATION REQUEST.— 

‘‘(1) NOTICE.—A project sponsor shall provide the Federal agency responsible 

for undertaking a project with notice of the initiation of the project by providing 

a description of the proposed project, the general location of the proposed 

project, and a statement of any Federal approvals anticipated to be necessary 

for the proposed project, for the purpose of informing the Federal agency that 

the environmental review should be initiated. 

‘‘(2) LEAD AGENCY INITIATION.—The agency receiving a project initiation notice 

under paragraph (1) shall promptly identify the lead agency for the project, and 

the lead agency shall initiate the environmental review within a period of 45 

days after receiving the notice required by paragraph (1) by inviting or designating agencies to become participating agencies, or, where the lead agency determines that no participating agencies are required for the project, by taking 

such other actions that are reasonable and necessary to initiate the environmental review. 

‘‘(g) ALTERNATIVES ANALYSIS.— 


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‘‘(1) PARTICIPATION.—As early as practicable during the environmental review, 

but no later than during scoping for a project requiring the preparation of an 

environmental impact statement, the lead agency shall provide an opportunity 

for involvement by cooperating agencies in determining the range of alternatives to be considered for a project. 

‘‘(2) RANGE OF ALTERNATIVES.—Following participation under paragraph (1), 

the lead agency shall determine the range of alternatives for consideration in 

any document which the lead agency is responsible for preparing for the project, 

subject to the following limitations: 

‘‘(A) NO EVALUATION OF CERTAIN ALTERNATIVES.—No Federal agency shall 

evaluate any alternative that was identified but not carried forward for detailed evaluation in an environmental document or evaluated and not selected in any environmental document prepared under NEPA for the same 

project. 

‘‘(B) ONLY FEASIBLE ALTERNATIVES EVALUATED.—Where a project is being 

constructed, managed, funded, or undertaken by a project sponsor that is 

not a Federal agency, Federal agencies shall only be required to evaluate 

alternatives that the project sponsor could feasibly undertake, consistent 

with the purpose of and the need for the project, including alternatives that 

can be undertaken by the project sponsor and that are technically and economically feasible. 

‘‘(3) METHODOLOGIES.— 

‘‘(A) IN GENERAL.—The lead agency shall determine, in collaboration with 

cooperating agencies at appropriate times during the environmental review, 

the methodologies to be used and the level of detail required in the analysis 

of each alternative for a project. The lead agency shall include in the environmental document a description of the methodologies used and how the 

methodologies were selected. 

‘‘(B) NO EVALUATION OF INAPPROPRIATE ALTERNATIVES.—When a lead 

agency determines that an alternative does not meet the purpose and need 

for a project, that alternative is not required to be evaluated in detail in 

an environmental document. 

‘‘(4) PREFERRED ALTERNATIVE.—At the discretion of the lead agency, the preferred alternative for a project, after being identified, may be developed to a 

higher level of detail than other alternatives in order to facilitate the development of mitigation measures or concurrent compliance with other applicable 

laws if the lead agency determines that the development of such higher level 

of detail will not prevent the lead agency from making an impartial decision as 

to whether to accept another alternative which is being considered in the environmental review. 

‘‘(5) EMPLOYMENT ANALYSIS.—The evaluation of each alternative in an environmental impact statement or an environmental assessment shall identify the 

potential effects of the alternative on employment, including potential shortterm and long-term employment increases and reductions and shifts in employment. 

‘‘(h) COORDINATION AND SCHEDULING.— 

‘‘(1) COORDINATION PLAN.— 

‘‘(A) IN GENERAL.—The lead agency shall establish and implement a plan 

for coordinating public and agency participation in and comment on the environmental review for a project or category of projects to facilitate the expeditious resolution of the environmental review. 

‘‘(B) SCHEDULE.— 

‘‘(i) IN GENERAL.—The lead agency shall establish as part of the coordination plan for a project, after consultation with each participating 

agency and, where applicable, the project sponsor, a schedule for completion of the environmental review. The schedule shall include deadlines, consistent with subsection (i), for decisions under any other Federal laws (including the issuance or denial of a permit or license) relating to the project that is covered by the schedule. 

‘‘(ii) FACTORS FOR CONSIDERATION.—In establishing the schedule, the 

lead agency shall consider factors such as— 

‘‘(I) the responsibilities of participating agencies under applicable 

laws; 

‘‘(II) resources available to the participating agencies; 

‘‘(III) overall size and complexity of the project; 

‘‘(IV) overall schedule for and cost of the project; 

‘‘(V) the sensitivity of the natural and historic resources that 

could be affected by the project; and 


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‘‘(VI) the extent to which similar projects in geographic proximity 

were recently subject to environmental review or similar State procedures. 

‘‘(iii) COMPLIANCE WITH THE SCHEDULE.— ‘‘(I) All participating agencies shall comply with the time periods 

established in the schedule or with any modified time periods, 

where the lead agency modifies the schedule pursuant to subparagraph (D). 

‘‘(II) The lead agency shall disregard and shall not respond to or 

include in any document prepared under NEPA, any comment or 

information submitted or any finding made by a participating 

agency that is outside of the time period established in the schedule or modification pursuant to subparagraph (D) for that agency’s 

comment, submission or finding. 

‘‘(III) If a participating agency fails to object in writing to a lead 

agency decision, finding or request for concurrence within the time 

period established under law or by the lead agency, the agency 

shall be deemed to have concurred in the decision, finding or request. 

‘‘(C) CONSISTENCY WITH OTHER TIME PERIODS.—A schedule under subparagraph (B) shall be consistent with any other relevant time periods established under Federal law. 

‘‘(D) MODIFICATION.—The lead agency may— 

‘‘(i) lengthen a schedule established under subparagraph (B) for good 

cause; and 

‘‘(ii) shorten a schedule only with the concurrence of the cooperating 

agencies. 

‘‘(E) DISSEMINATION.—A copy of a schedule under subparagraph (B), and 

of any modifications to the schedule, shall be— 

‘‘(i) provided within 15 days of completion or modification of such 

schedule to all participating agencies and to the project sponsor; and 

‘‘(ii) made available to the public. 

‘‘(F) ROLES AND RESPONSIBILITY OF LEAD AGENCY.—With respect to the 

environmental review for any project, the lead agency shall have authority 

and responsibility to take such actions as are necessary and proper, within 

the authority of the lead agency, to facilitate the expeditious resolution of 

the environmental review for the project. 

‘‘(i) DEADLINES.—The following deadlines shall apply to any project subject to review under NEPA and any decision under any Federal law relating to such project 

(including the issuance or denial of a permit or license or any required finding): 

‘‘(1) ENVIRONMENTAL REVIEW DEADLINES.—The lead agency shall complete the 

environmental review within the following deadlines: 

‘‘(A) ENVIRONMENTAL IMPACT STATEMENT PROJECTS.—For projects requiring preparation of an environmental impact statement— 

‘‘(i) the lead agency shall issue an environmental impact statement 

within 2 years after the earlier of the date the lead agency receives the 

project initiation request or a Notice of Intent to Prepare an Environmental Impact Statement is published in the Federal Register; and 

‘‘(ii) in circumstances where the lead agency has prepared an environmental assessment and determined that an environmental impact 

statement will be required, the lead agency shall issue the environmental impact statement within 2 years after the date of publication 

of the Notice of Intent to Prepare an Environmental Impact Statement 

in the Federal Register. 

‘‘(B) ENVIRONMENTAL ASSESSMENT PROJECTS.—For projects requiring 

preparation of an environmental assessment, the lead agency shall issue a 

finding of no significant impact or publish a Notice of Intent to Prepare an 

Environmental Impact Statement in the Federal Register within 1 year 

after the earlier of the date the lead agency receives the project initiation 

request, makes a decision to prepare an environmental assessment, or 

sends out participating agency invitations. 

‘‘(2) EXTENSIONS.— 

‘‘(A) REQUIREMENTS.—The environmental review deadlines may be extended only if— 

‘‘(i) a different deadline is established by agreement of the lead agency, the project sponsor, and all participating agencies; or 

‘‘(ii) the deadline is extended by the lead agency for good cause. 

‘‘(B) LIMITATION.—The environmental review shall not be extended by 

more than 1 year for a project requiring preparation of an environmental 


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impact statement or by more than 180 days for a project requiring preparation of an environmental assessment. 

‘‘(3) ENVIRONMENTAL REVIEW COMMENTS.— ‘‘(A) COMMENTS ON DRAFT ENVIRONMENTAL IMPACT STATEMENT.—For comments by agencies and the public on a draft environmental impact statement, the lead agency shall establish a comment period of not more than 

60 days after publication in the Federal Register of notice of the date of 

public availability of such document, unless— 

‘‘(i) a different deadline is established by agreement of the lead agency, the project sponsor, and all participating agencies; or 

‘‘(ii) the deadline is extended by the lead agency for good cause. 

‘‘(B) OTHER COMMENTS.—For all other comment periods for agency or 

public comments in the environmental review process, the lead agency shall 

establish a comment period of no more than 30 days from availability of the 

materials on which comment is requested, unless— 

‘‘(i) a different deadline is established by agreement of the lead agency, the project sponsor, and all participating agencies; or 

‘‘(ii) the deadline is extended by the lead agency for good cause. 

‘‘(4) DEADLINES FOR DECISIONS UNDER OTHER LAWS.—Notwithstanding any 

other provision of law, in any case in which a decision under any other Federal 

law relating to the undertaking of a project being reviewed under NEPA (including the issuance or denial of a permit or license) is required to be made, 

the following deadlines shall apply: 

‘‘(A) DECISIONS PRIOR TO RECORD OF DECISION OR FINDING OF NO SIGNIFICANT IMPACT.—If a Federal agency is required to approve, or otherwise to 

act upon, a permit, license, or other similar application for approval related 

to a project prior to the record of decision or finding of no significant impact, such Federal agency shall approve or otherwise act not later than the 

end of a 90 day period beginning— 

‘‘(i) after all other relevant agency review related to the project is 

complete; and 

‘‘(ii) after the lead agency publishes a notice of the availability of the 

final environmental impact statement or issuance of other final environmental documents, or no later than such other date that is otherwise required by law, whichever event occurs first. 

‘‘(B) OTHER DECISIONS.—With regard to any approval or other action related to a project by a Federal agency that is not subject to subparagraph 

(A), each Federal agency shall approve or otherwise act not later than the 

end of a period of 180 days beginning— 

‘‘(i) after all other relevant agency review related to the project is 

complete; and 

‘‘(ii) after the lead agency issues the record of decision or finding of 

no significant impact, unless a different deadline is established by 

agreement of the Federal agency, lead agency, and the project sponsor, 

where applicable, or the deadline is extended by the Federal agency for 

good cause, provided that such extension shall not extend beyond a period that is 1 year after the lead agency issues the record of decision 

or finding of no significant impact. 

‘‘(C) FAILURE TO ACT.—In the event that any Federal agency fails to approve, or otherwise to act upon, a permit, license, or other similar application for approval related to a project within the applicable deadline described in subparagraph (A) or (B), the permit, license, or other similar application shall be deemed approved by such agency and the agency shall 

take action in accordance with such appoval within 30 days of the applicable deadline described in subparagraph (A) or (B). 

‘‘(D) FINAL AGENCY ACTION.—Any approval under subparagraph (C) is 

deemed to be final agency action, and may not be reversed by any agency. 

In any action under chapter 7 seeking review of such a final agency action, 

the court may not set aside such agency action by reason of that agency 

action having occurred under this paragraph. 

‘‘(j) ISSUE IDENTIFICATION AND RESOLUTION.— 

‘‘(1) COOPERATION.—The lead agency and the participating agencies shall 

work cooperatively in accordance with this section to identify and resolve issues 

that could delay completion of the environmental review or could result in denial of any approvals required for the project under applicable laws. 

‘‘(2) LEAD AGENCY RESPONSIBILITIES.—The lead agency shall make information 

available to the participating agencies as early as practicable in the environmental review regarding the environmental, historic, and socioeconomic resources located within the project area and the general locations of the alterVerDate Mar 15 2010 22:33 Jul 17, 2012 Jkt 019006 PO 00000 Frm 00007 Fmt 6659 Sfmt 6621 E:\HR\OC\HR596P1.XXX HR596P1

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natives under consideration. Such information may be based on existing data 

sources, including geographic information systems mapping. 

‘‘(3) PARTICIPATING AGENCY RESPONSIBILITIES.—Based on information received 

from the lead agency, participating agencies shall identify, as early as practicable, any issues of concern regarding the project’s potential environmental, 

historic, or socioeconomic impacts. In this paragraph, issues of concern include 

any issues that could substantially delay or prevent an agency from granting 

a permit or other approval that is needed for the project. 

‘‘(4) ISSUE RESOLUTION.— ‘‘(A) MEETING OF PARTICIPATING AGENCIES.—At any time upon request of 

a project sponsor, the lead agency shall promptly convene a meeting with 

the relevant participating agencies and the project sponsor, to resolve 

issues that could delay completion of the environmental review or could result in denial of any approvals required for the project under applicable 

laws. 

‘‘(B) NOTICE THAT RESOLUTION CANNOT BE ACHIEVED.—If a resolution cannot be achieved within 30 days following such a meeting and a determination by the lead agency that all information necessary to resolve the issue 

has been obtained, the lead agency shall notify the heads of all participating agencies, the project sponsor, and the Council on Environmental 

Quality for further proceedings in accordance with section 204 of NEPA, 

and shall publish such notification in the Federal Register. 

‘‘(k) REPORT TO CONGRESS.—The head of each Federal agency shall report annually to Congress— 

‘‘(1) the projects for which the agency initiated preparation of an environmental impact statement or environmental assessment; 

‘‘(2) the projects for which the agency issued a record of decision or finding 

of no significant impact and the length of time it took the agency to complete 

the environmental review for each such project; 

‘‘(3) the filing of any lawsuits against the agency seeking judicial review of 

a permit, license, or approval issued by the agency for an action subject to 

NEPA, including the date the complaint was filed, the court in which the complaint was filed, and a summary of the claims for which judicial review was 

sought; and 

‘‘(4) the resolution of any lawsuits against the agency that sought judicial review of a permit, license, or approval issued by the agency for an action subject 

to NEPA. 

‘‘(l) LIMITATIONS ON CLAIMS.— 

‘‘(1) IN GENERAL.—Notwithstanding any other provision of law, a claim arising 

under Federal law seeking judicial review of a permit, license, or approval 

issued by a Federal agency for an action subject to NEPA shall be barred unless— 

‘‘(A) in the case of a claim pertaining to a project for which an environmental review was conducted and an opportunity for comment was provided, the claim is filed by a party that submitted a comment during the 

environmental review on the issue on which the party seeks judicial review, 

and such comment was sufficiently detailed to put the lead agency on notice 

of the issue upon which the party seeks judicial review; and 

‘‘(B) filed within 180 days after publication of a notice in the Federal Register announcing that the permit, license, or approval is final pursuant to 

the law under which the agency action is taken, unless a shorter time is 

specified in the Federal law pursuant to which judicial review is allowed. 

‘‘(2) NEW INFORMATION.—The preparation of a supplemental environmental 

impact statement, when required, is deemed a separate final agency action and 

the deadline for filing a claim for judicial review of such action shall be 180 

days after the date of publication of a notice in the Federal Register announcing 

the record of decision for such action. Any claim challenging agency action on 

the basis of information in a supplemental environmental impact statement 

shall be limited to challenges on the basis of that information. 

‘‘(3) RULE OF CONSTRUCTION.—Nothing in this subsection shall be construed 

to create a right to judicial review or place any limit on filing a claim that a 

person has violated the terms of a permit, license, or approval. 

‘‘(m) CATEGORIES OF PROJECTS.—The authorities granted under this subchapter 

may be exercised for an individual project or a category of projects. 

‘‘(n) EFFECTIVE DATE.—The requirements of this subchapter shall apply only to 

environmental reviews and environmental decisionmaking processes initiated after 

the date of enactment of this subchapter. 

‘‘(o) APPLICABILITY.—This subchapter applies, according to the provisions thereof, 

to all projects for which a Federal agency is required to undertake an environmental 


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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). 

review or make a decision under an environmental law for a project for which a Federal agency is undertaking an environmental review.’’. 

(b) TECHNICAL AMENDMENT.—The table of sections for chapter 5 of title 5, United 

States Code, is amended by inserting after the item relating to subchapter II the 

following: 

‘‘SUBCHAPTER IIA—INTERAGENCY COORDINATION REGARDING PERMITTING 

‘‘560. Coordination of agency administrative operations for efficient decisionmaking.’’. 

(c) REGULATIONS.— 

(1) COUNCIL ON ENVIRONMENTAL QUALITY.—Not later than 180 days after the 

date of enactment of this Act, the Council on Environmental Quality shall 

amend the regulations contained in part 1500 of title 40, Code of Federal Regulations, to implement the provisions of this Act and the amendments made by 

this Act, and shall by rule designate States with laws and procedures that satisfy the criteria under section 560(d)(2)(A) of title 5, United States Code. 

(2) FEDERAL AGENCIES.—Not later than 120 days after the date that the 

Council on Environmental Quality amends the regulations contained in part 

1500 of title 40, Code of Federal Regulations, to implement the provisions of 

this Act and the amendments made by this Act, each Federal agency with regulations implementing the National Environmental Policy Act of 1969 (42 U.S.C. 

4321 et seq.) shall amend such regulations to implement the provisions of this 

subchapter. 

Purpose and Summary 

H.R. 4377, the ‘‘Responsibly And Professionally Invigorating Development Act of 2012’’ (hereinafter, ‘‘the RAPID Act’’ or ‘‘the Bill’’) 

is bipartisan legislation that will encourage employers to create 

jobs by establishing a more transparent and efficient Federal permitting process through the Administrative Procedure Act (‘‘APA’’). 

The RAPID Act will streamline the Federal environmental review 

process established by the National Environmental Policy Act of 

1969 (‘‘NEPA’’) by drawing upon: definitions and established best 

practices under current NEPA regulations and guidance; recommendations from the President’s Council on Jobs and Competitiveness; Section 6002 of the ‘‘Safe, Accountable, Flexible, Efficient 

Transportation Equity Act: A Legacy for Users’’ (‘‘SAFETEA-LU’’), 

bipartisan legislation enacted in 2005 that easily passed the House; 

and, NEPA guidance and permit streamlining Presidential memoranda and Executive Orders recently issued by the Administration. 

Background and Need for the Legislation 

‘‘The problem at hand is the increasingly undue length of time 

it takes to conduct a 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 thirteen 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 


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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). 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). 

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] thought it could all 

be done in a year.’’ 4 A recent study, however, found that the average length of time to prepare an EIS is 3.4 years and gets longer 

each year, making the problem worse and worse.5

I. 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’’). In brief, 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 are significant environmental effects. 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 alterVerDate Mar 15 2010 22:33 Jul 17, 2012 Jkt 019006 PO 00000 Frm 00010 Fmt 6659 Sfmt 6601 E:\HR\OC\HR596P1.XXX HR596P1

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12 Alexander, note 8 supra, at 4; see also Robertson v. Methow Valley Citizens Council, 490 

U.S. 332, 350 (1989) (NEPA ‘‘does not mandate particular results, but simply prescribes the necessary process.’’). 13 Alexander, note 8 supra, at 4–5. 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’’). 

native.’’ 12 Regulations require robust public participation in this 

process, from the ‘‘scoping’’ stage where issues are identified, 

through drafting and in the final EIS, which should respond to 

comments made throughout. Public hearings may be utilized.13 Because NEPA does not create a cause of action, lawsuits challenging 

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

limitations.14

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 affect 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 

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; 


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20 Id. § 1501.7(a). 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). 

• 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

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 and Categorical Exclusions 

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 Generally, an EA ‘‘[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 


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31 Id. § 1508.9(b). 32 Id. § 1507.3(b). 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/NEPATask 

ForcelFinalRecommendations.pdf (last accessed June 25, 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 25, 2012). 37RAPID Act Hearing, note 1 supra, at 39 (Testimony of William Kovacs). 

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 or 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 

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 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 in direct investment; 

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—was 

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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 

(last accessed June 25, 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 25, 2012). 42See http://www.keystonepipeline-xl.state.gov/(last accessed June 25, 2012). 43See http://energycommerce.house.gov/keystonexl.shtml (last accessed June 25, 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. 

istration to decide the issue by February 21, 2012.38 On January 

18, the Administration announced the Keystone Pipeline XL permit 

would not be approved by February 21. On March 8, the Senate 

narrowly defeated an amendment to a transportation bill to override the President’s decision and approve the pipeline.39 On March 

22, 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 recently reapplied to build the full pipeline, 

which would run from Alberta to the Gulf of Mexico,41 and the U.S. 

Department of State has announced that it will 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 deliberately 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


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48RAPID Act Hearing, note 1 supra, at 56 (Testimony of William Kovacs). 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). 51RAPID Act Hearing, note 1 supra, at 55 (Testimony of William Kovacs). 52 109 P.L. 58, § 368. 53 Id. § 369. 54 Id. § 372. 55 Ibid. 

A. Examples of and Recommendations for NEPA Streamlining 

i. SAFETEA-LU 

‘‘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 of 

SAFETEA-LU, 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. SAFETEALU also established a 180-day statute of limitations to challenge a 

final agency action (e.g., permitting decision) related to the environmental review.49 A bipartisan bill co-sponsored by numerous 

Democrats, SAFETEA-LU passed the House 412 to 8. The Federal 

Highway Administration found Section 6002 has reduced the average NEPA review time almost by half, from 73 months to 36.85 

months.50 ‘‘The RAPID Act is very wisely modeled after’’ Section 

6002.51

ii. 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.52 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.’’ 53 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.’’ 54 The MOU was necessary, inter alia, 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.’’ 55


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56See note 35 supra. 57 Id., Recommendation 1.3. 58 Id., Recommendation 3.1. 59 Id., Recommendation 4.1. 60 Id., Recommendation 5.1. 61 Id., Recommendation 6.2. 62 ‘‘How We’re Meeting the Job Creation Challenge,’’ WALL STREET JOURNAL, June 13, 2011. 

iii. NEPA Task Force 

In July 2006 the House Resources Committee’s NEPA Task Force 

released its Final Report,56 with 20 recommendations based on 

input received at five field hearings and two more hearings in 

Washington, D.C., and on comments to the December 2005 draft 

report. Finding that ‘‘there are no time limits for any component 

of the NEPA process’’ because agencies have not ‘‘establish[ed] appropriate time limits for the [EIS] process’’ as the regulations require, the Final Report recommended that agencies have 18 

months to complete an EIS and 9 months to complete an EA.57 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.’’ 58 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.59 The Final Report recommended that agencies should 

have to consider only ‘‘reasonable’’ alternatives, defined as ‘‘those 

that are economically and technically feasible.’’ 60 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.’’ 61

iv. Jobs Council 

Recently, the President’s Jobs Council recommended permit 

streamlining as a strategy to create jobs. A June 2011 op-ed by Jeffrey Immelt, Chair of the Jobs Council and Chairman and CEO of 

General Electric, and Kenneth I. Chenault, Chairman and CEO of 

American Express, urged the President: ‘‘Streamline permitting. 

Cut red tape so job-creating construction and infrastructure 

projects can move forward. The administration can take a few simple steps to streamline the process of obtaining permits, without 

undercutting the protections that our regulatory system provides.’’ 62 The Jobs Council also observed that ‘‘[t]he current system 

for permitting and approving job-creating projects, which involves 

federal, state and local agencies, can lead to significant delays.’’ In 

June 2011 the Jobs Council made several relevant recommendations to the President: 

• Data collection and transparency; 

• Early stakeholder engagement; 

• Centralized monitoring and accountability for Federal agency performance; 

• Limiting duplication among local, state, and Federal agency 

reviews; 


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63 ‘‘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 25, 2012). 64 Available at http://files.jobs-council.com/jobscouncil/files/2011/10/JobsCouncillInterim 

ReportlOct11.pdf, p. 27 (last accessed June 25, 2012). 65 Available at http://files.jobs-council.com/files/2012/01/JobsCouncill2011YearEndReport 

Web.pdf, pp. 42–44 (last accessed June 25, 2012). 66Press 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 25, 2012). 67 Id. 68Press Release, ‘‘Obama Administration Announces Selection of 14 Infrastructure Projects to 

be Expedited Through Permitting and Environmental Review Process,’’ Oct. 11, 2011, available at http://www.whitehouse.gov/the-press-office/2011/10/11/obama-administration-announces-selection-14-infrastructure-projects-be-e (last accessed June 25, 2012). 69See http://permits.performance.gov/(last accessed June 25, 2012). 70 Exec. Order No. 13604, Improving Performance of Federal Permitting and Review of Infrastructure Projects, 77 Fed. Reg. 18887 (Mar. 28, 2012). 

• Improve litigation management.63

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.’’ 64 The Jobs Council’s year-end report also mentioned the importance of permit streamlining.65

v. 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.’’ 66 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.’’ 67 On October 11, the President announced 14 projects for 

expedited environmental review and permitting.68 These projects 

are tracked online by the Federal Infrastructure Projects Dashboard (‘‘Dashboard’’), which was created pursuant to the August 31 

Presidential Memorandum.69 On March 22, 2012, the President 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.’’ 70 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; 


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71See http://permits.performance.gov/sites/default/files/FederallInfrastructurelPlan.pdf (last 

accessed June 25, 2012). 72RAPID Act Hearing, note 1 supra, at 57 (Testimony of William Kovacs). 73See http://permits.performance.gov/news-and-updates (last accessed June 25, 2012). 74 Id. at 42–60. 

• Institutionalizing use of the Dashboard, working with the 

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

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

• Identifying timeframes and Member Agency responsibilities 

for the implementation of each proposed action. 

The Federal Plan since has been released 71 and contains numerous suggestions that are consistent with both the goals identified 

in the President’s Executive Order and suggestions made at the 

Subcommittee’s April 25 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.’’ 72 Environmental review already has been completed, permits have been issued, and construction has begun on several of 

these projects.73

IV. LEGISLATIVE HISTORY OF H.R. 4377

On April 25, 2012, Messrs. Kovacs, Bauman and Margro testified 

before the Subcommittee on Courts, Commercial and Administrative Law in support of the RAPID Act; Ms. Bear testified against 

it. 

In summary, Mr. Kovacs, who is Senior Vice President for Environment, Technology & Regulatory Affairs at the U.S. Chamber of 

Commerce, discussed the findings of the March 2011 study 

Progress Denied: A Study on the Potential Economic Impact of Permitting Challenges Facing Proposed Energy Projects; described how 

the NEPA process has become an impediment to job creation and 

economic growth and how the Bill would correct this; and, discussed how permit streamlining has enjoyed broad support, at least 

in principle, from members of both parties and from the Administration.74 Drawing on his experience as an environmental attorney, 

Mr. Bauman described how today’s NEPA process does not resemble what was originally envisioned, and testified that the RAPID 

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75 Id. at 61. 76 Id. at 67. 77 Id. at 68. 78 Id. at 197. 79 Id. at 80–81. But see id. at 199 (Testimony of Thomas Margro) (‘‘My experience with TCA 

and working for transit agencies in the past is that because there are no limitations on the 

NEPA process, resource agencies feel unconstrained in raising issues or requesting studies on 

a piecemeal basis often without considering whether the issues were already addressed or 

whether the agency requesting the information has any rational basis for doing so.’’). 80See, e.g., id. at 82–83 (objecting to requiring lead agencies to accept environmental documents from project sponsors and to allowing lead agencies to accept contributions of funds from 

project sponsors, per Subsection (c) to the new Section 560, 5 U.S.C.); id. at 83–84 (stating that 

Subsection (d)(1)(A) could be interpreted not to allow supplemental and court-ordered environmental documents); id. at 84–85 (objecting to requiring agencies to accept certain state environmental documents, per Subsection (d)(2)); id. at 85 (criticizing the as too short a 30-day comment period on supplements to state environmental documents under Subsection (d)(2)(D)); ibid. 

(regarding Subsection (e)(3): ‘‘Unlike the CEQ regulations, there are no references to county and 

tribal governments that ‘may have an interest in the project.’’’); id. at 86 (criticizing as unclear 

the language of Subsection (e)(4), prohibiting an agency that declines an invitation to become 

a participating agency from ‘‘taking any measures to oppose the project’’); id. at 86–87 (regarding Subsection (g)(4): ‘‘Alternatives must reflect the agency’s purpose and need. . . .’’); id. at 

89 (criticizing the wording of Subsection (i)(4)). These concerns are addressed in the corresponding sections of the Bill, as ordered reported. 

ess without undercutting the law’s environmental review elements.’’ 75

Mr. Margro, an engineer, discussed how the RAPID Act would 

improve the Federal environmental review and permitting process 

in light of his personal experience with attempting to build a 16- 

mile toll road in Orange County, Calif. This project would create 

over 17,000 jobs, would generate $3 billion in economic output and 

create almost $160 million in State and local tax revenues, and requires no Federal funding—but after 15 years under review the 

road still is not built.76 Ten years into the environmental review, 

‘‘[w]hen the [Transportation Corridor Agencies] applied for the consistency certification under the Coastal Zone Management Act, 

project opponents objected to the project and produced a study disputing the previous 10 years of analysis by the collaborative. At 

this point, both the EPA and Army Corps questioned the preferred 

alternative that they had previously selected and asserted the need 

for additional environmental studies and reopened the debate concerning other alternatives.’’ 77 ‘‘If H.R. 4377 was the law when we 

were planning the 241 Toll Road, the road likely would be built 

and the public would have the benefit of a critical alternative to 

the traffic-choked Interstate-5 in South Orange County.’’ 78

Ms. Bear, who served for 25 years as General Counsel to the 

CEQ, testified that the environmental review process itself is much 

less of an impediment to permitting and construction than lack of 

adequate staffing and resources at Federal agencies.79 Ms. Bear 

also voiced specific concerns with the drafting of the RAPID Act, 

many of which were addressed in the Manager’s Amendment 

adopted by voice vote of the Full Committee on June 6, 2012.80

Hearings 

The Subcommittee on Courts, Commercial and Administrative 

Law held a hearing on H.R. 4377, on Wednesday, April 25, 2012. 

The Subcommittee received two letters in opposition to the RAPID 

Act, from: Nancy Sutley, Chair of CEQ; and, representatives of 26 

organizations (e.g., Earthjustice, Center for Biological Diversity, 

Natural Resources Defense Council, etc.). 


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Committee Consideration 

On June 6, 2012, the Committee met in open session and ordered 

the bill H.R. 4377 favorably reported with amendment, by a rollcall 

vote of 14 to 8, 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. 

4377. 

1. Amendment #3 to the Ross Amendment in the Nature of a 

Substitute (‘‘Ross Amendment’’), offered by Mr. Johnson, to exempt 

from the Bill any regulation that the CEQ determines has a detrimental impact on human health. Not agreed to by a vote of 10 to 

13. 

ROLLCALL NO. 1 

Ayes Nays Present 

Mr. Smith, Chairman ............................................................................. X 

Mr. Sensenbrenner, Jr. ........................................................................... X 

Mr. Coble ................................................................................................

Mr. Gallegly ............................................................................................

Mr. Goodlatte .........................................................................................

Mr. Lungren ............................................................................................

Mr. Chabot .............................................................................................

Mr. Issa ..................................................................................................

Mr. Pence ...............................................................................................

Mr. Forbes .............................................................................................. X 

Mr. King ................................................................................................. X 

Mr. Franks .............................................................................................. X 

Mr. Gohmert ...........................................................................................

Mr. Jordan ..............................................................................................

Mr. Poe ...................................................................................................

Mr. Chaffetz ........................................................................................... X 

Mr. Griffin .............................................................................................. X 

Mr. Marino .............................................................................................. X 

Mr. Gowdy .............................................................................................. X 

Mr. Ross ................................................................................................. X 

Ms. Adams ............................................................................................. X 

Mr. Quayle .............................................................................................. X 

Mr. Amodei ............................................................................................. X 

Mr. Conyers, Jr., Ranking Member ......................................................... X 

Mr. Berman ............................................................................................

Mr. Nadler ..............................................................................................

Mr. Scott ................................................................................................ X 

Mr. Watt ................................................................................................. X 

Ms. Lofgren ............................................................................................

Ms. Jackson Lee ..................................................................................... X 

Ms. Waters .............................................................................................

Mr. Cohen ............................................................................................... X 

Mr. Johnson, Jr. ...................................................................................... X 


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ROLLCALL NO. 1—Continued 

Ayes Nays Present 

Mr. Pierluisi ............................................................................................ X 

Mr. Quigley .............................................................................................

Ms. Chu ..................................................................................................

Mr. Deutch ............................................................................................. X 

Ms. Sa ́ nchez ........................................................................................... X 

Mr. Polis ................................................................................................. X 

Total ..................................................................................... 10 13 

2. Amendment #2 to the Ross Amendment, offered by Mr. Conyers, to add a rule of construction clarifying that nothing in the Bill 

shall have the effect of changing or limiting any law or regulation 

that requires or provides for public comment or public participation 

in an agency decision making process. Not agreed to by a vote of 

12 to 13. 

ROLLCALL NO. 2 

Ayes Nays Present 

Mr. Smith, Chairman ............................................................................. X 

Mr. Sensenbrenner, Jr. ........................................................................... X 

Mr. Coble ................................................................................................

Mr. Gallegly ............................................................................................

Mr. Goodlatte .........................................................................................

Mr. Lungren ............................................................................................

Mr. Chabot .............................................................................................

Mr. Issa ..................................................................................................

Mr. Pence ...............................................................................................

Mr. Forbes .............................................................................................. X 

Mr. King ................................................................................................. X 

Mr. Franks .............................................................................................. X 

Mr. Gohmert ...........................................................................................

Mr. Jordan ..............................................................................................

Mr. Poe ...................................................................................................

Mr. Chaffetz ........................................................................................... X 

Mr. Griffin .............................................................................................. X 

Mr. Marino .............................................................................................. X 

Mr. Gowdy .............................................................................................. X 

Mr. Ross ................................................................................................. X 

Ms. Adams ............................................................................................. X 

Mr. Quayle .............................................................................................. X 

Mr. Amodei ............................................................................................. X 

Mr. Conyers, Jr., Ranking Member ......................................................... X 

Mr. Berman ............................................................................................

Mr. Nadler .............................................................................................. X 

Mr. Scott ................................................................................................ X 

Mr. Watt ................................................................................................. X 

Ms. Lofgren ............................................................................................

Ms. Jackson Lee ..................................................................................... X 


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ROLLCALL NO. 2—Continued 

Ayes Nays Present 

Ms. Waters .............................................................................................

Mr. Cohen ............................................................................................... X 

Mr. Johnson, Jr. ...................................................................................... X 

Mr. Pierluisi ............................................................................................ X 

Mr. Quigley ............................................................................................. X 

Ms. Chu ..................................................................................................

Mr. Deutch ............................................................................................. X 

Ms. Sa ́ nchez ........................................................................................... X 

Mr. Polis ................................................................................................. X 

Total ..................................................................................... 12 13 

3. Amendment #4 to the Ross Amendment, offered by Mr. Nadler, to exempt from the Bill any project that pertains to the safety 

of a nuclear reactor or that pertains to nuclear safety. Not agreed 

to by a vote of 12 to 13. 

ROLLCALL NO. 3 

Ayes Nays Present 

Mr. Smith, Chairman ............................................................................. X 

Mr. Sensenbrenner, Jr. ........................................................................... X 

Mr. Coble ................................................................................................

Mr. Gallegly ............................................................................................

Mr. Goodlatte .........................................................................................

Mr. Lungren ............................................................................................

Mr. Chabot .............................................................................................

Mr. Issa ..................................................................................................

Mr. Pence ...............................................................................................

Mr. Forbes .............................................................................................. X 

Mr. King ................................................................................................. X 

Mr. Franks .............................................................................................. X 

Mr. Gohmert ...........................................................................................

Mr. Jordan ..............................................................................................

Mr. Poe ...................................................................................................

Mr. Chaffetz ........................................................................................... X 

Mr. Griffin .............................................................................................. X 

Mr. Marino .............................................................................................. X 

Mr. Gowdy .............................................................................................. X 

Mr. Ross ................................................................................................. X 

Ms. Adams ............................................................................................. X 

Mr. Quayle .............................................................................................. X 

Mr. Amodei ............................................................................................. X 

Mr. Conyers, Jr., Ranking Member ......................................................... X 

Mr. Berman ............................................................................................

Mr. Nadler .............................................................................................. X 

Mr. Scott ................................................................................................ X 

Mr. Watt ................................................................................................. X 

Ms. Lofgren ............................................................................................


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ROLLCALL NO. 3—Continued 

Ayes Nays Present 

Ms. Jackson Lee ..................................................................................... X 

Ms. Waters .............................................................................................

Mr. Cohen ............................................................................................... X 

Mr. Johnson, Jr. ...................................................................................... X 

Mr. Pierluisi ............................................................................................ X 

Mr. Quigley ............................................................................................. X 

Ms. Chu ..................................................................................................

Mr. Deutch ............................................................................................. X 

Ms. Sa ́ nchez ........................................................................................... X 

Mr. Polis ................................................................................................. X 

Total ..................................................................................... 12 13 

4. Amendment #5 to the Ross Amendment, offered by Ms. Jackson Lee, to order a GAO study on the amount of time required for 

projects that required approval by a permit or regulatory decision 

by a Federal agency to complete environmental review under 

NEPA during the four calendar years prior to the date of enactment. Not agreed to by a vote of 11 to 12. 

ROLLCALL NO. 4 

Ayes Nays Present 

Mr. Smith, Chairman ............................................................................. X 

Mr. Sensenbrenner, Jr. ...........................................................................

Mr. Coble ................................................................................................

Mr. Gallegly ............................................................................................

Mr. Goodlatte .........................................................................................

Mr. Lungren ............................................................................................

Mr. Chabot .............................................................................................

Mr. Issa ..................................................................................................

Mr. Pence ...............................................................................................

Mr. Forbes .............................................................................................. X 

Mr. King ................................................................................................. X 

Mr. Franks .............................................................................................. X 

Mr. Gohmert ...........................................................................................

Mr. Jordan ..............................................................................................

Mr. Poe ...................................................................................................

Mr. Chaffetz ........................................................................................... X 

Mr. Griffin .............................................................................................. X 

Mr. Marino .............................................................................................. X 

Mr. Gowdy .............................................................................................. X 

Mr. Ross ................................................................................................. X 

Ms. Adams ............................................................................................. X 

Mr. Quayle .............................................................................................. X 

Mr. Amodei ............................................................................................. X 

Mr. Conyers, Jr., Ranking Member ......................................................... X 

Mr. Berman ............................................................................................

Mr. Nadler ..............................................................................................


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ROLLCALL NO. 4—Continued 

Ayes Nays Present 

Mr. Scott ................................................................................................ X 

Mr. Watt ................................................................................................. X 

Ms. Lofgren ............................................................................................

Ms. Jackson Lee ..................................................................................... X 

Ms. Waters .............................................................................................

Mr. Cohen ............................................................................................... X 

Mr. Johnson, Jr. ...................................................................................... X 

Mr. Pierluisi ............................................................................................ X 

Mr. Quigley ............................................................................................. X 

Ms. Chu ..................................................................................................

Mr. Deutch ............................................................................................. X 

Ms. Sa ́ nchez ........................................................................................... X 

Mr. Polis ................................................................................................. X 

Total ..................................................................................... 11 12 

5. Amendment #6 to the Ross Amendment, offered by Mr. 

Cohen, to strike the creation of a new subchapter under the Administrative Procedure Act and redraft the Bill as freestanding legislative language. Not agreed to by a vote of 9 to 10. 

ROLLCALL NO. 5 

Ayes Nays Present 

Mr. Smith, Chairman ............................................................................. X 

Mr. Sensenbrenner, Jr. ...........................................................................

Mr. Coble ................................................................................................

Mr. Gallegly ............................................................................................ X 

Mr. Goodlatte .........................................................................................

Mr. Lungren ............................................................................................

Mr. Chabot .............................................................................................

Mr. Issa ..................................................................................................

Mr. Pence ...............................................................................................

Mr. Forbes .............................................................................................. X 

Mr. King ................................................................................................. X 

Mr. Franks .............................................................................................. X 

Mr. Gohmert ...........................................................................................

Mr. Jordan ..............................................................................................

Mr. Poe ...................................................................................................

Mr. Chaffetz ...........................................................................................

Mr. Griffin ..............................................................................................

Mr. Marino .............................................................................................. X 

Mr. Gowdy .............................................................................................. X 

Mr. Ross ................................................................................................. X 

Ms. Adams ............................................................................................. X 

Mr. Quayle .............................................................................................. X 

Mr. Amodei .............................................................................................

Mr. Conyers, Jr., Ranking Member ......................................................... X 

Mr. Berman ............................................................................................


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ROLLCALL NO. 5—Continued 

Ayes Nays Present 

Mr. Nadler ..............................................................................................

Mr. Scott ................................................................................................ X 

Mr. Watt ................................................................................................. X 

Ms. Lofgren ............................................................................................

Ms. Jackson Lee ..................................................................................... X 

Ms. Waters .............................................................................................

Mr. Cohen ............................................................................................... X 

Mr. Johnson, Jr. ...................................................................................... X 

Mr. Pierluisi ............................................................................................ X 

Mr. Quigley ............................................................................................. X 

Ms. Chu ..................................................................................................

Mr. Deutch .............................................................................................

Ms. Sa ́ nchez ...........................................................................................

Mr. Polis ................................................................................................. X 

Total ..................................................................................... 9 10 

6. Motion to report H.R. 4377, as amended, favorably to the 

House. Agreed to by a vote of 14 to 8. 

ROLLCALL NO. 6 

Ayes Nays Present 

Mr. Smith, Chairman ............................................................................. X 

Mr. Sensenbrenner, Jr. ...........................................................................

Mr. Coble ................................................................................................

Mr. Gallegly ............................................................................................ X 

Mr. Goodlatte .........................................................................................

Mr. Lungren ............................................................................................ X 

Mr. Chabot ............................................................................................. X 

Mr. Issa ..................................................................................................

Mr. Pence ...............................................................................................

Mr. Forbes .............................................................................................. X 

Mr. King ................................................................................................. X 

Mr. Franks .............................................................................................. X 

Mr. Gohmert ...........................................................................................

Mr. Jordan ..............................................................................................

Mr. Poe ...................................................................................................

Mr. Chaffetz ........................................................................................... X 

Mr. Griffin .............................................................................................. X 

Mr. Marino .............................................................................................. X 

Mr. Gowdy .............................................................................................. X 

Mr. Ross ................................................................................................. X 

Ms. Adams ............................................................................................. X 

Mr. Quayle .............................................................................................. X 

Mr. Amodei .............................................................................................

Mr. Conyers, Jr., Ranking Member ......................................................... X 

Mr. Berman ............................................................................................

Mr. Nadler ..............................................................................................


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ROLLCALL NO. 6—Continued 

Ayes Nays Present 

Mr. Scott ................................................................................................ X 

Mr. Watt ................................................................................................. X 

Ms. Lofgren ............................................................................................

Ms. Jackson Lee ..................................................................................... X 

Ms. Waters .............................................................................................

Mr. Cohen ............................................................................................... X 

Mr. Johnson, Jr. ...................................................................................... X 

Mr. Pierluisi ............................................................................................ X 

Mr. Quigley ............................................................................................. X 

Ms. Chu ..................................................................................................

Mr. Deutch .............................................................................................

Ms. Sa ́ nchez ...........................................................................................

Mr. Polis .................................................................................................

Total ..................................................................................... 14 8 

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. 4377, the following estimate and comparison prepared 

by the Director of the Congressional Budget Office under section 

402 of the Congressional Budget Act of 1974: 

U.S. CONGRESS, 

CONGRESSIONAL BUDGET OFFICE, 

Washington, DC, June 25, 2012. 

Hon. LAMAR SMITH, 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. 4377, the ‘‘Responsibility 

and Professionally Invigorating Development Act of 2012.’’ 


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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. 4377—Responsibility and Professionally Invigorating 

Development Act of 2012. 

As ordered reported by the House Committee on the Judiciary 

on June 6, 2012. 

SUMMARY

H.R. 4377 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 five years, assuming the availability of appropriated funds, as Federal agencies would incur additional administrative costs to meet the new requirements imposed by H.R. 4377. 

Additional Federal expenditures also would occur if agencies face 

legal challenges as a result of the bill’s implementation. In the long 

term, 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. 4377 would not affect direct spending or revenues; 

therefore, pay-as-you-go procedures do not apply. 

H.R. 4377 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act. 

MAJOR PROVISIONS

Under NEPA, Federal agencies are required to assess the environmental consequences of an action and its alternatives before 

proceeding. The affected Federal agencies are required to consult 

with other interested agencies, document analysis, 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 conVerDate Mar 15 2010 22:33 Jul 17, 2012 Jkt 019006 PO 00000 Frm 00027 Fmt 6659 Sfmt 6601 E:\HR\OC\HR596P1.XXX HR596P1

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struction 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 if they are 

later reviewed and approved by the Federal agency leading 

those reviews; 

• Require agencies to join a multiagency NEPA review process 

as a participant 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 two-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 in 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 the NEPA review, but it 

also would impose some new requirements. CBO expects that some 

Federal agencies would issue new regulations and guidelines to 

meet the new requirements and deadlines imposed by this bill and, 

consequently, would be required to devote more personnel and 

technical resources to implement 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 


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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 

five 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 

claims concerning NEPA that are 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. 4377 would affect the NEPA 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 

cannot estimate the level of spending that would occur, however. 

COST OF FEDERAL CONSTRUCTION PROJECTS

H.R. 4377 also could affect Federal spending for construction 

projects, but CBO has no basis for estimating the timing or magnitude of the net impact on Federal construction costs. On the one 

hand, to the extent that implementing H.R. 4377 would successfully streamline the NEPA review process, the time line for completing Federal construction projects would be accelerated, and 

over the long term, Federal agencies would realize efficiencies and 

ultimately savings in construction and administrative costs. On the 

other hand, if enacting this legislation leads to short-term delays 

in completing Federal construction projects over the next five years 

due to increased litigation, those efficiencies would not be gained 

immediately. 

STAFF CONTACTS

The CBO staff contact for this estimate is Susanne S. Mehlman. 

The estimate was approved by Theresa Gullo, Deputy Assistant Director for Budget Analysis. 

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. 4377 will encourage job creation by establishing a more transparent and efficient Federal permitting process. 

Advisory on Earmarks 

In accordance with clause 9 of rule XXI of the Rules of the House 

of Representatives, H.R. 4377 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. 


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81RAPID Act Hearing, note 1 supra, at 198 (Testimony of Thomas Margro) (‘‘Protections are 

currently in place under NEPA and its implementing regulations, and would remain in place 

under H.R. 4377, to protect against conflicts of interest.’’). 82See, e.g., ibid. (The California Environmental Quality Act ‘‘provides for a thorough consideration of the environmental impacts of a project and the identification of mitigation measures 

that are equivalent to NEPA. Moreover, as a law that requires project sponsors to mitigate environmental impacts, CEQA is even more stringent than NEPA, which is simply a procedural statute.’’). 

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 2012’’ or as the ‘‘RAPID Act.’’ 

Sec. 2(a): Coordination of Agency Administrative Operations for 

Efficient Decisionmaking. Subsection (a) to the new Section 560, 5 

U.S.C., declares that the purpose of the Bill is to establish a framework to increase efficiency in the Federal permitting process. Because the Administrative Procedure Act coordinates agency action 

in other respects, it is fitting that it also should coordinate agency 

permitting decisions, a major component of which is the environmental review process. Subsection (b) contains definitions of terms 

used in the Bill, drawing upon NEPA regulations. Subsection (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.81

Subsection (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.82 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 (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 within 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 a 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 


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83 Cf. RAPID Act Hearing, note 1 supra, at 88 (Testimony of Dinah Bear) (‘‘These time periods 

are within the realm of the reasonable in many cases 747if, importantly, an agency has adequate reasons to implement NEPA and all other environmental laws that may be implicated 

in a proposed action.’’). 84 NEPA regulations allow agencies to set comment periods of 45 days for a draft EIS and 

30 days for a final EIS. See 40 C.F.R. § 1506.10. 

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 (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 (g) requires the lead agency and the cooperating agencies to begin the scoping process ‘‘as early as practicable.’’ The lead 

agency ultimately is responsible for determining the range of alternatives to be evaluated. When making a decision under the project, 

no agency should evaluate an alternative that was not evaluated 

in the environmental study document. Cooperating agencies should 

only evaluate those alternatives that are ‘‘technically and economically feasible’’ for the project sponsor to undertake, and the methodologies should be developed collaboratively between the lead and 

cooperating agencies and published in the environmental document. An alternative that does not meet the project’s purpose and 

need should not be evaluated. The lead agency may give a greater 

degree of analysis to a preferred alternative, and the analysis of 

each alternative shall include its potential effects on employment. 

Under Subsection (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 (i)(1) sets reasonable deadlines to complete the environmental review.83 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 among 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 

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lowed by agreement among the lead agency, all participating agencies, and the project sponsor, or for good cause in the lead agency’s 

judgment. 

Subsection (i)(4) sets reasonable deadlines for agencies to make 

permitting decisions. These timelines do not begin to run until all 

relevant agency review on the project—including the environmental 

review, per the applicable deadlines established by Subsection 

(i)(1)—is complete. Thus, no permit would ever be issued, by default or otherwise, until the relevant agency review and analysis 

has been performed. If the decision must be made before the record 

of decision is published, then the agency has 90 days beginning 

after all other relevant agency review related to the project is complete and after the lead agency publishes the final environmental 

impact statement, to make the decision, finding or approval. Otherwise, the agency has 180 days beginning after all other relevant 

agency review related to the project is complete and after the 

record of decision is published to make the decision, finding or approval, with extensions not to exceed 1 year from when the record 

of decision was published. If the agency does not decide within 

these timeframes, then the project or permit is deemed approved. 

The default approval is not appealable within the agency, and the 

mere fact that an approval was obtained by default cannot be used 

to support an APA lawsuit challenging the permitting decision as 

arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, or unsupported by substantial evidence. A default approval still could be challenged under the APA on other 

grounds, however. 

Subsection (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 (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 (m) allows the Bill’s process to apply to individual 

projects or to categories of projects. Per Subsections (n) and (o), the 

Bill does not apply retroactively, only prospectively, to all projects 

for which an agency is required to undertake an environmental review or to make a decision that is based upon an environmental 

review. 

Sec. 2(b). Makes technical amendments to the U.S. Code. 


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Sec. 2(c). Requires the CEQ to issue implementing regulations 

within 180 days of enactment, and agencies to amend their regulations within 120 days thereafter. 

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3(e) of rule XIII of the Rules of the 

House of Representatives, changes in existing law made by the bill, 

as reported, are shown as follows (new matter is printed in italics 

and existing law in which no change is proposed is shown in 

roman): 

TITLE 5, UNITED STATES CODE 

PART I—THE AGENCIES GENERALLY 

* * * * * * * 

CHAPTER 5—ADMINISTRATIVE PROCEDURE 

SUBCHAPTER I—GENERAL PROVISIONS 

Sec. 

500. Administrative practice; general provisions. 

* * * * * * * 

SUBCHAPTER II—ADMINISTRATIVE PROCEDURE 

551. Definitions. 

* * * * * * * 

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— 


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(A) briefly provide sufficient evidence and analysis for 

determining whether to prepare an environmental impact 

statement or a finding of no significant impact; 

(B) aid an agency’s compliance with NEPA when no 

environmental impact statement is necessary; and 

(C) facilitate preparation of an environmental impact 

statement when one is necessary; 

(4) ‘‘environmental impact statement’’ means the detailed 

statement of significant environmental impacts required to be 

prepared under NEPA; 

(5) ‘‘environmental review’’ means the Federal agency procedures for preparing an environmental impact statement, environmental assessment, categorical exclusion, or other document 

under NEPA; 

(6) ‘‘environmental decisionmaking process’’ means the Federal agency procedures for undertaking and completion of any 

environmental permit, decision, approval, review, or study 

under any Federal law other than NEPA for a project subject 

to an environmental review; 

(7) ‘‘environmental document’’ means an environmental assessment or environmental impact statement, and includes any 

supplemental document or document prepared pursuant to a 

court order; 

(8) ‘‘finding of no significant impact’’ means a document by 

a Federal agency briefly presenting the reasons why a project, 

not otherwise subject to a categorical exclusion, will not have a 

significant effect on the human environment and for which an 

environmental impact statement therefore will not be prepared; 

(9) ‘‘lead agency’’ means the Federal agency preparing or responsible for preparing the environmental document; 

(10) ‘‘NEPA’’ means the National Environmental Policy Act 

of 1969 (42 U.S.C. 4321 et seq.); 

(11) ‘‘project’’ means major Federal actions that are construction activities undertaken with Federal funds or that are 

construction activities that require approval by a permit or regulatory decision issued by a Federal agency; 

(12) ‘‘project sponsor’’ means the agency or other entity, including any private or public-private entity, that seeks approval 

for a project or is otherwise responsible for undertaking a 

project; and 

(13) ‘‘record of decision’’ means a document prepared by a 

lead agency under NEPA following an environmental impact 

statement that states the lead agency’s decision, identifies the 

alternatives considered by the agency in reaching its decision 

and states whether all practicable means to avoid or minimize 

environmental harm from the alternative selected have been 

adopted, and if not, why they were not adopted. 

(c) PREPARATION OF ENVIRONMENTAL DOCUMENTS.—Upon the 

request of the lead agency, the project sponsor shall be authorized 

to prepare any document for purposes of an environmental review 

required in support of any project or approval by the lead agency 

if the lead agency furnishes oversight in such preparation and independently evaluates such document and the document is approved 

and adopted by the lead agency prior to taking any action or making any approval based on such document. 


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(d) ADOPTION AND USE OF DOCUMENTS.— (1) DOCUMENTS PREPARED UNDER NEPA.— (A) Not more than 1 environmental impact statement 

and 1 environmental assessment shall be prepared under 

NEPA for a project (except for supplemental environmental 

documents prepared under NEPA or environmental documents prepared pursuant to a court order), and, except as 

otherwise provided by law, the lead agency shall prepare 

the environmental impact statement or environmental assessment. After the lead agency issues a record of decision, 

no Federal agency responsible for making any approval for 

that project may rely on a document other than the environmental document prepared by the lead agency. 

(B) Upon the request of a project sponsor, a lead agency may adopt, use, or rely upon secondary and cumulative 

impact analyses included in any environmental document 

prepared under NEPA for projects in the same geographic 

area where the secondary and cumulative impact analyses 

provide information and data that pertains to the NEPA 

decision for the project under review. 

(2) STATE ENVIRONMENTAL DOCUMENTS; SUPPLEMENTAL

DOCUMENTS.— (A) Upon the request of a project sponsor, a lead agency 

may adopt a document that has been prepared for a project 

under State laws and procedures as the environmental impact statement or environmental assessment for the project, 

provided that the State laws and procedures under which 

the document was prepared provide environmental protection and opportunities for public involvement that are substantially equivalent to NEPA. 

(B) An environmental document adopted under subparagraph (A) is deemed to satisfy the lead agency’s obligation under NEPA to prepare an environmental impact 

statement or environmental assessment. 

(C) In the case of a document described in subparagraph (A), during the period after preparation of the document but before its adoption by the lead agency, the lead 

agency shall prepare and publish a supplement to that document if the lead agency determines that— 

(i) a significant change has been made to the 

project that is relevant for purposes of environmental 

review of the project; or 

(ii) there have been significant changes in circumstances or availability of information relevant to 

the environmental review for the project. 

(D) If the agency prepares and publishes a supplemental document under subparagraph (C), the lead agency 

may solicit comments from agencies and the public on the 

supplemental document for a period of not more than 45 

days beginning on the date of the publication of the supplement. 

(E) A lead agency shall issue its record of decision or 

finding of no significant impact, as appropriate, based 

upon the document adopted under subparagraph (A), and 

any supplements thereto. 


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(3) CONTEMPORANEOUS PROJECTS.—If the lead agency determines that there is a reasonable likelihood that the project 

will have similar environmental impacts as a similar project in 

geographical proximity to the project, and that similar project 

was subject to environmental review or similar State procedures 

within the 5 year period immediately preceding the date that 

the lead agency makes that determination, the lead agency may 

adopt the environmental document that resulted from that environmental review or similar State procedure. The lead agency 

may adopt such an environmental document, if it is prepared 

under State laws and procedures only upon making a favorable 

determination on such environmental document pursuant to 

paragraph (2)(A). 

(e) PARTICIPATING AGENCIES.— (1) IN GENERAL.—The lead agency shall be responsible for 

inviting and designating participating agencies in accordance 

with this subsection. The lead agency shall provide the invitation or notice of the designation in writing. 

(2) FEDERAL PARTICIPATING AGENCIES.—Any Federal agency that is required to adopt the environmental document of the 

lead agency for a project shall be designated as a participating 

agency and shall collaborate on the preparation of the environmental document, unless the Federal agency informs the lead 

agency, in writing, by a time specified by the lead agency in the 

designation of the Federal agency that the Federal agency— 

(A) has no jurisdiction or authority with respect to the 

project; 

(B) has no expertise or information relevant to the 

project; and 

(C) does not intend to submit comments on the project. 

(3) INVITATION.—The lead agency shall identify, as early as 

practicable in the environmental review for a project, any agencies other than an agency described in paragraph (2) that may 

have an interest in the project, including, where appropriate, 

Governors of affected States, and heads of appropriate tribal 

and local (including county) governments, and shall invite such 

identified agencies and officials to become participating agencies in the environmental review for the project. The invitation 

shall set a deadline of 30 days for responses to be submitted, 

which may only be extended by the lead agency for good cause 

shown. Any agency that fails to respond prior to the deadline 

shall be deemed to have declined the invitation. 

(4) EFFECT OF DECLINING PARTICIPATING AGENCY INVITATION.—Any agency that declines a designation or invitation by 

the lead agency to be a participating agency shall be precluded 

from submitting comments on any document prepared under 

NEPA for that project or taking any measures to oppose, based 

on the environmental review, any permit, license, or approval 

related to that project. 

(5) EFFECT OF DESIGNATION.—Designation as a participating agency under this subsection does not imply that the 

participating agency— 

(A) supports a proposed project; or 

(B) has any jurisdiction over, or special expertise with 

respect to evaluation of, the project. 


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(6) COOPERATING AGENCY.—A participating agency may 

also be designated by a lead agency as a ‘‘cooperating agency’’ 

under the regulations contained in part 1500 of title 40, Code 

of Federal Regulations, as in effect on January 1, 2011. Designation as a cooperating agency shall have no effect on designation as participating agency. No agency that is not a participating agency may be designated as a cooperating agency. 

(7) CONCURRENT REVIEWS.—Each Federal agency shall— 

(A) carry out obligations of the Federal agency under 

other applicable law concurrently and in conjunction with 

the review required under NEPA; and 

(B) in accordance with the rules made by the Council 

on Environmental Quality pursuant to subsection (n)(1), 

make and carry out such rules, policies, and procedures as 

may be reasonably necessary to enable the agency to ensure 

completion of the environmental review and environmental 

decisionmaking process in a timely, coordinated, and environmentally responsible manner. 

(8) COMMENTS.—Each participating agency shall limit its 

comments on a project to areas that are within the authority 

and expertise of such participating agency. Each participating 

agency shall identify in such comments the statutory authority 

of the participating agency pertaining to the subject matter of 

its comments. The lead agency shall not act upon, respond to 

or include in any document prepared under NEPA, any comment submitted by a participating agency that concerns matters 

that are outside of the authority and expertise of the commenting participating agency. 

(f) PROJECT INITIATION REQUEST.— 

(1) NOTICE.—A project sponsor shall provide the Federal 

agency responsible for undertaking a project with notice of the 

initiation of the project by providing a description of the proposed project, the general location of the proposed project, and 

a statement of any Federal approvals anticipated to be necessary for the proposed project, for the purpose of informing the 

Federal agency that the environmental review should be initiated. 

(2) LEAD AGENCY INITIATION.—The agency receiving a 

project initiation notice under paragraph (1) shall promptly 

identify the lead agency for the project, and the lead agency 

shall initiate the environmental review within a period of 45 

days after receiving the notice required by paragraph (1) by inviting or designating agencies to become participating agencies, 

or, where the lead agency determines that no participating 

agencies are required for the project, by taking such other actions that are reasonable and necessary to initiate the environmental review. 

(g) ALTERNATIVES ANALYSIS.— 

(1) PARTICIPATION.—As early as practicable during the environmental review, but no later than during scoping for a 

project requiring the preparation of an environmental impact 

statement, the lead agency shall provide an opportunity for involvement by cooperating agencies in determining the range of 

alternatives to be considered for a project. 


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(2) RANGE OF ALTERNATIVES.—Following participation 

under paragraph (1), the lead agency shall determine the range 

of alternatives for consideration in any document which the 

lead agency is responsible for preparing for the project, subject 

to the following limitations: 

(A) NO EVALUATION OF CERTAIN ALTERNATIVES.—No 

Federal agency shall evaluate any alternative that was 

identified but not carried forward for detailed evaluation in 

an environmental document or evaluated and not selected 

in any environmental document prepared under NEPA for 

the same project. 

(B) ONLY FEASIBLE ALTERNATIVES EVALUATED.—Where 

a project is being constructed, managed, funded, or undertaken by a project sponsor that is not a Federal agency, 

Federal agencies shall only be required to evaluate alternatives that the project sponsor could feasibly undertake, 

consistent with the purpose of and the need for the project, 

including alternatives that can be undertaken by the project 

sponsor and that are technically and economically feasible. 

(3) METHODOLOGIES.— (A) IN GENERAL.—The lead agency shall determine, in 

collaboration with cooperating agencies at appropriate 

times during the environmental review, the methodologies 

to be used and the level of detail required in the analysis 

of each alternative for a project. The lead agency shall include in the environmental document a description of the 

methodologies used and how the methodologies were selected. 

(B) NO EVALUATION OF INAPPROPRIATE ALTER- NATIVES.—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. 


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(B) SCHEDULE.— 

(i) IN GENERAL.—The lead agency shall establish 

as part of the coordination plan for a project, after consultation with each participating agency and, where 

applicable, the project sponsor, a schedule for completion of the environmental review. The schedule shall 

include deadlines, consistent with subsection (i), for decisions under any other Federal laws (including the 

issuance or denial of a permit or license) relating to the 

project that is covered by the schedule. 

(ii) FACTORS FOR CONSIDERATION.—In establishing 

the schedule, the lead agency shall consider factors 

such as— 

(I) the responsibilities of participating agencies 

under applicable laws; 

(II) resources available to the participating 

agencies; 

(III) overall size and complexity of the project; 

(IV) overall schedule for and cost of the 

project; 

(V) the sensitivity of the natural and historic 

resources that could be affected by the project; and 

(VI) the extent to which similar projects in geographic proximity were recently subject to environmental review or similar State procedures. 

(iii) COMPLIANCE WITH THE SCHEDULE.— 

(I) All participating agencies shall comply 

with the time periods established in the schedule 

or with any modified time periods, where the lead 

agency modifies the schedule pursuant to subparagraph (D). 

(II) The lead agency shall disregard and shall 

not respond to or include in any document prepared under NEPA, any comment or information 

submitted or any finding made by a participating 

agency that is outside of the time period established in the schedule or modification pursuant to 

subparagraph (D) for that agency’s comment, submission or finding. 

(III) If a participating agency fails to object in 

writing to a lead agency decision, finding or request for concurrence within the time period established under law or by the lead agency, the agency 

shall be deemed to have concurred in the decision, 

finding or request. 

(C) CONSISTENCY WITH OTHER TIME PERIODS.—A 

schedule under subparagraph (B) shall be consistent with 

any other relevant time periods established under Federal 

law. 

(D) MODIFICATION.—The lead agency may— 

(i) lengthen a schedule established under subparagraph (B) for good cause; and 

(ii) shorten a schedule only with the concurrence of 

the cooperating agencies. 


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(E) DISSEMINATION.—A copy of a schedule under subparagraph (B), and of any modifications to the schedule, 

shall be— 

(i) provided within 15 days of completion or modification of such schedule to all participating agencies 

and to the project sponsor; and 

(ii) made available to the public. 

(F) ROLES AND RESPONSIBILITY OF LEAD AGENCY.— With respect to the environmental review for any project, 

the lead agency shall have authority and responsibility to 

take such actions as are necessary and proper, within the 

authority of the lead agency, to facilitate the expeditious 

resolution of the environmental review for the project. 

(i) DEADLINES.—The following deadlines shall apply to any 

project subject to review under NEPA and any decision under any 

Federal law relating to such project (including the issuance or denial of a permit or license or any required finding): 

(1) ENVIRONMENTAL REVIEW DEADLINES.—The lead agency 

shall complete the environmental review within the following 

deadlines: 

(A) ENVIRONMENTAL IMPACT STATEMENT PROJECTS.— For projects requiring preparation of an environmental impact statement— 

(i) the lead agency shall issue an environmental 

impact statement within 2 years after the earlier of the 

date the lead agency receives the project initiation request or a Notice of Intent to Prepare an Environmental Impact Statement is published in the Federal 

Register; and 

(ii) in circumstances where the lead agency has 

prepared an environmental assessment and determined 

that an environmental impact statement will be required, the lead agency shall issue the environmental 

impact statement within 2 years after the date of publication of the Notice of Intent to Prepare an Environmental Impact Statement in the Federal Register. 

(B) ENVIRONMENTAL ASSESSMENT PROJECTS.—For 

projects requiring preparation of an environmental assessment, the lead agency shall issue a finding of no significant 

impact or publish a Notice of Intent to Prepare an Environmental Impact Statement in the Federal Register within 1 

year after the earlier of the date the lead agency receives the 

project initiation request, makes a decision to prepare an 

environmental assessment, or sends out participating agency invitations. 

(2) EXTENSIONS.— 

(A) REQUIREMENTS.—The environmental review deadlines may be extended only if— 

(i) a different deadline is established by agreement 

of the lead agency, the project sponsor, and all participating agencies; or 

(ii) the deadline is extended by the lead agency for 

good cause. 

(B) LIMITATION.—The environmental review shall not 

be extended by more than 1 year for a project requiring 


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preparation of an environmental impact statement or by 

more than 180 days for a project requiring preparation of 

an environmental assessment. 

(3) ENVIRONMENTAL REVIEW COMMENTS.— (A) COMMENTS ON DRAFT ENVIRONMENTAL IMPACT

STATEMENT.—For comments by agencies and the public on 

a draft environmental impact statement, the lead agency 

shall establish a comment period of not more than 60 days 

after publication in the Federal Register of notice of the 

date of public availability of such document, unless— 

(i) a different deadline is established by agreement 

of the lead agency, the project sponsor, and all participating agencies; or 

(ii) the deadline is extended by the lead agency for 

good cause. 

(B) OTHER COMMENTS.—For all other comment periods 

for agency or public comments in the environmental review 

process, the lead agency shall establish a comment period 

of no more than 30 days from availability of the materials 

on which comment is requested, unless— 

(i) a different deadline is established by agreement 

of the lead agency, the project sponsor, and all participating agencies; or 

(ii) the deadline is extended by the lead agency for 

good cause. 

(4) DEADLINES FOR DECISIONS UNDER OTHER LAWS.—Notwithstanding any other provision of law, in any case in which 

a decision under any other Federal law relating to the undertaking of a project being reviewed under NEPA (including the 

issuance or denial of a permit or license) is required to be made, 

the following deadlines shall apply: 

(A) DECISIONS PRIOR TO RECORD OF DECISION OR FIND- ING 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 difVerDate Mar 15 2010 22:33 Jul 17, 2012 Jkt 019006 PO 00000 Frm 00041 Fmt 6659 Sfmt 6603 E:\HR\OC\HR596P1.XXX HR596P1

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ferent 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 

appoval within 30 days of the applicable deadline described in subparagraph (A) or (B). 

(D) FINAL AGENCY ACTION.—Any approval under subparagraph (C) is deemed to be final agency action, and 

may not be reversed by any agency. In any action under 

chapter 7 seeking review of such a final agency action, the 

court may not set aside such agency action by reason of 

that agency action having occurred under this paragraph. 

(j) ISSUE IDENTIFICATION AND RESOLUTION.— (1) COOPERATION.—The lead agency and the participating 

agencies shall work cooperatively in accordance with this section to identify and resolve issues that could delay completion 

of the environmental review or could result in denial of any approvals required for the project under applicable laws. 

(2) LEAD AGENCY RESPONSIBILITIES.—The lead agency shall 

make information available to the participating agencies as 

early as practicable in the environmental review regarding the 

environmental, historic, and socioeconomic resources located 

within the project area and the general locations of the alternatives under consideration. Such information may be based on 

existing data sources, including geographic information systems 

mapping. 

(3) PARTICIPATING AGENCY RESPONSIBILITIES.—Based on 

information received from the lead agency, participating agencies shall identify, as early as practicable, any issues of concern 

regarding the project’s potential environmental, historic, or socioeconomic impacts. In this paragraph, issues of concern include any issues that could substantially delay or prevent an 

agency from granting a permit or other approval that is needed 

for the project. 

(4) ISSUE RESOLUTION.— 

(A) MEETING OF PARTICIPATING AGENCIES.—At any 

time upon request of a project sponsor, the lead agency 

shall promptly convene a meeting with the relevant participating agencies and the project sponsor, to resolve issues 

that could delay completion of the environmental review or 

could result in denial of any approvals required for the 

project under applicable laws. 

(B) NOTICE THAT RESOLUTION CANNOT BE ACHIEVED.— 

If a resolution cannot be achieved within 30 days following 

such a meeting and a determination by the lead agency 


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that all information necessary to resolve the issue has been 

obtained, the lead agency shall notify the heads of all participating agencies, the project sponsor, and the Council on 

Environmental Quality for further proceedings in accordance with section 204 of NEPA, and shall publish such notification in the Federal Register. 

(k) REPORT TO CONGRESS.—The head of each Federal agency 

shall report annually to Congress— 

(1) the projects for which the agency initiated preparation 

of an environmental impact statement or environmental assessment; 

(2) the projects for which the agency issued a record of decision or finding of no significant impact and the length of time 

it took the agency to complete the environmental review for each 

such project; 

(3) the filing of any lawsuits against the agency seeking judicial review of a permit, license, or approval issued by the 

agency for an action subject to NEPA, including the date the 

complaint was filed, the court in which the complaint was filed, 

and a summary of the claims for which judicial review was 

sought; and 

(4) the resolution of any lawsuits against the agency that 

sought judicial review of a permit, license, or approval issued 

by the agency for an action subject to NEPA. 

(l) LIMITATIONS ON CLAIMS.— 

(1) IN GENERAL.—Notwithstanding any other provision of 

law, a claim arising under Federal law seeking judicial review 

of a permit, license, or approval issued by a Federal agency for 

an action subject to NEPA shall be barred unless— 

(A) in the case of a claim pertaining to a project for 

which an environmental review was conducted and an opportunity for comment was provided, the claim is filed by 

a party that submitted a comment during the environmental review on the issue on which the party seeks judicial review, and such comment was sufficiently detailed to 

put the lead agency on notice of the issue upon which the 

party seeks judicial review; and 

(B) filed within 180 days after publication of a notice 

in the Federal Register announcing that the permit, license, 

or approval is final pursuant to the law under which the 

agency action is taken, unless a shorter time is specified in 

the Federal law pursuant to which judicial review is allowed. 

(2) NEW INFORMATION.—The preparation of a supplemental 

environmental impact statement, when required, is deemed a 

separate final agency action and the deadline for filing a claim 

for judicial review of such action shall be 180 days after the 

date of publication of a notice in the Federal Register announcing the record of decision for such action. Any claim challenging agency action on the basis of information in a supplemental environmental impact statement shall be limited to 

challenges on the basis of that information. 

(3) RULE OF CONSTRUCTION.—Nothing in this subsection 

shall be construed to create a right to judicial review or place 


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1 42 U.S.C. §§ 4321–4347 (2012). 

2 5 U.S.C. §§ 551–59, 701–06, 1305, 3105, 3344, 5372, 7521 (2012). 

3Letter from Jim Bradley, Senior Director of Government Relations, American Rivers et al. 

to Members of the Subcomm. on Courts, Commercial and Administrative Law of the H. Comm. 

on the Judiciary (Apr. 25, 2012) (on file with Democratic staff of the H. Comm. on the Judiciary). 

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.—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. 

* * * * * * * 

Dissenting Views 

INTRODUCTION

H.R. 4377, the ‘‘Responsibly And Professionally Invigorating Development Act of 2012’’ or ‘‘RAPID Act,’’ is the latest in a series of 

anti-regulatory measures that are intended to prevent Federal 

agencies from implementing the responsibilities that Congress gave 

them to protect public health and safety. H.R. 4377 specifically 

does this by requiring these agencies to adhere to a complex process with respect to any construction project that is federally funded 

or that needs approval by a Federal agency through the issuance 

of a permit or regulatory decision. 

In sum, this bill prioritizes speed, one-size-fits-all deadlines, and 

project approval over protecting the public interest and the environment by truncating the deliberative process pursuant to which 

the environmental consequences of proposed projects are considered. Specifically, H.R. 4377: (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 the 

National Environmental Policy Act (NEPA),1 the law that this bill 

primarily seeks 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 may very well 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 Administrative Procedure Act (APA).2

Not surprisingly, 25 environmental groups, including the Audubon Society, League of Conservation Voters, Natural Resources Defense Council, Sierra Club, and The Wilderness Society, have expressed strong opposition to H.R. 4377.3 In addition, the White 


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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 Democratic staff of the H. Comm. on the Judiciary). 5 Id. at 1. 

House’s Council on Environmental Quality (CEQ), which coordinates the implementation of NEPA throughout the Executive 

Branch, adamantly opposes this bill.4 The CEQ observes that H.R. 

4377 is ‘‘deeply flawed’’ and that it ‘‘will undermine the environmental review process.’’ 5

For these reasons and those described below, we respectfully dissent and urge our colleagues to reject this seriously flawed bill. 

DESCRIPTION AND BACKGROUND

H.R. 4377 amends the APA to establish a 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. 

The bill was introduced on April 18, 2012 by Representative Dennis 

Ross (R–FL) together with Committee Chairman Lamar Smith (R– 

TX), Subcommittee on the Courts, Commercial and Administrative 

Law (CCAL) Chairman Howard Coble (R–NC), and Representative 

Collin Peterson (D–MN). The CCAL Subcommittee held a hearing 

on this bill on April 25, 2012. Majority witnesses were Gus 

Bauman, Esq. with Beveridge & Diamond; William Kovacs, Vice 

President for the Environment, Technology & Regulatory Affairs 

Division, U.S. Chamber of Commerce; and Tom Margro, CEO, 

Transportation Corridor Agencies. The Minority witness was Dinah 

Bear, former General Counsel, Council on Environmental Quality, 

who explained in detail the many problematic aspects of the bill. 

A section-by-section explanation of the reported version of the 

bill’s principal provisions follows. Section 2 adds a new subchapter 

to the APA. All further section references are to the proposed new 

provisions added by the bill. New section 560(a) sets forth a Congressional declaration of purpose. It states that this new subchapter is intended 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. The apparent scope of this 

provision is extremely extensive, as it is not limited to environmental actions by agencies. 

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 this Committee has considered this Congress has been intended to slow down or stop the regulatory processes of agencies. 

Subsection (b) sets forth various definitions, including those for 

environmental assessments, environmental impact statements 

(EISs), and findings of no significant impact (FONSIs). An environmental document (ED), for example, means an environmental asVerDate Mar 15 2010 22:33 Jul 17, 2012 Jkt 019006 PO 00000 Frm 00045 Fmt 6659 Sfmt 6601 E:\HR\OC\HR596P1.XXX HR596P1

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sessment or an EIS, including any supplemental document or document prepared pursuant to a court order. 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 construction activities 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 a broad range of activities that go beyond construction projects. These activities include such diverse undertakings as management plans; fishing, 

hunting, and grazing permits; Defense Department base realignment and closures activities; and treaties. 

Subsection (c) authorizes the lead agency (which is the Federal 

agency responsible for preparing an environmental assessment or 

EIS) to request 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), 

to prepare any document for purposes of an environmental review 

by a Federal agency, providing the lead 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 environmental assessment may be prepared for a project, except for supplemental environmental documents prepared under NEPA or environmental documents prepared pursuant to court order. The lead 

agency must prepare the EIS or environmental assessment ‘‘except 

as otherwise provided by law,’’ or, in other words, as provided by 

subsection (c). 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 ED prepared by the 

lead agency. 

Subsection (d)(1)(B) provides that upon request of a project sponsor, a lead agency may 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 and why it is needed. 

Under current law, a lead agency may utilize such analyses whether the project sponsor requests it or not. 

Subsection (d)(2)(A) requires that a lead agency, upon request of 

a project sponsor, to adopt a document prepared for a project under 

state law and procedures as the EIS or environmental assessment 

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 lead agency’s obligation under NEPA 

to prepare an EIS or environmental assessment. 


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Subsection (d)(2)(C) provides that the lead agency—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 45 days from publication of the 

supplement. It is unclear whether this time frame would be sufficient for all projects. 

Subsection (d)(2)(E) requires a lead agency 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 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, subsection (d)(3) authorizes the lead agency 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 lead agency 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 to be substantially similar to NEPA. 

Subsection (e)(1) requires the lead agency to be responsible for 

inviting and designating participating agencies in accordance with 

subsection (e) and such invitation and notice of designation must 

be in writing. 

Subsection (e)(2) provides that a Federal agency required to 

adopt the lead agency’s ED for a project must be designated as a 

participating agency and collaborate on the preparation of the ED, 

unless the agency informs the lead agency in writing by a time 

specified by the lead agency 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 lead agency 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 and heads of ‘‘appropriate’’ tribal and local governments. 

Such invitation must set a 30-day deadline for responses to be submitted. This period may be extended by the lead agency for good 

cause shown. Any agency that fails to respond prior to the deadline 

is deemed to have declined the invitation. This 30-day time frame 

may be unreasonable under certain circumstances. 

Subsection (e)(4) pertains to an agency that declines a designation or invitation by a lead agency to be a participating agency. It 

precludes such agency from submitting comments on any document 

prepared under NEPA for such project or taking any measures to 


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oppose, based on the environmental review, any permit, license, or 

approval related to such project. This prohibition may preclude an 

agency from bringing to the attention of the lead agency critical information and thereby allow the lead agency to disregard such information. This appears to be a very shortsighted provision. On the 

one hand, it could encourage various agencies, even those with only 

a peripheral interest in the project, to become a participating agency 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 the designation as a participating 

agency 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 lead agency to designate a participating agency as a cooperating agency under 40 C.F.R. part 1500. 

Such designation has no effect on the agency’s designation as a 

participating agency. On the other hand, only a participating agency may be designated as a cooperating agency. It is not clear, however, what the substantive differences are between a participating 

agency 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 participating agency 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 lead agency cannot act 

upon, respond to, or include in any document prepared under 

NEPA any comment submitted by a participating agency that concerns matters outside of the participating agency’s authority and 

expertise. 

Subsection (f)(1) requires the project sponsor to give the Federal 

agency responsible for undertaking a project 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 lead agency for the project. 

In turn, the lead agency must initiate the environmental review 

within 45 days of receipt of such notice by inviting or designating 

agencies to become a PA. If the lead agency determines that no 

participating agency 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 lead agency, 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 


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range of alternatives to be considered for a project. Note that this 

is the first and only time that the term ‘‘scoping’’ is used in this 

legislation. It is undefined. This illustrates the problem of creating 

a parallel universe on an incomplete basis with key terms that are 

vague and undefined. 

Subsection (g)(2) provides that following participation pursuant 

to the above, the lead agency must determine the range of alternatives for consideration in any document that the lead agency is 

responsible for preparing for the project, subject to certain limitations. First, no Federal agency may 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. 

This prohibition may be overly restrictive depending on the circumstances presented. Second, where a project is being constructed, managed, funded, or undertaken by a project sponsor that 

is not a Federal agency, Federal agencies may 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 that are technically and economically feasible. 

This requirement may also be overly restrictive under certain circumstances. 

Subsection (g)(3)(A) requires the lead agency 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 lead agency 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 lead agency 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) authorizes the lead agency, in its discretion, to 

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 lead agency 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 environmental assessment to identify the potential effects 

of such alternative on employment, including potential short-term 

and long-term impacts. 

Subsection (h)(1)(A) requires the lead agency to establish and implement a plan for coordinating public and agency participation 

and 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 lead agency, after consultation 

with each participating agency 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 participating agency must comply with such time 


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periods. The lead agency must disregard, not respond to, or not 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 periods established in the schedule. If 

a participating agency fails to object in writing to a lead agency’s 

decision, finding, or request for concurrence within the time period 

established by law or by the lead agency, the agency shall be 

deemed to have concurred in the decision, finding, or request. The 

provision is problematic where there is a conflict between current 

law and the lead agency’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 lead agency to lengthen an established 

schedule for good cause. The lead agency may shorten it only with 

the concurrence of the cooperating agencies. Subsection (h)(1)(E) requires a copy of the schedule and any modification to be provided 

to all participating agencies and the project sponsor within 15 days 

of completion or modification and made available to the public. 

This provision, however, fails to specify who is to make the schedule available and how it is to be made available to the public. Finally, subsection (h)(1)(F) provides that the lead agency 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. Note that there is no paragraph (2). 

Subsection (i) sets forth various deadlines applicable to any 

project subject to review under NEPA 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 EIS, the lead agency must issue such statement within 2 

years after the earlier of the date on which the lead agency receives the project initiation request or a Notice of Intent to Prepare 

an EIS is published in the Federal Register. Where the lead agency 

has prepared an environmental assessment and determined that 

an EIS is required, the lead agency must issue the EIS within 2 

years from the date of publication of the Notice of Intent to Prepare 

an EIS in the Federal Register. For a project requiring an environmental assessment, the lead agency 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 lead agency receives the 

project initiation request, makes a decision to prepare an environmental assessment, or sends out participating agency invitations. 

These deadlines may be extended only if a lead agency, project 

sponsor and participating agency jointly agree or the lead agency 

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 environmental assessment 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 lead agency 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 lead agency, project sponsor, 

and participating agency, or the deadline is extended by the lead 

agency for good cause. For all other comment periods for agency or 

public comments in the environmental review process, the lead 


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agency must 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 lead agency, project sponsor, and participating agency, or if the 

deadline is extended by the lead agency 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 

relates to the undertaking of a project reviewed under NEPA. With 

respect to instances where a Federal agency must approve or otherwise act upon a permit, license or similar application for approval 

relating to a project prior to the record of decision or FONSI, subsection (i)(4)(A) requires such agency to approve or otherwise act 

no later than 90 days after: (1) all other relevant agency review relating to the project is complete; and (2) the lead agency 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. Disputes could arise as to what constitutes ‘‘good cause.’’ 

Also, it is unclear what ‘‘otherwise act’’ would mean. 

With respect to any approval or other action related to a project 

by a Federal agency not covered above, subsection (i)(4)(B) requires 

such agency to approve or otherwise act not later than 180 days 

after: (1) all other relevant agency review related to the project is 

complete; and (2) the lead agency issues the record of decision or 

FONSI, unless a different deadline is established by agreement of 

the Federal agency, lead agency, and project sponsor, or the Federal agency extends the deadline for good cause. Such extension 

may not be longer than 1 year after the lead agency issues the 

record of decision or FONSI. This provision gives the project sponsor a lot of control. Disputes could arise as to what constitutes 

‘‘good cause.’’ The time frame may be unreasonable under certain 

circumstances. Also, it is not clear what ‘‘otherwise act’’ would 

mean. 

If the Federal agency fails to approve or otherwise act upon a 

permit, license, or other similar application for approval related to 

a project within the time frames set forth above, subsection (i)(4)(C) 

provides that such permit, license, or application must be deemed 

approved by such agency and the agency must take action in accordance with such approval within 30 days of the applicable time 

frame. This provision would be very problematic for highly complex 

projects that require more time for review. Subsection (i)(4)(D) prohibits another agency from reversing a permit, license or application deemed approved under subsection (C). Also, it prohibits a 

court from setting aside such deemed approval by reason that it occurred under subsection (C). 

Subsection (j)(1) requires the lead agency and participating agency 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. 

This subsection does not address the situation where, for example, 

a participating agency chooses not to work cooperatively. 

Subsection (j)(2) requires the lead agency to make information 

available to a participating agency as early as practicable in the 

environmental review regarding the environmental, historic, and 


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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. The ramifications that would result 

if the lead agency fails to comply with this provision are unclear. 

Subsection (j)(3) requires the participating agency, based on information received from the lead agency, to identify as early as 

practicable any issue of concern regarding the project’s potential 

environmental, historic, or socioeconomic impacts. It is unclear 

what happens if the participating agency’s concerns are not based 

on information provided by the lead agency. 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. Thus, the bill would essentially codify 

a presumption that all projects should be approved in some form. 

Subsection (j)(4) requires the lead agency, upon request of a 

project sponsor to 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 such project. If a resolution 

cannot be achieved within 30 days following such meeting and a 

determination by the lead agency that all information necessary to 

resolve the issue has been obtained, the lead agency must notify all 

participating agencies, the project sponsor, and the CEQ for further 

proceedings in accordance with section 204 of NEPA and 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 environmental assessment; (2) 

projects for which the agency issued a record of decision or FONSI 

and the length of time it took for the agency to complete the environmental review for each such project; (3) filing of any lawsuits 

against the agency seeking judicial review of a permit, license, or 

approval issued by the agency for an action subject to NEPA, including the date the complaint was filed, the court in which the 

complaint was filed, and a summary of the claims for which judicial 

review was sought; and (4) the resolution of such lawsuits. 

Subsection (l)(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 and for which an 

opportunity for comment was provided, 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 lead agency 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 


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6 33 U.S.C. §§ 1344 et seq. (2012). 

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, which is an unrealistic time frame. Also, the CEQ must designate states with laws and procedures that satisfy 5 U.S.C. section 

560(d)(2)(A), as added by the bill. 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. Again, these time frames may not be feasible. 

CONCERNS WITH H.R. 4377

H.R. 4377 imposes a series of 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) that require Federal approval pursuant to a Federal law, such as the Clean Water Act.6 To ensure 

compliance with NEPA, the CEQ has issued regulations and guidance that makes measures such as H.R. 4377 unnecessary. Moreover, courts have developed a large body of case law interpreting 

the key terms of NEPA that have guided its implementation. 

Contrary to the bill’s title, H.R. 4377 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, which is committed to 

with maximizing shareholder interests. 

I. H.R. 4377 Addresses a Largely Nonexistent Problem under NEPA 

While not perfect, the NEPA framework for environmental reviews works very well. The vast majority of projects requiring FedVerDate Mar 15 2010 22:33 Jul 17, 2012 Jkt 019006 PO 00000 Frm 00053 Fmt 6659 Sfmt 6601 E:\HR\OC\HR596P1.XXX HR596P1

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7 Responsibly And Professionally Invigorating Development (RAPID) Act of 2012: Hearing on 

H.R. 4377 Before the Subcomm. on Courts, Commercial and Admin. L. of the H. Comm. on the 

Judiciary, 112th Cong. 193 (2012) (response of Dinah Bear to questions for the record from Subcommittee Ranking Member Steve Cohen) (emphases in the original). 

eral approval go through the NEPA process in a timely manner. Of 

the remaining projects that actually require a formal environmental review leading to an environmental impact statement (EIS) 

or environmental assessment because of the complexity of the 

issues they present, NEPA provides flexibility to permit careful review without imposing artificial deadlines. 

To the extent that H.R. 4377 is intended to reduce delays in the 

conduct of environmental reviews of Federal projects, it is aimed at 

the wrong target. Broadly speaking, H.R. 4377 attempts to shortcircuit the existing environmental review processes under NEPA 

and its implementing regulations. As Dinah Bear, who served as 

the CEQ’s General Counsel for 25 years during the Reagan, George 

H.W. Bush, Clinton, and George W. Bush administrations and who 

was intimately involved in the implementation of NEPA throughout the Executive Branch, observed, most delays in the environmental review processes are caused by factors other than NEPA or 

are justified by the nature of the project in question. Specifically, 

she noted: 

[T]he principal causes of unjustified delay in implementing 

the NEPA review process are inadequate agency resources, 

inadequate training, inadequate leadership in implementing conflict dispute resolution mechanisms (both internal and interagency), and lack of coordination between 

Federal agencies and agencies at the county, tribal and 

state level, including and in particular coordinated, single 

environmental review processes in cases where government agencies at other levels have environmental review 

procedures. Causes of justified delay include the complexity of proposed projects and the associated impacts of 

them, changes in the proposed project, the extent and nature of public controversy, changes in budget and policy direction, including Congressional oversight, and new information.7

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 


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8Linda 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. 

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.8

In light of the foregoing, H.R. 4377’s focus on upending the NEPA 

review process for construction projects is, at best, misplaced. 

To assess the true scope of purported delays in the environmental review process, Representative Sheila Jackson Lee (D–TX) 

offered an amendment at markup that would have required the 

Government Accountability Office to study and report to Congress 

on the amount of time required to complete environmental reviews 

under NEPA for projects going back 4 years prior to the bill’s enactment date. The amendment was defeated by an 11 to 12 vote 

along party lines. 

II. H.R. 4377 Establishes a Parallel Regulatory Approval Scheme 

That Will Lead to Confusion, Delay, and Litigation 

Rather than streamlining the NEPA process, H.R. 4377 only 

adds complication, confusion, and potential litigation to the process. 

NEPA establishes a flexible framework for environmental impact 

reviews that applies to all Federal agencies and all actions affecting the environment that require Federal approval. This panoply of 

Federal actions includes fishing, hunting, and grazing permits, 

land management plans, military base realignment and closure activities, and treaties. The changes to the NEPA review process contemplated by H.R. 4377, however, apply only to a subset of Federal 

activities, namely, proposed Federal construction projects, which 

the bill itself does not define. At the outset, H.R. 4377 could lead 

to litigation over whether a given project is a ‘‘construction project’’ 

subject to this new, non-NEPA review process. 

Additionally, the establishment of a different NEPA review process for an undefined subset of Federal activities could lead to two 

different environmental review processes for the same project. Consider the construction of a new nuclear reactor facility. H.R. 4377 

would apply to the building phase of the project, but not to the relicensing or 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 

laws to one undertaking. 

H.R. 4377 will further cause confusion by incorporating some facets of current NEPA practice, but ignoring 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 alterVerDate Mar 15 2010 22:33 Jul 17, 2012 Jkt 019006 PO 00000 Frm 00055 Fmt 6659 Sfmt 6601 E:\HR\OC\HR596P1.XXX HR596P1

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natives to the project are ‘‘economically feasible,’’ which is a new 

term. As a result, courts will be required to interpret new terminology and requirements without the benefit of any precedent. 

Further still, the bill would import state law into the Federal approval process. New section 560(d)(2) would direct the lead agency 

to adopt a document prepared for a project under state law if such 

law and the state’s procedure are ‘‘substantially equivalent to 

NEPA.’’ First, it is important to keep in mind that few states have 

meaningful environmental laws. Second, 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. 

The bill presents the potential for numerous unintended consequences. For example, section 560(e) 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. 

Rather than streamlining the environmental review process as 

set forth in the bill’s findings, H.R. 4377 will result in delay stemming from litigation over the numerous discrepancies between H.R. 

4377 and current CEQ regulations implementing NEPA. These include new or inconsistent definitions, the expansion of a project 

sponsor’s authority to prepare any NEPA document rather than 

just environmental assessments, and more limited opportunity to 

evaluate alternatives. 

H.R. 4377’s ultimate effect will be to both undermine longstanding and effective environmental reviews under NEPA while 

also potentially hampering agencies from engaging in proper environmental reviews by creating unnecessary confusion, litigation, 

and delay. Such delay will ultimately harm public health and safety by slowing down the approval process for any health or safety 

related construction projects. 

In an effort to ensure that H.R. 4377 would not delay certain 

critical projects, two Members offered amendments that would 

have carved out exceptions from the bill for these undertakings. 

Representative Hank Johnson (D–GA) offered an amendment at 

markup that would have limited H.R. 4377 to those projects that 

CEQ determines would not have a detrimental effect on human 

health. This amendment was defeated by a 10 to 13 vote along 

party lines. Representative Jerrold Nadler (D–NY) offered an 

amendment at markup that would have excepted from H.R. 4377 

any project pertaining to nuclear safety. This amendment was defeated by a 12 to 13 vote also along party lines. 

III. H.R. 4377 Forecloses Potentially Meaningful Public and Government Input and Imposes Rigid One-Size-Fits-All Deadlines 

Several provisions in H.R. 4377 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 the ability of such agency to provide 

helpful input. Similarly, the bill prevents a lead agency from conVerDate Mar 15 2010 22:33 Jul 17, 2012 Jkt 019006 PO 00000 Frm 00056 Fmt 6659 Sfmt 6601 E:\HR\OC\HR596P1.XXX HR596P1

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9 40 C.F.R. § 1502.14 (2012). 

sidering any untimely comments, even if they provide meaningful 

insight. 

H.R. 4377 minimizes the important role that the public plays in 

the NEPA process, such as participation in scoping, proposing alternatives, review of analyses and public comment, whether written or in public hearings. NEPA requires agencies to use a wide 

range of outreach mechanisms to solicit views by people who would 

be affected by the proposed project. 

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. 

H.R. 4377 also restricts public participation by limiting judicial 

review of certain agency actions. Specifically, section 560(i)(4)(D) 

prohibits a court from reversing an agency’s approval of a permit, 

license, or other similar application when such application had 

been ‘‘deemed’’ approved because of the agency’s failure to meet an 

applicable deadline under H.R. 4377. 

The NEPA process is designed to facilitate public participation 

and interagency cooperation in the review of potential environmental impacts of Federal actions. To highlight this fundamental 

purpose of NEPA, Ranking Member John Conyers, Jr. (D–MI) offered an amendment at markup that simply would have added a 

rule of construction to H.R. 4377 clarifying that nothing in H.R. 

4377 shall be construed to change or limit any law or regulation 

that requires or provides for public comment or public participation 

in the agency decisionmaking process. The amendment was defeated by a 12 to 13 vote along party lines, an implicit admission 

against interest to the extent that H.R. 4377’s proponents claim 

that it does not adversely affect the public’s ability to participate 

in environmental reviews. 

IV. H.R. 4377 Institutionalizes Bias Towards Approving an Agency’s Preferred Alternative 

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.9

H.R. 4377 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 


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10 H.R. 4377 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. 

alternatives if the agency determines that such analysis will not 

prevent it from making an impartial decision as to whether to accept another alternative. While this may seem fine in theory, in reality, developing one alternative to a higher level of detail than 

other alternatives inevitably raises the risk that the preferred alternative will be more likely to be approved than the other alternatives, including the alternative of non-approval. 

Second, the various provisions that mandate ‘‘approval by default’’ if deadlines are not met, as well as the provision in subsection (j)(1) requiring resolution of issues that ‘‘could result in denial of any approvals,’’ all demonstrate a bias towards project approval. While project approval may well be the optimum result in 

many situations, Congress should not be weighing in across the 

spectrum of almost a hundred Federal agencies to dictate in advance that all proposed projects are worthy of approval, no matter 

what their impacts might be to the environment, to affected citizens, and to the public fisc.10

V. H.R. 4377 Is a Thinly Disguised Effort to Amend NEPA by 

Amending the APA 

H.R. 4377 makes substantive changes to NEPA and its implementing regulations through the ruse of amending the APA. NEPA 

is not within the jurisdiction of the Judiciary Committee. The proponents of this bill, however, purport to amend the APA as this law 

is within our Committee’s jurisdiction. This is a very problematic 

and deceptive practice that our Committee must oppose. We must 

not allow the APA to operate as a back door to amending substantive law that is not within the Committee’s jurisdiction. 

H.R. 4377’s proponents have never offered a reason why any of 

the changes to or codifications of NEPA practice and other laws 

contemplated in H.R. 4377 should belong in the APA, either during 

the CCAL hearing or the full Committee markup of this bill. Simply put, there is no substantive reason why amendments or additions to NEPA’s environmental review requirements or to requirements under other laws cannot be accomplished by amending 

NEPA or these other laws directly. 

The APA is the ‘‘administrative Constitution’’ and, like the U.S. 

Constitution, is a broad framework that should not be tinkered 

with lightly. If enacted, H.R. 4377 opens the door to amending 

other statutes or substantive law by simply adding subchapters to 

the APA. This is not the purpose or function of the APA, and this 

Committee should guard against that temptation. 

To address this concern, Representative Steve Cohen (D–TN) offered an amendment during markup that would have struck the 

creation of a new APA subchapter and re-stated the substantive 

portions of H.R. 4377 as freestanding legislative language. Representative Dennis Ross (R–FL), the bill’s sponsor, failed to even 


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59 

11 Unofficial Tr. of Markup of H.R. 4377, the Responsibly And Professionally Invigorating Development Act of 2012: Markup of H.R. 4377 Before the H. Comm. on the Judiciary, 112th Cong. 

157 (2012). 

address our concern that H.R. 4377 misuses the APA.11 Nevertheless, this amendment was defeated by a 9 to 10 vote along party 

lines. 

CONCLUSION

H.R. 4377 is based on the unproven assumptions that there are 

unwarranted delays in the environmental review process required 

by NEPA and in permit approvals and, to the extent that there are 

such delays, that NEPA is to blame for such delays. The bill also 

will result in confusion, litigation, and delay by creating 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. 4377. 

JOHN CONYERS, JR. 

HOWARD L. BERMAN. 

JERROLD NADLER. 

MELVIN L. WATT. 

SHEILA JACKSON LEE. 

STEVE COHEN. 

HENRY C. ‘‘HANK’’ JOHNSON, JR. 

MIKE QUIGLEY. 

JUDY CHU. 

TED DEUTCH. 

JARED POLIS. 

Æ 


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